Republic of the Philippines Supreme Court Manila SECOND DIVISION NATIONAL POWER CORPORATION, Petitioner, G.R. No.

180979 Present: CARPIO, J., Chairperson, NACHURA, PERALTA, ABAD, and MENDOZA, JJ. Promulgated: TERESITA DIATO-BERNAL, Respondent. x------------------------------------------------------------------------------------x December 15, 2010

- versus -

RESOLUTION NACHURA, J.:

At bar is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking the reversal of the September 28, 2007 Decision[1] and the December 17, 2007 Resolution[2] of the Court of Appeals (CA). The assailed issuances affirmed the January 14, 2000 Order[3] of the Regional Trial Court (RTC), Branch 20, Imus, Cavite, which fixed the just compensation at P10,000.00 per square meter (sq m), in relation to the expropriation suit, entitled National Power Corporation v. Teresita DiatoBernal. The factual antecedents are undisputed. Petitioner National Power Corporation (NAPOCOR) is a government owned and controlled corporation created by Republic Act No. 6395,[4] as amended, for the purpose of undertaking the

development of hydroelectric power throughout the Philippines. To carry out the said purpose, NAPOCOR is authorized to exercise the power of eminent domain.[5] Respondent Teresita Diato-Bernal (respondent) is the registered owner of a 946 sq m parcel of land situated along General Aguinaldo Highway, Imus, Cavite, covered by Transfer Certificate of Title No. T-384494.[6] In order to complete the construction of structures and steel posts for NAPOCORs Dasmarias-Zapote 230 KV Transmission Line Project, it had to acquire an easement of right of way over respondents property.[7] Thus, on January 8, 1997, NAPOCOR filed an expropriation suit against respondent, alleging, inter alia, that: the project is for public purpose; NAPOCOR negotiated with respondent for the price of the property, as prescribed by law, but the parties failed to reach an agreement; and NAPOCOR is willing to deposit the amount of Eight Hundred Fifty- Three Pesos and 72/100 (P853.72), representing the assessed value of the property for taxation purposes.[8] Respondent moved for the actions dismissal, arguing the impropriety of the intended expropriation, and claiming that the value of her property is Twenty Thousand Pesos (P20,000.00) per sq m for the front portion, and Eighteen Thousand Pesos (P18,000.00) per sq m for the rear portion, and that she will lose One Hundred Fifty Thousand Pesos (P150,000.00) per month by way of expected income if the property is expropriated.[9] On September 25, 1998, the parties filed with the RTC a partial compromise agreement,[10] which reads: 1. That the parties, after earnest and diligent efforts, have reached an amicable settlement regarding the location and size of Pole Site No. DZ-70 to be constructed on the property of (respondent); That the parties have agreed that the said Pole Site No. DZ-70 shall be constructed or located on (respondents) Lot No. 6075-B covered by Transfer Certificate of Title No. T-384494 of the Registry of Deeds for Cavite, covering a total affected area of 29.25 square meters more or less as indicated in the Sketch hereto attached as Annex A; That the case shall[,] however, proceed to trial on its merits only with respect to the question of just compensation.

2.

3.

The agreement was approved by the RTC in its Order dated September 25, 1998.[11] With the first phase of the expropriation proceedings having been laid to rest by the partial compromise agreement, the RTC proceeded to determine the amount of just compensation. To assist in the evaluation of the fair market value of the subject property, the RTC appointed three (3) commissioners, viz.: (1) the Provincial Assessor of Cavite; (2) the Municipal Assessor of Imus, Cavite, upon recommendation of NAPOCOR; and (3) Soledad Zamora, respondents representative.[12] The commissioners submitted their report to the RTC on September 14, 1999. In the main, they recommended that the just compensation due from NAPOCOR be pegged at P10,000.00 per sq m, based on the propertys fair market value.[13] NAPOCOR filed an Opposition[14] to the Commissioners Valuation Report, asserting that it was not substantiated by any official documents or registered deeds of sale of the subject propertys neighboring lots. NAPOCOR invoked our ruling in Rep. of the Phil. v. Santos,[15] wherein we held that a commissioners report that is not based on any documentary evidence is hearsay and should be disregarded by the court. Lastly, NAPOCOR claimed that the just compensation for the expropriated property should beP3,500.00 per sq m, based on Resolution No. 08-95 dated October 23, 1995, enacted by the Provincial Appraisal Committee of Cavite (PAC-Cavite). On January 14, 2000, the RTC issued an Order adopting the recommendation of the commissioners, viz.: To the mind of the Court, the appraisal made by the Commissioners is just and reasonable. It is of judicial notice that land values in Cavite ha[ve] considerably increased. Such being the case, the just compensation is fixed at P10,000.00 per sq. meter.[16]

Dissatisfied, NAPOCOR sought recourse with the CA, reiterating the arguments raised in its Opposition. On September 28, 2007, the CA rendered its Decision affirming the RTCs judgment. [17] Its motion for reconsideration[18] having been denied,[19] NAPOCOR interposed the present petition. NAPOCOR, through the Office of the Solicitor General, repleads its contentions before the courts a quo and adds that the CA failed to explain why the value of the subject property went up by

almost 200% in a span of two (2) years - P3,500.00 per sq m in 1995 to P10,000.00 per sq m at the time of the filing of the expropriation complaint in 1997. For her part, respondent prays for the dismissal of the petition on the ground that it raises purely factual questions which are beyond the province of a Petition for Review on Certiorari under Rule 45 of the Rules of Court. The petition is meritorious. We shall first address the procedural infirmity raised by respondent. In Santos v. Committee on Claims Settlement,[20] the Court had occasion to delineate the distinction between a question of law and a question of fact, thus: A question of law exists when there is doubt or controversy on what the law is on a certain state of facts. There is a question of fact when the doubt or difference arises from the truth or the falsity of the allegations of facts. The Court elucidated as follows: A question of law exists when the doubt or controversy concerns the correct application of law or jurisprudence to a certain set of facts; or when the issue does not call for an examination of the probative value of the evidence presented, the truth or falsehood of facts being admitted. A question of fact exists when the doubt or difference arises as to the truth or falsehood of facts or when the query invites calibration of the whole evidence considering mainly the credibility of the witnesses, the existence and relevancy of specific surrounding circumstances as well as their relation to each other and to the whole, and the probability of the situation.[21]

In this case, it is clear that NAPOCOR raises a question of law, that is, whether or not the resolution of the PAC-Cavite should prevail over the valuation report of the court-appointed commissioners. The issue does not call for a recalibration or reevaluation of the evidence submitted by the parties, but rather the determination of whether the pertinent jurisprudence and laws cited by NAPOCOR in support of its argument are applicable to the instant case. On the substantive issue, the Court finds that the CA and the RTC erred in relying on the unsubstantiated and insufficient findings contained in the commissioners report.

In arriving at the P10,000.00 per sq m market value of the expropriated property, the commissioners utilized the following factors: I. PROPERTY LOCATION The property subject of the appraisal is situated along Gen. Aguinaldo Highway, Brgy. Anabu, Municipality of Imus, Province of Cavite, consisting of 946 sq. m. more or less, identified as Lot 6075-B with Flat Terrain approximately 5 kms. Distance Southwest of Imus Town proper, about 500 to 600 m. from the entrance gate of Orchard Club and San Miguel Yamamura Corp. from Southeast around 1 km. [t]o 1.5 kms. From EMI (Yasaki), Makro, and Robinsons Department Store. II. NEGHBORHOOD DESCRIPTION The neighborhood particularly in the immediate vicinity, is within a mixed residential and commercial area situated in the Southern Section of the Municipality of Imus which is transversed by Gen. Emilio Aguinaldo Highway w[h]ere several residential subdivisions and commercial establishments are located. Residential houses in the area are one to two storey in height constructed of concrete and wood materials belonging to families in the middle income bracket, while commercial buildings mostly located along Gen. Emilio Aguinaldo Highway. Some of the important landmarks and commercial establishments in the immediate vicinity are: Newly constructed Robinsons Department Store Makro Caltex Gasoline station and Shell Gasoline station Goldbomb Const. Corp. EMI (Yasaki) Pallas Athena Subd. and various Commercial and Savings Banks Community [c]enters such as school, churches, public markets, shopping malls, banks and gasoline stations are easily accessible from the subject property. Convenience facility such as electricity, telephone service as well as pipe potable water supply system are all available along Gen. Aguinaldo Highway xxxx IV. VALUATION OF LAND MARKET DATA

This method of valuation involves the research and investigation of market and sales data of the properties comparable with the property under appraisal. These other properties are compare[d] with the subject property as to location and physical characteristics. Adjustment of their selling prices [is] then made with respect to the said comparative elements as well as time compensate for the increase or decrease in value. Based on our investigations and verifications of market sales data and price listings of the neighborhood where the property under appraisal is located indicates land value within the range ofP10,000.00 to P15,000.00 per square meter for residential lots while commercial lots along Gen. E. Aguinaldo Highway are range[d] from P10,000.00 to P20,000.00 per square meters (sic). With this data and making the proper adjustment with respect to the location, area, shape, accessibility, and the highest and best use of the subject property, we estimate the market value of the subject land at P10,000.00 per square meter, as of this date September 10, 1999.[22]

It is evident that the above conclusions are highly speculative and devoid of any actual and reliable basis. First, the market values of the subject propertys neighboring lots were mere estimates and unsupported by any corroborative documents, such as sworn declarations of realtors in the area concerned, tax declarations or zonal valuation from the Bureau of Internal Revenue for the contiguous residential dwellings and commercial establishments. The report also failed to elaborate on how and by how much the community centers and convenience facilities enhanced the value of respondents property.[23] Finally, the market sales data and price listings alluded to in the report were not even appended thereto. As correctly invoked by NAPOCOR, a commissioners report of land prices which is not based on any documentary evidence is manifestly hearsay and should be disregarded by the court.[24] The trial court adopted the flawed findings of the commissioners hook, line, and sinker. It did not even bother to require the submission of the alleged market sales data and price listings. Further, the RTC overlooked the fact that the recommended just compensation was gauged as of September 10, 1999 or more than two years after the complaint was filed on January 8, 1997. It is settled that just compensation is to be ascertained as of the time of the taking, which usually coincides with the commencement of the expropriation proceedings. Where the institution of the action precedes entry into the property, the just compensation is to be ascertained as of the time of

the filing of the complaint.[25] Clearly, the recommended just compensation in the commissioners report is unacceptable. Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator. The measure is not the takers gain, but the owners loss. The word just is used to intensify the meaning of the word compensation and to convey thereby the idea that the equivalent to be rendered for the property to be taken shall be real, substantial, full, and ample.[26] Indeed, the just-ness of the compensation can only be attained by using reliable and actual data as bases in fixing the value of the condemned property. The trial court should have been more circumspect in its evaluation of just compensation due the property owner, considering that eminent domain cases involve the expenditure of public funds. As to the resolution of the PAC-Cavite advanced by NAPOCOR, which pegged the fair market value of the property at P3,500.00 per sq m, it can only serve as one of the factors in the judicial evaluation of just compensation, along with several other considerations.[27] NAPOCOR cannot demand that the PAC-Cavite resolution be substituted for the report of court-appointed commissioners in consonance with the firm doctrine that the determination of just compensation is a judicial function.[28] Hence, the legal basis for the determination of just compensation being insufficient, the ruling of the RTC and the affirming Decision and Resolution of the CA ought to be set aside. WHEREFORE, the petition is GRANTED. The January 14, 2000 Order of the Regional Trial Court, Branch 120, Imus, Cavite, and the September 28, 2007 Decision and the December 17, 2007 Resolution of the Court of Appeals are hereby SET ASIDE. This case is remanded to the trial court for the proper determination of just compensation, in conformity with this Resolution. No costs. SO ORDERED.

[1]

Penned by Associate Justice Sesinando E. Villon, with Associate Justices Martin S. Villarama, Jr. (now a member of this Court) and Noel G. Tijam, concurring; rollo, pp. 8-15. [2] Id. at 17. [3] CA rollo, pp. 37-38.
[4] [5] [6]

Entitled An Act Revising the Charter of the National Power Corporation, effective September 10, 2001. R.A. No. 6395, Sec. 3(h). Records, pp. 9-10.

[7] [8] [9] [10] [11]

See RTC Order dated November 24, 1998, in relation to paragraph 5 of NAPOCORs complaint; id. at 2, 63. Id. at 1-7. Id. at 18-20. Id. at 56-59. Id. at 60-61. Id. at 67, 78. Rollo, pp. 53-56. Records, pp. 93-95. 225 Phil. 29, 34 (1986). Supra note 3, at 38. Supra note 1. CA rollo, pp. 86-90. Supra note 2. G.R. No. 158071, April 2, 2009, 583 SCRA 152. Id. at 159-160. Rollo, pp. 54-56. See National Power Corporation v. Dela Cruz, G.R. No. 156093, February 2, 2007, 514 SCRA 56. Rep. of the Phil. v. Santos, supra note 15, at 34. B.H. Berkenkotter & Co. v. Court of Appeals, G.R. No. 89980, December 14, 1992, 216 SCRA 584, 586-587. Republic v. Libunao, G.R. No. 166553, July 30, 2009, 594 SCRA 363, 376. Id. Id. at 378.

[12] [13] [14] [15] [16] [17] [18] [19] [20] [21] [22] [23] [24]

[25] [26] [27] [28]

THIRD DIVISION

PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 186459 Present: CARPIO MORALES, J., Chairperson, BERSAMIN, DEL CASTILLO,* VILLARAMA, JR., and SERENO, JJ.

- versus -

NITA EUGENIO Y PEJER, Appellant.

Promulgated: September 1, 2010

x-------------------------------------------------- x

DECISION

CARPIO MORALES, J.: Nita Eugenio y Pejer (appellant) was charged before the Regional Trial Court (RTC) of Pasig City for violation of Section 5, Article II of Republic Act No. 9165 (R.A. No. 9165) or the Comprehensive Dangerous Drugs Act of 2002, allegedly committed as follows:[2] On or about May 13, 2003 in Pasig City, and within the jurisdiction of this Honorable Court, the accused, not being lawfully authorized by law, did then and there willfully, unlawfully and feloniouslysell, deliver and give away to PO1 Aldrin Mariano, a police poseur-buyer, one (1) heat-sealed transparent plastic sachet containing three (3) centigrams (0.03 gram) of white crystalline substance, which was found positive to the test for methamphetamine hydrochloride, a dangerous drug, in violation of the said law. Contrary to law. (underscoring supplied)
[1]

From the evidence for the prosecution, the following version is culled:

On the night of May 13, 2003, at around 7:30 p.m., a confidential informant reported to PO1 Aldrin Mariano (PO1 Mariano), officer-on-duty at the Pasig City Hall Detachment, that one alias Aruba was selling shabu at Vicper Compound, Malinao, Pasig City. P/Sr. Insp. Chief Rodrigo Villaruel at once formed a buy-bust team to conduct an operation composed of, among others, PO3 Amilassan Salisa as team leader, and PO1 Mariano as poseurbuyer. PO1 Mariano, who was given two one hundred peso bills bearing Serial Numbers BT219634 and XN547078 to be used as buy-bust money, wrote his initials ARM thereon at the lower left portion. The operation was recorded in the police blotter and coordinated with the Philippine Drug Enforcement Agency (PDEA) which gave it control number NOC-1305-03-10.[3] At around 8:00 in the evening, the team, together with the confidential informant, proceeded to the residence of appellant who was standing in front of her house. The informant at once introduced PO1 Mariano as buyer. As appellant inquired how much, PO1 Mariano handed her the two marked bills upon which appellant drew out one substance-filled sachet from the outside wall of her house. At that instant, PO1 Mariano removed his cap, the pre-arranged signal for the team members to, as they did, close in. PO1 Mariano then held appellants arm, identified himself as a police officer, and apprised her of her constitutional rights as he retrieved from her the buy-bust money. He thereafter marked EXH-A arm/05/13/03 on the substance-filled sachet sold to him by appellant. The buy-bust team brought appellant to the Rizal Medical Center for physical check-up and later to the police detachment office where P/Sr. Insp. Chief Villaruel prepared the following memorandum of May 13, 2003[4] addressed to the Chief of the Eastern Police District Crime Laboratory Office, requesting the conduct of laboratory examination on the seized substance-filled sachet to determine the presence of dangerous drugs and their weight: 1. Respectfully forwarded to your good office herewith/attached (sic) submitted specimen for laboratory examination to wit: NATURE OF OFFENSE NAME OF SUSPECT VIOLATION OF RA 9165 NITA EUGENIO Y PEJER, 57 years old, widow, Res. At Vicper Compound,

Malinao, Pasig City D.T.P.O. On or about 8:30 PM 13 May 2003 at Vicper Compound, Malinao, Pasig City Elements of Mayors Special Action Team/ City Hall Detachment, Pasig City Police Station represented by PO1 Aldrin Mariano One (1) heat sealed transparent plastic sachet containing undetermined amount of suspected shabu Marked EXH A ARM 05/13/03

ARRESTING OFFICER

SPECIMEN SUBMITTED

2. Request acknowledge (sic) receipt.[5] (emphasis and underscoring supplied)

Acting on the above-quoted memorandum, P/Sr. Insp. Annalee R. Forro, Forensic Chemical Officer of the Eastern Police District Crime Laboratory Office, who received the sachet, conducted on the same night of May 13, 2003, at around 8:33 P.M, a laboratory examination of the contents of the sachet, the result of which she recorded in Chemistry Report No. D-889-03E[6] wherein she concluded that the substance inside the sachet weighed 0.03 gram and was positive for methamphetamine hydrochloride. Hence, the filing of the Information against appellant. Denying the charge against her, appellant gave the following version: On May 11, 2003, while fetching water from a nearby well, she was, in the presence of family and neighbors, accosted by police officers who brought her to the police station. At the station, she was questioned whether she knew one Baylene Ramba, to which she replied in the negative. She was later surprised to learn that an Information for violation of R.A. 9165 had been filed against her. Finding for the prosecution, the trial court, by Decision of May 31, 2005, convicted appellant, disposing as follows:

WHEREFORE, the Court finds accused NITA EUGENIO y Pejer @ Aruba GUILTY beyond reasonable doubt of the crime of violation of Sec. 5, Art. II of R.A. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002 and imposes upon her the penalty of LIFE IMPRISONMENT and to pay a fine of Php500,000.00 SO ORDERED.[7] (underscoring supplied)

By Decision of September 16, 2008,[8] the Court of Appeals affirmed the trial courts decision. In affirming the trial courts rejection of appellants defense, the appellate court held: . . . As correctly observed by the trial court, the claim that accused-appellant was arrested without reason is not supported by evidence. Not one of the alleged witnesses to the unlawful arrest, including accused-appellants own daughter, was presented to corroborate the claim. Hence, the court a quo is correct in considering the defense incredible for being self-serving and uncorroborated.[9] (underscoring supplied)

In her present appeal, appellant claims, in the main, that there was failure to follow the requirements of Sec. 21 of R.A. No. 9165, hence, it compromised the integrity and evidentiary value of the allegedly seized item. Sec. 21 of R.A. No 9165 provides: 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 or 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 ofthe accused or the persons/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; x x x (emphasis and underscoring supplied) Appellant specifically claims that no physical inventory and photographing of the specimen took place. Respecting the required conduct of an inventory, since only one sachet was seized, failure to comply therewith may understandably have been rendered unnecessary. As for the required photograph of the seized item, a reading of the testimony of PO1 Mariano confirms the prosecutions failure to follow such requirement: Atty. Ronatay: Q: Are you aware that it is required under the dangerous drugs law that in case of the buy-bust operation, the subject specimen their (sic) must be a picture taken on the subject specimen? A: What I said is that impossible, we have a buy-bust to verify.

Atty. Ronatay: Your Honor, I think the answer is not responsive to the question. We moved (sic) to strike that out and the witness to answer the question.

Court: Answer the question. Witness: A: Not yet maam. Atty. Ronatay: Q: How many times have you been engaged in buy-bust operation? A: More or less ten maam. Q: And in those ten cases, was there ever an occasion that the subject specimen, there was a picture taken on that subject specimen? None, maam. Are you also aware Mr. witness that under the dangerous drugs law, it is standard operating procedure that in cases of operation specifically in a buybust operation, there has also be (sic) a presence of the media? I do not know, maam. In this case was there a media present at the time of the operation? None maam.

A: Q:

A: Q: A:

Q:

Are you also aware that under the dangerous drugs law, it is required that there has to be coordination with the Local Brgy.? None maam.[10] (emphasis and underscoring supplied)

A:

Failing to comply with the provision of Section 2 of R.A. No. 9165 does not necessarily doom the case for the prosecution, however. People v. Pringas enlightens: Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team. Its non-compliance will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused.[11] (citation omitted, emphasis, italics and underscoring supplied)

The Courts pronouncement in Pringas is based on the provision of Section 21(a) of the Implementing Rules and Regulations[12] of R.A. No. 9165 reading: x x x Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and 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 and underscoring supplied)

Clearly, it was necessary for the prosecution to prove that the integrity and evidentiary value of the shabu was preserved. As reflected in the above-quoted Memorandum of P/Sr. Insp. Chief Villaruel, the time of operation was on or about 8:30 P.M., 13 May 2003. If the allegedly seized substance-filled sachet was confiscated at 8:30 p.m., it is highly improbable that it was received at the Crime Laboratory at 8:33 P.M or a mere three minutes after the seizure, given that appellant was after his arrest first brought to a hospital for physical check-up.

Doubt is thus engendered on whether the object evidence subjected to laboratory examination and presented in court is the same as that allegedly sold by appellant. In fine, the prosecution failed to prove the integrity and evidentiary value of the 0.03 gram specimen. Parenthetically, unlike in Pringas, the defense in the present case questioned early on, during the cross examination of PO1 Mariano, the failure of the apprehending officers to comply with the inventory and photographing requirements of Section 21 of R.A. No. 9165. And the defense raised it again during the offer of evidence by the prosecution, thus: Atty. Ronatay: xxxx Exh. C - we object to its admission as well as the purpose for which they are being offered for being planted evidence, your honor. [13] (underscoring supplied)

The prosecution having failed to discharge the burden of establishing the guilt of the accused beyond reasonable doubt, the burden of the evidence did not shift to the defense to thus leave it unnecessary to pass upon the defense evidence even if it were considered weak. Appellants acquittal based on reasonable doubt is then in order. WHEREFORE, the Petition is GRANTED. The assailed decision is REVERSED and SET ASIDE. Appellant, Nita Eugenio y Pejer, is ACQUITED for failure of the prosecution to prove her guilt beyond reasonable doubt. Let a copy of this Decision be furnished the Director of the Bureau of Corrections for Women, Mandaluyong City who is directed to cause the immediate release of appellant, unless she is being lawfully held for another cause, and to inform this Court of action taken within ten (10) days from notice. SO ORDERED. ___________________________________________________________________________________
* [1] [2] [3] [4] [5]

Per Special Order No. 879 dated August 13, 2010 in lieu of Associate Justice Arturo D. Brion. Records, pp. 1-2 Id. Id. at 8. Id. at 7. Ibid.

[6] [7] [8]

[9] [10] [11] [12] [13]

Id. at 10. CA rollo, p. 14 Penned by Associate Justice Ramon M. Bato, Jr. with the concurrence of Associate Justices Remedios A. Salazar-Fernando and Rosalinda Asuncion-Vicente. Rollo, p. 8. TSN, October 21, 2003, pp. 23-24. G.R. No. 175928. August 31, 2007, 531 SCRA 828, 842-843. Took effect on November 27, 2002. Exhibit C pertains to the specimen confiscated from appellant which is the plastic sachet containing white crystalline substance or shabu., TSN, March 10, 2004, p. 31.

THIRD DIVISION PEOPLE OF THE PHILIPPINES, Appellee, G.R. No. 185708 Present: CARPIO MORALES, J., Chairperson, BRION, BERSAMIN, VILLARAMA, JR., and SERENO, JJ. Promulgated:

- versus -

JUANITO CABIGQUEZ y ALASTRA, Appellant.

September 29, 2010 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION VILLARAMA, JR., J.: On appeal is the Decision[1] dated July 9, 2008 of the Court of Appeals (CA), Mindanao Station, which affirmed the Decision[2] dated October 29, 2003 of the Regional Trial Court (RTC) of Cagayan de Oro City, Branch 18 finding appellant Juanito Cabigquez y Alastra (Cabigquez) and Romulo Grondiano y Soco (Grondiano) guilty beyond reasonable doubt of robbery (Criminal Case No. 2001-816), and also convicting appellant Cabigquez of rape (Criminal Case No. 2001-815), both crimes committed against private complainant AAA,[3] a 43-year old widow and mother of ten (10) children. Grondiano decided to withdraw his appeal before the appellate court.[4] Hence, this review shall consider only Cabigquezs appeal. Below are the facts, as culled from the records of both the trial and appellate courts. In the evening of March 26, 2001, AAA and her three minor children BBB, CCC, and DDD[5] slept inside AAAs small sari-sari store which was annexed through the exterior balcony of her house at Purok 1-A, Tablon in Cagayan de Oro City. AAAs head was close to the door, while a cabinet stood at her right side. She left the 50-watt incandescent bulb on as they slept through the night.[6] At around 3:30 a.m., March 27, 2001, AAA was awakened when clothes fell on her face. When she looked up, she saw a man whose face was covered with a handkerchief and wearing a camouflage jacket and cycling shorts. He immediately poked a gun at her. AAA shouted Ayyy!, rousing her three children from sleep.[7] Despite the cover on the burglars face, BBB was able to

identify him as Romulo Grondiano, one of their neighbors, based on the hanging mole located below his left eye.[8] Armed with a stainless handgun,[9] Grondiano ordered AAA and her children to lie face down.[10] Though stricken with fear, BBB noticed that Grondiano had a companion who stayed at the balcony keeping watch.[11] Grondiano then ransacked the store, taking with him P3,000.00 cash from the cabinet and P7,000.00 worth of grocery items. Before he left, Grondiano pointed the gun at AAAs back and warned them not to make any noise.[12] As soon as Grondiano left the store, the other man entered. BBB identified the man as appellant Juanito Cabigquez as the latter did not conceal his face. Armed with Grondianos gun, Cabigquez stripped AAA of her short pants and underwear, placed a pillow on her lower abdomen and mounted her from behind. He lifted and twisted one of her legs and pinned the other. AAA shouted Ayaw! (No!), but offered no further resistance. Cabigquez inserted his penis into AAAs vagina, and proceeded to ravish her in full view of her children, and even as the latter cried for mercy. Before he left, Cabigquez threatened to kill AAA and her children if they would tell anyone about the incident.[13] Afraid for their lives, AAA and her children remained prostrate on the floor even after the two malefactors had left. Shortly thereafter, they decided to proceed to the house of AAAs older son, EEE, and asked for help. AAA failed to disclose to her son the identities of the two men. Meanwhile, BBB, fearing retaliation from the two men, decided not to divulge the identities of Cabigquez and Grondiano to her mother and brother.[14] That same morning, March 27, 2001, AAA reported the incident to the Puerto Police Station. No criminal complaint, however, was filed since AAA was still uncertain of the identities of the two men. AAA was physically examined by Dr. Cristilda O. Villapae and Dr. Riman Ricardo, resident physicians at the Northern Mindanao Medical Center.[15]Dr. Villapaes examination revealed that the smear recovered from AAAs vagina was positive for spermatozoa,[16] while Dr. Ricardo found a twocentimeter contusion on AAAs left hand dorsum.[17] On May 24, 2001, Cabigquez was arrested for possession of illegal drugs. [18] Grondiano was likewise arrested on May 26, 2001 also for possession of illegal drugs.[19] With the two men incarcerated, and now certain of their safety, BBB finally mustered the courage to reveal the identities of Cabigquez and Grondiano to her mother.[20] On July 18, 2001, two Informations were filed against Cabigquez and Grondiano, viz: Criminal Case No. 2001-816 (For: Robbery)

The undersigned Assistant City Prosecutor accuses JUANITO CABIGQUEZ y ALASTRA, alias DODOY, and ROMULO GRONDIANO y SOCO, alias Molok, of the crime they committed, as follows: That on March 27, 2001, at more or less 3:30 oclock in the early morning in a store located at Purok 1-A, Barangay Tablon, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping with one another, with intent to gain and violence or intimidation of persons, did then and there wil[l]fully, unlawfully and feloniously take, rob and carry away cash Php3,000.00 and assorted [grocery] stocks valued Php7,000.00 all in all amounting to Php10,000.00, owned by and belonging to one [AAA], in the following manner: that accused Romulo Grondiano intimidated the offended party with a gun pointed to her and her three children and ordered them to lay on the floor with face down and then took, robbed and carried away the aforementioned valuable personal things while Juanito Cabigquez y Alastra acting/serving as lookout at the door of the store, to the damage and prejudice of the offended party, in the total sum of Php10,000.00, Philippine Currency. Contrary to and in violation to Article 294, par. 5, of the Revised Penal Code, as amended.[21]

Criminal Case No. 2001-815 (For: Rape) The undersigned Assistant City Prosecutor accuses, JUANITO CABIGQUEZ Y ALASTRA ALIAS DODOY, of the crime of RAPE that he committed as follows: That on March 27, 2001, at more or less 3:30 oclock or thereabout, in the early morning, at Purok 1A, Tablon, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a gun, and with the use thereof, by means of force, and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledged (sic) of the offended party [AAA], against her will [and] in the presence and full view of her children. Contrary to and in violation to (sic) Article 266-A (Formerly under Art. 335) of the Revised Penal Code, as amended by R.A. 8353.[22]

Both accused pleaded not guilty to the charges.[23] During the trial, Cabigquez admitted that on the night of March 26, 2001, he slept in the house of Leonila Omilao, a neighbor of Cabigquez and AAA.[24] He admitted that he did not have any quarrel with AAA and found no possible reason why

AAA would file the complaints and testify against him.[25] Omilao herself testified that Cabigquez was in her house on the night of the incident and even saw the latter sleeping in the kitchen. During Omilaos cross-examination, however, the trial court noted Silvina Cabigquez, appellants daughter, coaching Omilao in her answers.[26] On October 21, 2002, the trial court, on motion by the defense, ordered the National Bureau of Investigation (NBI) in Manila to conduct a deoxyribonucleic acid (DNA) analysis on the sperm taken from AAAs vagina. On May 21, 2003, NBI Forensic Chemist III Aida Viloria Magsipoc testified that the sample collected from AAA did not match Cabigquezs DNA profile since the specimen submitted to them were mere vaginal discharges from AAA.[27] On October 29, 2003, the trial court rendered judgment convicting Cabigquez and Grondiano of the crimes charged. The dispositive portion of said decision reads: IN THE LIGHT OF ALL THE FOREGOING, the Court finds accused JUANITO CABIGQUEZ GUILTY beyond reasonable doubt of the crime of Rape under Article 266A of the Revised Penal Code, punishable under Article 266-B of the same Code, and there being one aggravating circumstance [the used (sic) of a deadly weapon (firearm)] without a[ny] mitigating circumstance, accused JUANITO CABIGQUEZ is hereby sentenced and is SO ORDERED to suffer the supreme penalty of Death by lethal injection, including its accessory penalties. He is further directed and is SO ORDERED to pay the victim the sum of FIFTY THOUSAND PESOS (P50,000.00) as indemnity, plus another TWENTY FIVE THOUSAND PESOS (P25,000.00), as moral damages. Pursuant to Section 22 of R.A. 7659 and Section 10 of Rule 122 of the Rules of Court, let the entire record of this case be forwarded to the Supreme Court for automatic review. FURTHERMORE, the Court likewise finds accused JUANITO CABIGQUEZ and ROMULO GRONDIANO GUILTY beyond reasonable doubt of the Crime of Robbery punishable under paragraph 5 of Article 294 of the Revised Penal Code, and [there] being no aggravating nor mitigating circumstance, and after applying the Indeterminate Sentence Law, accused JUANITO CABIGQUEZ and ROMULO GRONDIANO are hereby sentenced and are SO ORDERED to serve the [penalty of] imprisonment of TWO (2) YEARS, TEN (10) MONTHS AND TWENTY (20) DAYS OFPRISION CORRECCIONAL, as the MINIMUM, to SIX (6) YEARS, ONE (1) MONTH AND ELEVEN (11) DAYS OF PRISION MAYOR, as the MAXIMUM, including its accessory penalties, plus further SO ORDERED to pay the stolen items and cash in the sum of TEN THOUSAND PESOS (P10,000.00). SO ORDERED. Cagayan de Oro City, October 29, 2003.[28] The records of the case were elevated to this Court on automatic review. Pursuant to our ruling in People v. Mateo,[29] the case was referred to the CA.

In his appeal, appellant maintained his defense of alibi and denial. He questioned the accuracy and credibility of BBBs testimony given her failure to immediately divulge the identity of the perpetrators after the incident. Appellant also noted that AAAs lone interjection, while she was allegedly being raped by him, can hardly be considered as a manifest resistance.[30] The defense also argued that the prosecution failed to establish conspiracy since BBB did not actually see that Cabigquez was on the balcony while the robbery was being committed.[31] By Decision dated July 9, 2008, the CA upheld the RTC in convicting appellant of both crimes of robbery and rape. The CA found BBBs testimony candid and not prompted by ill-motive. As to BBBs failure to promptly implicate Grondiano and Cabigquez for the crimes, the appellate court ruled that this cannot be taken against her in the light of serious threats made by said accused on their family. The alleged contradictions in the testimonies of AAA and BBB were likewise not fatal to the case of the prosecution as they bear no materiality to the commission of the crime. The CA also noted that the accused were able to consummate their criminal acts without any physical resistance from the victims who could not even cry loudly because they were ordered at gunpoint not to make any noise. It rejected the defense of alibi put up by Cabigquez in view of his admission that he stayed at a house within the vicinity of AAAs store.[32] The CA thus decreed: WHEREFORE, premises considered, the appealed October 29, 2003 Decision of the Regional Trial Court (RTC) of Misamis Oriental, 10th Judicial Region, Branch 18, Cagayan de Oro City, convicting Juanito A. Cabigquez, the lone appellant before Us, for the crimes of Robbery and Rape, is hereby AFFIRMED with MODIFICATION in that Juanito A. Cabigquez is hereby sentenced to suffer the penalty of reclusion perpetua for the crime of Rape. SO ORDERED.[33]

Before this Court, appellant Cabigquez reiterates the following arguments: I. THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME CHARGED DESPITE THE FAILURE OF THE PROSECUTION TO PROVE THEIR GUILT BEYOND REASONABLE DOUBT. II. THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO THE INCREDIBLE AND INCONSISTENT TESTIMONY OF THE PROSECUTION WITNESSES.

III. ASSUMING ARGUENDO THAT THE ACCUSED-APPELLANTS COMMITTED ROBBERY, THE COURT A QUO GRAVELY ERRED IN ORDERING THEM TO PAY THE COMPLAINANT P10,000.00 AS ACTUAL DAMAGES. IV. THE COURT A QUO GRAVELY ERRED IN FINDING THAT THERE WAS CONSPIRACY IN THE CASE AT BAR.[34]

We sustain the ruling of the CA. The factual findings of the RTC, as affirmed by the appellate court, indubitably prove that appellant raped AAA even if the specimen obtained from the vaginal swabs and submitted to the NBI failed to match appellants DNA profile. Rape is committed by a man who shall have carnal knowledge of a woman through force, threat or intimidation.[35] The commission of rape was clearly shown by testimonial and documentary evidence; the defense submits that it is the identity of the perpetrator which is not duly established. For purposes of criminal investigation, DNA identification is indeed a fertile source of both inculpatory and exculpatory evidence.[36] In this case, however, the result of the DNA test is rendered inconclusive to exculpate or inculpate the appellant since the sample tested by the NBI merely contained vaginal discharges. In the laboratory test earlier conducted by Dr. Villapae on the vaginal swab obtained from AAAs genitalia, the presence of spermatozoa was confirmed. This notwithstanding, the totality of evidence satisfactorily established that it was indeed appellant who raped AAA. AAAs daughter, BBB, who witnessed the entire incident which happened inside their store on the night in question, positively identified appellant as the one who raped her mother against the latters will by threatening her and her children with a handgun he was then carrying. BBBs unflinching and consistent testimony, when taken together with Dr. Villapaes findings and AAAs own declarations in court, provides sufficient basis for the conviction of appellant for rape. Quoted herein are the relevant portions of BBBs testimony on direct examination as to her identification of appellant as her mothers rapist, viz:

Q A Q A Q A Q A Q A Q A

Now, [BBB], you said that you are 13 years old and you said a while ago you sworn that you will tell the truth, can you remember that? Yes, sir. Okay now, are you going to tell the truth and nothing but the truth before this Honorable Court? Yes, sir I will tell the truth. Do you know what will happen to you if you tell a lie in court? Yes, sir I will be imprisoned. Do you want to be imprisoned? No, sir. So, you will tell the truth nothing but the truth? Yes, sir. Do you know accused Romulo Grondiano? Yes, sir because he is our neighbor.

xxxx Q A Q A Q A Q A Q A Do you also know accused Juanito Cabigquez who is accused for rape and coaccused in robbery? Yes, sir he is also our neighbor. For how long have you known Juanito Cabigquez before March 27, 2001? Since I came that age of reason I already knew Juanito Cabigquez. Is Juanito Cabigquez also a resident of Purok 1-A at Tablon? Yes, sir. Do you also know the nickname of Juanito Cabigquez? Its Dodoy. If Juanito Cabigquez is inside this courtroom, can you point to him? Note: Witness pointed to a person who when asked of his name identified himself as Juanito Cabigquez. Okay, on March 27, 2001 at about 3:30 early in the morning, do you remember where were you? I was inside our store sleeping together with our mother.

Q A

Q A

Aside from you and your mother, who were other persons who were with you? Together with my two (2) siblings.

xxxx Q Now, while you were sleeping together with your mother and your two (2) younger siblings at that time, what happened?

xxxx A Q A Q A Q A The three (3) of us were awakened because of the shout of our mother. Who is that us? I together with my two (2) siblings. Your mother also woke up? Yes, sir. Now, after you were awakened by the shout of your mother, what did you observe, if there was any? I saw my mother knelt down and I came nearer and then I embraced her because I thought she was dreaming but I saw Romulo Grondiano with a gun.

xxxx Q Alright, what happened while you saw accused Romulo Grondiano already at the door of your store of your mother holding a gun and your mother was kneeling? He ordered us to lay face down. After Romulo Grondiano ordered you to lay face down, what did you, your mother and your two (2) siblings do? I let my mother lay face down. How about you? I also lay face down. How about your two (2) younger siblings? They also lay face down. Alright, while the four (4) of you were lying face down, what did you observe? I noticed that he had a companion who is at our balcony. How were you able to notice that he has a companion?

A Q A Q A Q A Q A Q

Because we had a chair made of bamboo and then if somebody or a person hit it, it will sound.

xxxx Q A Now, after Romulo Grondiano took all those things that you have enumerated a while ago, where did Romulo Grondiano go? He pointed a gun at my mothers back and then ordered us not to move.

xxxx Q A Alright, after Romulo Grondiano told you, your mother and your two (2) younger siblings not to move, where did Romulo Grondiano go? He went to the balcony and then Juanito Cabigquez replaced him (Romulo) in going up, he (Juanito) went inside our store.

xxxx Q Alright, you testified a while ago that after Romulo Grondiano went inside your store he passed by the balcony of your house, then co-accused Juanito Cabigquez came in, where did Juanito Cabigquez come in? He entered in our store. The same store where you, your mother and two (2) younger siblings were staying at that time? Yes, sir. How were you able to recognize that it was Juanito Cabigquez who came in? Because I saw him. When you saw Juanito Cabigquez, were you still lying face down or were you already sitting? I was already lying face down. How were you able to see him? Because I looked back at the door because I thought that Romulo Grondiano already left but then I saw Juanito Cabigquez came in and replaced Romulo Grondiano. This Juanito Cabigquez who came in after Romulo Grondiano went out, is he the same Juanito Cabigquez the co-accused for robbery and accused in rape case? Yes, sir.

A Q A Q A Q A Q A

Q A

If he is inside this courtroom, can you point him again? Note: Witness pointed again to a person who when asked of his name identified himself as Juanito Cabigquez. After Juanito Cabigquez came in inside the store, what did you observe? He removed the shortpants of my mother and then he got the pillow of my mother and placed it under her abdomen.

Q A

xxxx Q A Q A Q A Q A Now, what was the position of your mother when Juanito Cabigquez took off the shortpants of your mother? She was still lying face down. What was the position of your mother when Juanito Cabigquez put the pillow under her abdomen? She was still lying face down. By the way, when Juanito Cabigquez entered the store, was the light still on? Yes, sir. Now, you said that your mother shouted when Juanito Cabigquez came in. My question is, when did your mother actually shout? When Juanito Cabigquez was removing the shortpants of my mother.

COURT: (to the witness) Q A Can you tell the Court what kind of shout your mother did? My mother shouted ay!

PROS. M. NOLASCO: (contg.) Q A Q A Q A Q Now, was Juanito able to take off the shortpants of your mother? Yes, sir because it was a gartered shortpants. Now, how about the panty of your mother? It was removed together with the shortpants. Now, after the shortpants and panty of your mother were taken off and the pillow was placed under her abdomen, what next did you observe? Juanito Cabigquez mounted on my mother. And then, what did Juanito do when he mounted to your mother?

A Q A Q A Q

He did a push and pull motion. How about your two (2) younger siblings, were they still awake at that time? Yes, sir, they were crying. How about you? I also cried. When you noticed that he (Juanito Cabigquez) entered your store, was he carrying a gun?

xxxx A He was bringing a gun.

xxxx Q A Can you demonstrate the length of the gun that you saw? The gun which Juanito Cabigquez was bringing was the same gun Romulo brought. How about your mother while Juanito Cabigquez was already mounted on her and make a push and pull motion, what did your mother do? My mother was crying.

Q A

xxxx Q You said that you, your mother and your two (2) younger siblings were crying while Juanito Cabigquez mounted on your mother and made a push and pull motion, what happened after that? He pointed his gun at the back of my mother and then told us not to tell to anybody because they will return and kill us. Now, after Juanito Cabigquez warned you not to tell anybody otherwise they will return and kill you, what did Juanito Cabigquez do? He went up to the balcony.

Q A

xxxx Q A How about Juanito Cabigquez, when he entered your store of your mother and raped your mother, what was he wearing? He was wearing a white t-shirt and maong pants.

COURT: (to the witness)

Q A

Was it long or short? Long pants.

x x x x [37] (Emphasis supplied.)

Appellant asserts that it is significant that AAA herself did not recognize him and his coaccused despite her familiarity with them as they were her customers in her store. It was pointed out that the identification of the perpetrators was supplied solely by her daughter BBB, who should not have been given any credence in view of her inconsistent declarations such as when she testified that when she woke up, her mother was kneeling contrary to the latters testimony that when clothes fell on her face, she was awakened and that her mother shouted but a gun was pointed to her. Moreover, BBB saw the accused several times after the alleged crimes transpired and yet she did not manifest any alarm even when they reported the matter to the police; it was only after the accused were detained that their identities were revealed. In the light of serious discrepancies in the testimonies of prosecution witnesses, appellant maintains that BBBs identification of the perpetrators of robbery and rape was unreliable and doubtful.[38] We are not persuaded. While it is true that the most natural reaction for victims of crimes is to strive to remember the faces of their assailants and the manner in which the craven acts are committed,[39] in this case, AAA cannot be faulted for failing to recognize appellant as her rapist though the latter was their neighbor. It must be recalled, as narrated by AAA and BBB, they were all still lying face down when appellant suddenly entered the store right after his co-accused Grondiano exited through the balcony taking the loot with him. BBB recounted that her mother was still lying face down when appellant removed her mothers short pants and panty, placed a pillow below her abdomen and then proceeded to rape her. It was BBB who had the opportunity to look at this second person who entered their house because she looked back at the door thinking that Grondiano (the one who first entered the store) already left, but then appellant immediately came in after Grondiano. Although AAA was able to shout at that time, she could not move because she was afraid that her three children, who were already crying, will be harmed.[40] As to the alleged inconsistency in the position of her mother when accused Grondiano entered their store, the same is inexistent considering that AAA was relating the exact moment when she woke up and realized the presence of an intruder because clothes fell on her face, while BBB who was awakened by the shout of her mother, simply described her mother then already in a

kneeling position as she woke up first. BBB had thought her mother was just dreaming but then she saw Grondiano already inside the house with a gun. Neither would BBBs delay in revealing the identities of the perpetrators to the police taint her identification of appellant as the one who raped her mother and conspirator of Grondiano in robbing their store. Failure to immediately reveal the identity of a perpetrator of a felony does not affect, much less impair, the credibility of witnesses, more so if such delay is adequately explained.[41] BBB sufficiently explained her action in not immediately divulging to her mother and brother nor reporting to the police whom she saw inside their house that early morning of March 27, 2001. She was afraid that the assailants would make good their threat that they will return and kill their family if they reported the incident to anybody. But when a couple of months later appellant and his co-accused Grondiano were arrested on drug charges, BBB finally felt it was safe to come out in the open and inform the police of the identities of the two men who robbed their house, one of whom subsequently raped her mother (appellant). Appellant cannot seek acquittal on the basis of the negative result of the DNA test on the specimen conducted by the NBI. A positive DNA match is unnecessary when the totality of the evidence presented before the court points to no other possible conclusion, i.e., appellant raped the private offended party. A positive DNA match may strengthen the evidence for the prosecution, but an inconclusive DNA test result may not be sufficient to exculpate the accused, particularly when there is sufficient evidence proving his guilt. Notably, neither a positive DNA match of the semen nor the presence of spermatozoa is essential in finding that rape was committed. The important consideration in rape cases is not the emission of semen but the penetration of the female genitalia by the male organ.[42] Moreover, it is evident that the rape of AAA was committed in the presence and in full view of her three minor children. Thirteen (13)-year old BBB, as well as her two minor siblings who were present at the time when the rape was committed, was already old enough to sense the bestiality being committed against their own mother.[43] Such circumstance, as recited in the last portion of the Information for Criminal Case No. 2001-815 is, by itself, sufficient to qualify the rape under Article 266-B of the Revised Penal Code,[44] as amended. Consequently, the CA was correct in affirming the conviction of appellant for qualified rape. With respect to the charge of robbery, we find no merit in appellants argument that the prosecution failed to establish that he conspired with co-accused Grondiano in stealing goods from

private complainants store. He asserts that there was no proof that he was outside the store when the crime of robbery was being committed; private complainant and her daughter merely surmised that another person was outside the store because of a creaking sound created by a bamboo chair, but they actually did not see that person or if there was indeed that person.[45] On this issue, we hold that the CA correctly ruled that conspiracy was sufficiently proven by circumstantial evidence on record, thus: We also find that the trial court correctly appreciated conspiracy against Cabigquez with respect [to] the crime of robbery. There is conspiracy when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Direct proof of previous agreement to commit a crime is not necessary. Conspiracy may be shown through circumstantial evidence, deduced from the mode and manner in which the offense was perpetrated, or inferred upon the acts of the accused themselves when such lead to a joint purpose and design, concerted action, and community of interest. Neither [AAA] nor [BBB] saw Cabigquez acting as a lookout outside the store. However, the creaking sound coming from the balcony and the fact that [BBB] saw Cabigquez go inside the store, as soon as Grondiano left, reasonably verify a discernment that someone stood by outside and close to the stores entrance during the looting, and that such person was Cabigquez. The fact that only Grondiano concealed his face reasonably indicates a prior agreement between the two (2) malefactors for Cabigquez to act as a lookout in the commission of robbery. After raping [AAA], Cabigquez also warned of killing [AAA and her children] if they told anyone about the incident, which threat contributed to the common sentiment of concealing both crimes of robbery and rape. These circumstances sufficiently establish a joint purpose and design, and a community of interest, between Cabigquez and Grondiano, in committing the crime of robbery.[46] On the matter of actual damages awarded by the trial court, appellant questions the amount thereof, insisting there was no basis for the actual cost of the items taken from the store. We find no reversible error committed by the CA in sustaining such award. In People v. Martinez,[47] this Court ruled that the trial court has the power to take judicial notice of the value of stolen goods because these are matters of public knowledge or capable of unquestionable demonstration. Judicial cognizance, which is based on considerations of expediency and convenience, displace evidence since, being equivalent to proof, it fulfills the object which the evidence is intended to achieve. Surely, matters like the value of the appliances, canned goods and perfume are undeniably within public knowledge and easily capable of unquestionable demonstration.[48] Here, what is involved are common goods for everyday use and ordinary stocks

found in small sari-sari stores like private complainants store, i.e., milk, soap, coffee, sugar, liquor and cigarettes. The RTC was thus correct in granting the reasonable amount of P10,000.00 as computed by the private complainant representing the value of stolen merchandise from her store. Further, the Court deems it proper to adjust the sums awarded as civil indemnity, moral and exemplary damages. Applying prevailing jurisprudence, the private complainant is entitled to P75,000.00 as civil indemnity, P75,000.00 as moral damages and P25,000.00 as exemplary damages.[49] Lastly, the death penalty imposed on appellant was correctly modified to reclusion perpetua, in view of the passage of Republic Act No. 9346, entitled An Act Prohibiting the Imposition of Death Penalty in the Philippines.[50] Notwithstanding the reduction of the penalty imposed on appellant, he is not eligible for parole following Section 3 of the said law, which provides: SEC. 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

WHEREFORE, the appeal is DISMISSED and the Decision dated July 9, 2008 of the Court of Appeals, Mindanao Station in CA-G.R. CR-H.C. No. 00409 isAFFIRMED with MODIFICATIONS in that the penalty of reclusion perpetua imposed on appellant in Criminal Case No. 2001-815 for qualified rape is herein clarified as without eligibility for parole, and the appellant is ordered to pay the private complainant P75,000.00 as civil indemnity, P75,000.00 as moral damages and P25,000.00 as exemplary damages. With costs against the appellant. SO ORDERED.
[1]

[2] [3]

[4] [5] [6]

Rollo, pp. 5-19. Docketed as CA-G.R. CR-HC No. 00409, penned by Associate Justice Jane Aurora C. Lantion, with Associate Justices Edgardo A. Camello and Michael P. Elbinias concurring. CA rollo, pp. 34-51. Penned by Judge Edgardo T. Lloren. Pursuant to the Courts ruling in People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419, and Section 44 of Republic Act No. 926 2 otherwise known as the Anti-Violence Against Women and Their Children Act of 2004 the real names and personal circumstances of the victims as well as any other information tending to establish or compromise their identities or those of their immediate family or household members are withheld. Fictitious initials and appellations are used instead to represent them. CA rollo, pp. 201-204. Supra note 3. TSN, [AAA], January 8, 2002, pp. 6-8; TSN, January 9, 2002, pp. 3-4, 28-29.

[7] [8] [9] [10] [11] [12] [13]

[14] [15] [16] [17] [18] [19] [20] [21] [22] [23] [24] [25] [26] [27] [28] [29]

[30] [31] [32] [33] [34] [35]

[36] [37] [38] [39] [40] [41] [42] [43] [44]

Id. at 7-8; TSN, October 29, 2001, p. 21. TSN, October 29, 2001, p. 10. Id.; TSN, [AAA], January 8, 2002, p. 8. Id. at 11; id. Id.; id. at 10. Id. at 12-13; id. at 9-11. TSN, [AAA], January 8, 2002, pp. 11-13; TSN, January 9, 2002, pp. 3-4, 20; TSN, October 29, 2001, pp. 1518. TSN, January 9, 2002, pp. 4-6; TSN, October 29, 2001, p. 20; TSN, November 28, 2001, p. 32. Id. at 7-9; records, Vol. II, p. 12. TSN, November 27, 2001, p. 13; id. Id. at 25-26; id. CA rollo, pp. 102-103; see records, Vol. IV, p. 46. Id. at 103; records, Vol. I, p. 118. TSN, November 28, 2001, p. 32. CA rollo, p. 12. Id. at 13. Id. at 34-35; records, Vol. II, p. 27; records, Vol. I, p. 41. Id. at 44. Id. at 44-45. Id. at 44; TSN, July 8, 2002, p. 35. Rollo, p. 9. CA rollo, pp. 50-51. G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640. The case modified the pertinent provisions of the Revised Rules on Criminal Procedure, more particularly Section 3 and Section 10 of Rule 122, Section 13 of Rule 124, Section 3 of Rule 125 insofar as they provide for direct appeals from the Regional Trial Courts to the Supreme Court in cases where the penalty imposed is death, reclusion perpetua or life imprisonment and allowed intermediate review by the Court of Appeals before such cases are elevated to the Supreme Court. CA rollo, pp. 90-93. Id. at 95. Rollo, pp. 15-16. Id. at 18. See rollo, pp. 38-39; CA rollo, pp. 82-83. Paragraph 1 of Article 266-A of the Revised Penal Code specifically provides: ART. 266-A. Rape; When and How Committed. Rape is committed: 1. By a man who shall have carnal knowledge of a woman under any of the following circumstances: a) Through force, threat or intimidation; b) When the offended party is deprived of reason or otherwise unconscious; c) By means of fraudulent machination or grave abuse of authority; and d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. People v. Umanito, G.R. No. 172607, October 26, 2007, 537 SCRA 552, 560. TSN, October 29, 2001, pp. 5-21. CA rollo, pp. 90-91. People v. Garcia, G.R. Nos. 133489 & 143970, January 15, 2002, 373 SCRA 134, 151. TSN, [AAA], January 8, 2002, p. 11. People v. Casanghay, G.R. No. 143005, November 14, 2002, 391 SCRA 638, 647. People v. Hipona, G.R. No. 185709, February 18, 2010, p. 7. TSN, [BBB], November 19, 2001, pp. 14-18. The fifth paragraph of Article 266-B of the Revised Penal Code reads: ART. 266-B. Penalties. x x x xxxx The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances: xxxx

[45] [46] [47] [48] [49]

[50]

(3) When the rape is committed in full view of the spouse, parent, any of the children or other relatives within the third civil degree of consanguinity. CA rollo, p. 95. Id. at 245. G.R. No. 116918, June 19, 1997, 274 SCRA 259. Id. at 273. People v. Abulon, G.R. No. 174473, August 17, 2007, 530 SCRA 675, 705; People v. Bon, G.R. No. 166401, October 30, 2006, 506 SCRA 168, 217, citing People v. Quiachon, G.R. No. 170236, August 31, 2006, 500 SCRA 704, 719. Signed into law on June 24, 2006.

FIRST DIVISION JUDGE FELIMON ABELITA III, Petitioner, Present: PUNO, C.J., Chairperson, - versus CARPIO, CORONA, LEONARDO-DE CASTRO, and BERSAMIN, JJ. P/SUPT. GERMAN B. DORIA and SPO3 CESAR RAMIREZ, Respondents. x - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x DECISION CARPIO, J.: The Case Before the Court is a petition for review[1] assailing the 10 July 2004 Decision[2] and 18 October 2004 Order[3] of the Regional Trial Court of Quezon City, Branch 217 (trial court), in Civil Case No. Q98-33442 for Damages. The Antecedent Facts Judge Felimon Abelita III (petitioner) filed a complaint for Damages under Articles 32(4) and (9) of the Civil Code against P/Supt. German B. Doria (P/Supt. Doria) and SPO3 Cesar Ramirez (SPO3 Ramirez). Petitioner alleged in his complaint that on 24 March 1996, at around 12 noon, he and his wife were on their way to their house in Bagumbayan, Masbate, Masbate when P/Supt. Doria and SPO3 Ramirez (respondents), accompanied by 10 unidentified police officers, requested them to proceed to the Provincial PNP Headquarters at Camp Boni Serrano, Masbate, Masbate. Petitioner was suspicious of the request and told respondents that he would proceed to the PNP Headquarters after he had brought his wife home. Petitioner alleged that when he parked his car in front of their August 14, 2009 Promulgated: G.R. No. 170672

house, SPO3 Ramirez grabbed him, forcibly took the key to his Totoya Lite Ace van, barged into the vehicle, and conducted a search without a warrant. The search resulted to the seizure of a licensed shotgun. Petitioner presented the shotguns license to respondents. Thereafter, SPO3 Ramirez continued his search and then produced a .45 caliber pistol which he allegedly found inside the vehicle. Respondents arrested petitioner and detained him, without any appropriate charge, at the PNP special detention cell. P/Supt. Doria alleged that his office received a telephone call from a relative of Rosa Sia about a shooting incident in Barangay Nursery. He dispatched a team headed by SPO3 Ramirez to investigate the incident. SPO3 Ramirez later reported that a certain William Sia was wounded while petitioner, who was implicated in the incident, and his wife just left the place of the incident. P/Supt. Doria looked for petitioner and when he found him, he informed him of the incident report. P/Supt. Doria requested petitioner to go with him to the police headquarters as he was reported to be involved in the incident. Petitioner agreed but suddenly sped up his vehicle and proceeded to his residence. P/Supt. Doria and his companions chased petitioner. Upon reaching petitioners residence, they caught up with petitioner as he was about to run towards his house. The police officers saw a gun in the front seat of the vehicle beside the drivers seat as petitioner opened the door. They also saw a shotgun at the back of the drivers seat. The police officers confiscated the firearms and arrested petitioner. P/Supt. Doria alleged that his men also arrested other persons who were identified to be with petitioner during the shooting incident. Petitioner was charged with illegal possession of firearms and frustrated murder. An administrative case was also filed against petitioner before this Court.[4] The Decision of the Trial Court In its 10 July 2004 Decision, the trial court dismissed petitioners complaint. The trial court found that petitioner was at the scene of the shooting incident in Barangay Nursery. The trial court ruled that the police officers who conducted the search were of the belief, based on reasonable grounds, that petitioner was involved in the incident and that the firearm used in the commission of the offense was in his possession. The trial court ruled that petitioners warrantless arrest and the warrantless seizure of the firearms were valid and legal. The trial court gave more credence to the testimonies of respondents who were presumed to have performed their duties in accordance with law. The trial court rejected petitioners claim of frame-up as weak and insufficient to overthrow the positive testimonies of the police officers who conducted the arrest and the incidental search. The trial court concluded that petitioners claim for damages under Article 32 of the Civil Code is not warranted under the circumstances. Petitioner filed a motion for reconsideration. In its 18 October 2004 Order, the trial court denied the motion. Hence, the petition before this Court.

The Issues The issues in this case are the following: 1. Whether the warrantless arrest and warrantless search and seizure were illegal under Section 5, Rule 113 of the 1985 Rules on Criminal Procedure; Whether respondents are civilly liable for damages under Articles 32(4) and (9) of the Civil Code; and Whether the findings in the administrative case against petitioner are conclusive in this case. The Ruling of this Court The petition has no merit. Application of Section 5, Rule 113 of the 1985 Rules on Criminal Procedure Petitioner alleges that his arrest and the search were unlawful under Section 5, Rule 113 of the 1985 Rules on Criminal Procedure. Petitioner alleges that for the warrantless arrest to be lawful, the arresting officer must have personal knowledge of facts that the person to be arrested has committed, is actually committing, or is attempting to commit an offense. Petitioner alleges that the alleged shooting incident was just relayed to the arresting officers, and thus they have no personal knowledge of facts as required by the Rules. We do not agree. Section 5, Rule 113 of the 1985 Rules on Criminal Procedure states: Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

2.

3.

For the warrantless arrest under this Rule to be valid, two requisites must concur: (1) the offender has just committed an offense; and (2) the arresting peace officer or private person has personal knowledge of facts indicating that the person to be arrested has committed it.[5] Personal knowledge of facts must be based on probable cause, which means an actual belief or reasonable grounds of suspicion.[6] The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested.[7] A reasonable suspicion, therefore, must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.[8] Section 5, Rule 113 of the 1985 Rules on Criminal Procedure does not require the arresting officers to personally witness the commission of the offense with their own eyes. In this case, P/Supt. Doria received a report about the alleged shooting incident. SPO3 Ramirez investigated the report and learned from witnesses that petitioner was involved in the incident. They were able to track down petitioner, but when invited to the police headquarters to shed light on the incident, petitioner initially agreed then sped up his vehicle, prompting the police authorities to give chase. Petitioners act of trying to get away, coupled with the incident report which they investigated, is enough to raise a reasonable suspicion on the part of the police authorities as to the existence of probable cause. Plain View Doctrine The seizure of the firearms was justified under the plain view doctrine. Under the plain view doctrine, objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be presented as evidence.[9] The plain view doctrine applies when the following requisites concur: (1) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (2) the discovery of the evidence in plain view is inadvertent; and (3) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure.[10] In this case, the police authorities were in the area because that was where they caught up with petitioner after the chase. They saw the firearms inside the vehicle when petitioner opened the door. Since a shooting incident just took place and it was reported that petitioner was involved in

the incident, it was apparent to the police officers that the firearms may be evidence of a crime. Hence, they were justified in seizing the firearms. Civil Liability Under Article 32 of the Civil Code Petitioner alleges that respondents are civilly liable under paragraphs (4) and (9) of Article 32 of the Civil Code. Paragraphs (4) and (9) of Article 32 of the Civil Code respectively state: Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: xxxx (4) Freedom from arbitrary or illegal detention; xxxx (9) The right to be secure in ones person, house, papers, and effects against unreasonable searches and seizures; xxxx In this case, it was established that petitioner was lawfully arrested without a warrant and that firearms were validly seized from his possession. The trial court found that petitioner was charged with illegal possession of firearms and frustrated murder. We agree with the trial court in rejecting petitioners allegation that he was merely framed-up. We also agree with the trial court that respondents were presumed to be performing their duties in accordance with law. Hence, respondents should not be held civilly liable for their actions. Res Judicata Does Not Apply Respondents raise the defense of res judicata against petitioners claim for damages. Res judicata has two aspects: bar by prior judgment and conclusiveness of judgment provided under Section 47(b) and (c), Rule 39, respectively, of the 1997 Rules of Civil Procedure [11] which provide: Sec. 47. Effect of judgments or final orders. The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows:

xxx (b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; and (c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. Bar by prior judgment and conclusiveness of judgment differ as follows: There is bar by prior judgment when, as between the first case where the judgment was rendered and the second case that is sought to be barred, there is identity of parties, subject matter, and causes of action. In this instance, the judgment in the first case constitutes an absolute bar to the second action. Otherwise put, the judgment or decree of the court of competent jurisdiction on the merits concludes the litigation between the parties, as well as their privies, and constitutes a bar to a new action or suit involving the same cause of action before the same or other tribunal. But where there is identity of parties in the first and second cases, but no identity of causes of action, the first judgment is conclusive only as to those matters actually and directly controverted and determined and not as to matters merely involved therein. This is the concept of res judicata known as conclusiveness of judgment. Stated differently, any right, fact or matter in issue directly adjudicated or necessarily involved in the determination of an action before a competent court in which judgment is rendered on the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and their privies whether or not the claim, demand, purpose, or subject matter of the two actions is the same.[12] For res judicata to apply, the following requisites must be present: (a) the former judgment or order must be final; (b) it must be a judgment or order on the merits, that is, it was rendered after a consideration of the evidence or stipulations submitted by the parties at the trial of the case;

(c) it must have been rendered by a court having jurisdiction over the subject matter and the parties; and (d) there must be, between the first and second actions, identity of parties, of subject matter, and of cause of action; this requisite is satisfied if the two actions are substantially between the same parties.[13] While the present case and the administrative case are based on the same essential facts and circumstances, the doctrine of res judicata will not apply. An administrative case deals with the administrative liability which may be incurred by the respondent for the commission of the acts complained of.[14] The case before us deals with the civil liability for damages of the police authorities. There is no identity of causes of action in the cases. While identity of causes of action is not required in the application of res judicata in the concept of conclusiveness of judgment,[15] it is required that there must always be identity of parties in the first and second cases. There is no identity of parties between the present case and the administrative case. The administrative case was filed by Benjamin Sia Lao (Sia Lao) against petitioner. Sia Lao is not a party to this case. Respondents in the present case were not parties to the administrative case between Sia Lao and petitioner. In the present case, petitioner is the complainant against respondents. Hence, while res judicata is not a defense to petitioners complaint for damages, respondents nevertheless cannot be held liable for damages as discussed above. WHEREFORE, we DENY the petition. We AFFIRM the 10 July 2004 Decision and 18 October 2004 Order of the Regional Trial Court of Quezon City, Branch 217, in Civil Case No. Q-98-33442. SO ORDERED.
[1] [2]

Under Rule 45 of the 1997 Rules of Civil Procedure. Rollo, pp. 30-40. Penned by Judge Lydia Querubin Layosa. [3] Id. at 41. [4] Sia Lao v. Abelita III, A.M. No. RTJ-96-1359, 356 Phil. 575 (1998). The Court found petitioner guilty of conduct unbecoming a member of the judiciary and dismissed him from the service with forfeiture of all benefits and with prejudice to reemployment in any other branch, instrumentality or agency of the government, including government-owned and controlled corporations. [5] People v. Cubcubin, Jr., 413 Phil. 249 (2001). [6] Id. [7] Umil v. Ramos, G.R. No. 81567, 3 October 1991, 202 SCRA 251; People v. Lozada, 454 Phil. 241 (2003). [8] Id. [9] Abenes v. Court of Appeals, G.R. No. 156320, 14 February 2007, 515 SCRA 690. [10] Id. [11] Agustin v. Sps. Delos Santos, G.R. No. 168139, 20 January 2009. [12] Id. [13] Estate of the Late Encarnacion Vda. de Panlilio v. Dizon, G.R. No. 148777, 18 October 2007, 536 SCRA 565. [14] See Velasquez v. Hernandez, 480 Phil. 844 (2004). [15] See Layos v. Fil-Estate Gold and Development, Inc., G.R. No. 150470, 6 August 2008, 561 SCRA 75, citing Oropeza Marketing Corp. v. Allied Banking Corp., 441 Phil. 551 (2002).

Republic of the Philippines Supreme Court Baguio City

THIRD DIVISION

QUINTIN B. SALUDAGA and SPO2 FIEL E. GENIO , Petitioners,

G.R. NO. 184537 Present: CORONA, J., Chairperson, VELASCO, JR., NACHURA, PERALTA, and MENDOZA, JJ.

- versus -

THE HONORABLE SANDIGANBAYAN, 4THDIVISION and THE PEOPLE OF THE PHILIPPINES, Respondents.

Promulgated: April 23, 2010

x ----------------------------------------------------------------------------------------x DECISION MENDOZA, J.:

This is a petition for certiorari, prohibition and mandamus under Rule 65 of the 1997 Rules on Civil Procedure with a prayer for the issuance of a writ of preliminary injunction and temporary restraining order assailing the July 14, 2008 Resolution[1] of the Sandiganbayan in Criminal Case No. SB-08 CRM 0263, denying the Motion for Preliminary Investigation filed by the petitioners who were charged with a violation of Section 3(e) of Republic Act No. 3019, and the denial of their Motion for Reconsideration done in open court on August 13, 2008. An Information[2] dated September 13, 2000 charging both petitioners with having violated Section 3(e) of Republic Act No. 3019, by causing undue injury to the government, reads: The undersigned Graft Investigation Officer of the Office of the OmbudsmanVisayas, accuses QUINTIN B. SALUDAGA and SPO2 FIEL E. GENIO, for VIOLATION OF

SECTION 3(e) OF REPUBLIC ACT NO. 3019, AS AMENDED (THE ANTI-GRAFT AND CORRUPT PRACTICES ACT), committed as follows: That in or about the months of November and December, 1997, at the Municipality of Lavezares, Province of Northern Samar, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, public officials, being the Municipal Mayor and PNP Member of Lavezares, Northern Samar in such capacity and committing the offense in relation to office, conniving, confederating and mutually helping with one another, and with the late Limpio Legua, a private individual, with deliberate intent, with evident bad faith and manifest partiality, did then and there willfully, unlawfully and feloniously enter into a Pakyaw Contract for the Construction of Barangay Day Care Centers for Barangays Macarthur and Urdaneta, Lavezares, Northern Samar, each in the amount of FORTY-EIGHT THOUSAND FIVE HUNDRED PESOS (P48,500.00), Philippine Currency, or a total amount of NINETYSEVEN THOUSAND PESOS (P97,000.00), Philippine Currency, without conducting a competitive public bidding, thus depriving the government the chance to obtain the best, if not, the most reasonable price, and thereby awarding said contracts to Olimpio Legua, a non-license contractor and non-accredited NGO, in violation of Sec. 356 of Republic Act No. 7160 (The Local Government Code) and COA Circular No. 91-368, to the damage and prejudice of the government. CONTRARY TO LAW.

This case was initially raffled to the Third Division of Sandiganbayan and was docketed as Criminal Case No. 26319.

In a Resolution[3] promulgated on June 14, 2002, the Third Division granted petitioners Motion to Quash and dismissed the information for failure of the prosecution to allege and prove the amount of actual damages caused the government, an essential element of the crime charged. In a Memorandum[4] dated July 1, 2003, the Ombudsman directed the Office of the Special Prosecutor (OSP) to study the possibility of having the information amended and re-filed with the Sandiganbayan. Thus, the OSP re-filed the Information[5] dated August 17, 2007, this time, docketed as Criminal Case No. SB-08 CRM 0263, with the Fourth Division of the Sandiganbayan, charging the petitioners

for violation of Section 3(e) of R.A. No. 3019, by giving unwarranted benefit to a private person, to the prejudice of the government. The information, subject of the petition, now reads: The undersigned Prosecutor of the Office of the Special Prosecutor/Office of the Ombudsman, hereby accuses, MAYOR QUINTIN B. SALUDAGA and SPO2 FIEL E. GENIO, for the violation of Section 3(e) of Republic Act 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That in or about the months of November and December, 1997 at the Municipality of Lavezares, Province of Northern Samar, Philippines, and within the jurisdiction of this Honorable Court, accused QUINTIN B. SALUDAGA, a high ranking public official being then the Mayor of Lavezares, Northern Samar, and committing the crime herein charged while in the discharge of his official administrative function, conspiring and conniving with accused SPO2 FIEL B. GENIO, a member of Lavezares Police Force (PNP) and with the late OLIMPIO LEGUA, a private individual, with deliberate intent, did then and there willfully, unlawfully and criminally give unwarranted benefit or advantage to the late Olimpio Legua, a non-license contractor and non-accredited NGO, through evident bad faith and manifest partiality by then and there entering into a Pakyaw Contract with the latter for the Construction of Barangay Day Care Centers for barangays Mac-Arthur and Urdaneta, Lavezares, Northern Samar, in the amount of FORTY EIGHT THOUSAND FIVE HUNDRED PESOS (P48,500.00) each or a total of NINETY SEVEN THOUSAND PESOS (P97,000.00) Philippine Currency, without the benefit of a competitive public bidding to the prejudice of the Government and public interest. CONTRARY TO LAW. Petitioners filed a Motion for Preliminary Investigation[6] dated June 4, 2008 which was strongly opposed by the prosecution in its Opposition[7] dated June 18, 2008. Petitioners contend that the failure of the prosecution to conduct a new preliminary investigation before the filing of the second Information constituted a violation of the law because the latter charged a different offensethat is, violation of Section 3(e) by giving unwarranted benefit to private parties. Hence, there was a substitution of the first Information. They argue that assuming that no substitution took place, at the very least, there was a substantial amendment in the new information and that its submission should have been preceded by a new preliminary

investigation. Further, they claim that newly discovered evidence mandates re-examination of the finding of a prima facie cause to file the case. On July 14, 2008, the Sandiganbayan Fourth Division issued the assailed Resolution denying the petitioners motion for preliminary investigation. The graft court found that there is no substituted information or substantial amendment that would warrant the conduct of a new preliminary investigation. It gave the following ratiocination: The re-filed information did not change the nature of the offense charged, but merely modified the mode by which accused committed the offense. The substance of such modification is not such as to necessitate the conduct of another preliminary investigation. Moreover, no new allegations were made, nor was the criminal liability of the accused upgraded in the re-filed information. Thus, new preliminary investigation is not in order.

The dispositive portion of the Resolution states:

Finding the arguments of accused-movants indefensible, the sufficiency of the information must be sustained. WHEREFORE, having established the sufficiency of the Information, the motion under consideration is hereby DENIED for lack of merit. Accordingly, the arraignment of both accused shall proceed as scheduled.[8]

Petitioners filed a Motion for Reconsideration[9] dated August 6, 2008, submitting that the two Informations substantially charged different offenses, such that the present information constituted a substitution that should have been preceded by a new preliminary investigation. On August 13, 2008, in a hearing for the arraignment of petitioners, the Sandiganbayan denied the Motion[10] in open court. Hence, petitioners interpose the present petition for certiorari, prohibition and mandamus with prayer for the issuance of a writ of preliminary injunction and temporary restraining order under Rule 65 of the Rules of Court anchored on the following grounds: I

THE HONORABLE SANDIGANBAYAN ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT REFUSED TO ORDER THE PRELIMINARY INVESTIGATION OF THE CASE A QUO, WHEN THE SECOND INFORMATION IN THE INSTANT CASE CONSTITUTED SUBSTITUTED INFORMATION WHOSE SUBMISSION REQUIRED THE CONDUCT OF PRELIMINARY INVESTIGATION. II THE HONORABLE SANDIGANBAYAN ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT REFUSED TO ORDER THE CONDUCT OF A PRELIMINARY INVESTIGATION OF THE CASE A QUO, SINCE THE SECOND INFORMATION THEREIN CONTAINED SUBSTANTIAL AMENDMENTS WHOSE SUBMISSION REQUIRED THE CONDUCT OF PRELIMINARY INVESTIGATION. III THE HONORABLE SANDIGANBAYAN ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT REFUSED TO ORDER THE PRELIMINARY INVESTIGATION OF THE CASE A QUO, ALTHOUGH THE NEWLY DISCOVERED EVIDENCE MANDATES DUE RE-EXAMINATION OF THE FINDING THATPRIMA FACIE CAUSE EXISTED TO FILE THE CASE A QUO.[11] From the arguments raised by petitioners, the core issue is whether or not the two (2) ways of violating section 3(e) of Republic Act 3019, namely: (a) by causing undue injury to any party, including the Government; or (b) by giving any private party any unwarranted benefit, advantage or preference constitute two distinct and separate offenses that would warrant a new or another preliminary investigation. In its Comment[12] dated January 12, 2009, respondent People of the Philippines, represented by the Office of the Special Prosecutor, counters that there is no substituted information in contemplation of law and jurisprudence that would require the conduct of another preliminary investigation. There is no newly-discovered evidence that would lead to a different determination should there be another preliminary investigation conducted. In their Reply,[13] dated April 24, 2009, petitioners insist that the offenses charged in the first and second Information are not the same, and what transpired was a substitution of Information that required prior conduct of preliminary investigation. Even assuming there was no substitution, substantial amendments were made in the second Information, and that its submission should have been preceded by a new preliminary investigation. We find no merit in this petition.

Petitioners were charged with a violation of Section 3(e) of R.A. No. 3019 or the Anti-Graft and Corrupt Practices Act which reads: Section 3. Corrupt practices of public officers.- In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be 0unlawful: xxx (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees charged with the grant of licenses or permits or other concessions.

The essential elements of the offense are as follows:

1.

The accused must be a public officer discharging administrative, judicial or official functions; He must have acted with manifest partiality, evident bad faith or inexcusable negligence; and That his action caused any undue injury to any party, including the government, or giving any private party unwarranted benefits, advantage or preference in the discharge of his functions.[14]

2.

3.

In a string of decisions, the Court has consistently ruled: R.A. 3019, Section 3, paragraph (e), as amended, provides as one of its elements that the public officer should have acted by causing any undue injury to any party, including the Government, or by giving any private party unwarranted benefits, advantage or preference in the discharge of his functions. The use of the disjunctive term or connotes that either act qualifies as a violation of Section 3 paragraph (e), or as aptly held in Santiago, as two (2) different modes of committing the offense. This does not however indicate that each mode constitutes a distinct offense, but rather, that an accused may be charged under either mode or under both.[15]

The afore-stated ruling is consistent with the well-entrenched principle of statutory construction that The word or is a disjunctive term signifying disassociation and independence of one thing from the other things enumerated; it should, as a rule, be construed in the sense in which it ordinarily implies, as a disjunctive word.[16] Contrary to the argument of petitioners, there is no substituted information. The Information dated August 17, 2007 filed in Criminal Case No. SB-08 CRM 0263 charged the same offense, that is, violation of Section 3(e) of Republic Act No. 3019. Only the mode of commission was modified. While jurisprudence, the most recent being Talaga, Jr. v. Sandiganbayan,[17] provides that there are two (2) acts or modes of committing the offense, thus: a) by causing any undue injury to any party, including the government; or b) by giving any private party any unwarranted benefit, advantage or preference, it does not mean that each act or mode constitutes a distinct offense. An accused may be charged under either mode[18] or under both should both modes concur.[19] Petitioners reliance on the Teehankee v. Madayag,[20] ruling that, in substitution of information another preliminary investigation is entailed and that the accused has to plead anew to the new information is not applicable to the present case because, as already stated, there is no substitution of information there being no change in the nature of the offense charged. Consequently, petitioners cannot invoke the principle enunciated in Villaflor v. Vivar,[21] that failure to conduct a new preliminary investigation is tantamount to a violation of their rights. While it is true that preliminary investigation is a statutory and substantive right accorded to the accused before trial, the denial of petitioners claim for a new investigation, however, did not deprive them of their right to due process. An examination of the records of the case discloses that there was a fullblown preliminary investigation wherein both petitioners actively participated. Anent the contention of petitioners that the information contained substantial amendments warranting a new preliminary investigation, the same must likewise fail. Petitioners erroneously concluded that giving undue injury, as alleged in the first Information, and conferring unwarranted benefits, alleged in the second Information, are two distinct violations of, or two distinct ways of violating Section 3(e) of Republic Act No. 3019, and that such shift from giving undue injury to conferring unwarranted benefit constituted, at the very least, a substantial amendment. It should be noted that the Information is founded on the same transaction as the first Information, that of entering into a Pakyaw Contract for the construction of barangay day care

centers for barangays Mac-Arthur and Urdaneta, Lavezares, Northern Samar. Thus, the evidentiary requirements for the prosecution and defense remain the same. To bolster their claim for a reinvestigation of the offense, petitioners cited the case of Matalam v. Sandiganbayan.[22] The same is inapplicable to petitioners case. InMatalam, there was indeed a substantial amendment which entitled the accused to another preliminary investigation. The recital of facts constituting the offense charged therein was definitely altered. In the original information, the prohibited act allegedly committed by the petitioner was the illegal and unjustifiable refusal to pay the monetary claims of the private complainants, whereas in the amended information, it is the illegal dismissal from the service of the private complainants. In the case at bar, there is no substantial amendment to speak of. As discussed previously, the Information in Criminal Case No. 26319 was already dismissed by the Third Division of the Sandiganbayan in view of the petitioners Motion to Quash. As such, there is nothing more to be amended. The Court is not unaware of the case of People v. Lacson,[23] where it was written: The case may be revived by the State within the time-bar either by the refiling of the Information or by the filing of a new Information for the same offense or an offense necessarily included therein. There would be no need of a new preliminary investigation. However, in a case wherein after the provisional dismissal of a criminal case, the original witnesses of the prosecution or some of them may have recanted their testimonies or may have died or may no longer be available and new witnesses for the State have emerged, a new preliminary investigation must be conducted before an Information is refiled or a new Information is filed. A new preliminary investigation is also required if aside from the original accused, other persons are charged under a new criminal complaint for the same offense or necessarily included therein; or if under a new criminal complaint, the original charge has been upgraded; or if under a new criminal complaint, the criminal liability of the accused is upgraded from that as an accessory to that as a principal. The accused must be accorded the right to submit counter-affidavits and evidence.

No such circumstance is obtaining in this case, because there was no modification in the nature of the charged offense. Consequently, a new preliminary investigation is unnecessary and cannot be demanded by the petitioners. Finally, the third assigned error, that newly discovered evidence mandates due reexamination of the finding of prima facie cause to file the case, deserves scant consideration. For petitioners, it is necessary that a new investigation be conducted to consider newly discovered

evidence, in particular, the Affidavit of COA Auditor Carlos G. Pornelos, author of the audit report. We are not convinced. Under Section 2, Rule 121 of the Rules of Court, the requisites for newly discovered evidence are: (a) the evidence was discovered after trial (in this case, after investigation); (b) such evidence could not have been discovered and produced at the trial with reasonable diligence; and (c) that it is material, not merely cumulative, corroborative or impeaching, and is of such weight that, if admitted, will probably change the judgment.[24] The Pornelos affidavit, which petitioners claim as newly-discovered, was executed by affiant way back in November 29, 2000, as correctly found by the Sandiganbayan. Clearly, it cannot be considered as newly found evidence because it was already in existence prior to the re-filing of the case. In fact, such sworn affidavit was among the documents considered during the preliminary investigation. It was the sole annexed document to petitioners Supplement to Motion for Reinvestigation,[25] offered to dispute the charge that no public bidding was conducted prior to the execution of the subject project. More important is the prosecutions statement in its Memorandum that, after a careful reevaluation of the documentary evidence available to the prosecution at the time of the filing of the initial Information, and at the time of the re-filing of the Information, the prosecution insists on the finding of probable cause, an exercise within the exclusive province of the Office of the Ombudsman.[26] Worthy of note is the case of Soriano v. Marcelo,[27] viz:

Case law has it that the determination of probable cause against those in public office during a preliminary investigation is a function that belongs to the Office of the Ombudsman. The Ombudsman has the discretion to determine whether a criminal case, given its attendant facts and circumstances, should be filed or not. It is basically his call.

Without good and compelling reasons, the Court cannot interfere in the exercise by the Office of the Ombudsman of its investigatory and prosecutory powers.[28] The only ground upon which it may entertain a review of the Office of the Ombudsmans action is grave abuse of discretion.[29]

Grave abuse of discretion is an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act in contemplation of law as when the judgment rendered is not based on law and evidence but on caprice, whim and despotism.[30] The special civil action for certiorari under Rule 65 of the Rules of Court is intended to correct errors of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction. The writ of certiorari is directed against a tribunal, board or officer exercising judicial or quasi-judicial function that acted without or in excess of its or his jurisdiction or with grave abuse of discretion. Grave abuse of discretion means such capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction. To justify the issuance of the writ of certiorari, the abuse of discretion must be grave, as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined, or to act at all, in contemplation of law, as to be equivalent to having acted without jurisdiction.[31] The case at bench discloses no evident indication that respondent Sandiganbayan acted with arbitrariness, whim or caprice. It committed no error in refusing to order the conduct of another preliminary investigation. As sufficiently explained by the prosecution, a new preliminary investigation is not necessary as there was neither a modification of the nature of the offense charged nor a new allegation. Such conduct of preliminary investigation anew will only delay the resolution of the case and would be an exercise in futility in as much as there was a complete preliminary investigation actively participated by both petitioners. In view of the foregoing, we hold that the public respondent committed no grave abuse of discretion in issuing its Resolution of July 14, 2008, denying petitioners motion for preliminary investigation in Criminal Case No. SB-08 CRM 0263. WHEREFORE, the petition is DENIED. SO ORDERED.

[1]

Penned by Associate Justice Gregory S. Ong, with Associate Justices Jose R. Hernandez and Samuel R. Martires (sitting as Special Member per Administrative Order No. 154-2007 dated December 21, 2007) concurring. [2] Annex B, Petition; Rollo, pp. 33-34 [3] Annex C, id. at 35-37. [4] Annex 5 of the Comment; id. at 112. [5] Annex D, Petition; id. at 38-39. [6] Annex E, id. 41-52.

[7] [8]

Annex 8 of the Comment, id. at 139-144. Annex F, Petition, id. at 55-56. [9] Annex G, id. at 58-64. [10] Annex A, id. at 24-31. [11] Rollo, p. 8. [12] Id. at 84. [13] Id. at 226-231. [14] Albert v. Sandiganbayan, G.R. No. 164015, February 26, 2009; Collantes v. Marcelo, G.R. Nos. 167006-07, August 14, 2007, 530 SCRA 142; Cabrera v. Sandiganbayan, G.R. No. 162314, October 25, 2004, 441 SCRA377 citing Jacinto v. Sandiganbayan, G.R. No. 84571, October 2, 1989, 178 SCRA 254. [15] Santiago v. Garchitorena, G.R. No. 109266, December 2, 1993, 228 SCRA 214; Bautista v. Sandiganbayan, G.R. No. 136082, May 12, 2000, 332 SCRA 126; Evangelista v. People, G.R. Nos. 108135-36, August 14, 2000, 337 SCRA 671; Cabrera v. Sandiganbayan, G.R. Nos. 162314-17, October 25, 2004, 441 SCRA 377. [16] AGPALO, STATUTORY CONSTRUCTION, 2003, p. 204; see also The Heirs of George Poe v. Malayan InsuranceCompany, Inc., G.R. No. 156302, April 7, 2009 [17] G.R. No. 169888, November 11, 2008, 570 SCRA 622. [18] Constantino v. Sandiganbayan, G.R. No. 140656, September 13, 2007, 533 SCRA 205 citing Pilapil v. Sandiganbayan, G.R. No. 101978, April 7, 1993, 221 SCRA349. [19] Constantino v. Sandiganbayan, G.R. No. 140656, September 13, 2007, 533 SCRA 205 citing Pareo v. Sandiganbayan, G.R. Nos. 107110-20, April 17, 1996, 256 SCRA 242. [20] G.R. No. 103102, March 6, 1992, 207 SCRA 134. [21] G.R. No. 134744, January 16, 2001, 349 SCRA 194. [22] G.R. No. 165751, April 12, 2005, 455 SCRA 736. [23] G.R. No. 149453, April 1, 2003, 400 SCRA 267. [24] Amarillo et al. v. Sandiganbayan, G.R. Nos. 145007-08, January 28, 2003, 396 SCRA 434 citing Amper v. Sandiganbayan, G.R. No. 120391, September 24,1997, 279 SCRA 434. [25] Annex 15 of Comment, Rollo pp. 181-183. [26] Respondents Memorandum dated September 22, 2009, id. at 325. [27] G.R. No. 160772, July 13, 2009 citing Presidential Commission on Good Government v. Desierto, G.R. No. 139296, November 23, 2007, 538 SCRA 207. [28] Peralta v. Desierto, G.R. No. 153152, October 19, 2005, 473 SCRA 322 citing Knecht v. Desierto, G.R. No. 121916, June 26, 1998, 291 SCRA 292; Tirol, Jr. v. COA, G.R. No. 133954, August 3, 2000, 337 SCRA 198. [29] Peralta v. Desierto, G.R. No. 153152, October 19, 2005, 473 SCRA 322 citing PCGG v. Desierto, G.R. No. 132120, February 10, 2003, 397 SCRA 171. [30] Ferrer v. Office of the Ombudsman, et al., G.R. No. 129036, August 6, 2008, 561 SCRA 51 citing Galvante v. Casimiro etal., G.R. No. 162808, April 22, 2008, 552 SCRA 304. [31] Julies Franchise Corp. et al. v. Ruiz et al., G.R. No. 180988, August 28, 2009.