A.M. No.

00-5-03-SC

October 3, 2000
REVISED RULES OF CRIMINAL PROCEDURE
(RULES 110-127, REVISED RULES OF COURT).
RESOLUTION

Acting on the letter of the Committee on Revision of the Rules of Criminal Procedure for the
consideration and approval of the Court, the Court resolved to APPROVE the same with
modifications.
The Revised rules shall take effect on December 1, 2000 following its publication in the Official
Gazatte and two newspapers of general circulation not later than October 31, 2000.
October 3, 2000, Manila
G.R. No. 197582

June 29, 2015

JULIE S. SUMBILLA, Petitioner,

vs.
MATRIX FINANCE CORPORATION, Respondent.
DECISION
VILLARAMA, JR., J.:
In this petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, petitioner Julie S. Sumbilla seeks the liberal application of procedural rules to correct the
penalty imposed in the Decision dated January 14, 2009 of the Metropolitan Trial Court (MeTC) of
Makati City, Branch 67, in Criminal Case Nos. 321169 to 321174 which had already attained finality
in view of petitioner's failure to timely file an appeal.
1

The antecedent facts are not disputed.

Petitioner obtained a cash loan . from respondent Matrix Finance Corporation. As partial payment for
her loan, petitioner issued Philippine Business Bank Check Nos. 0032863 to 0032868. The six
checks have a uniform face value of P6,667.00 each.
Upon maturity, the six checks were presented by respondent to the drawee bank for payment.
However, all the checks were dishonored on the ground that they were drawn against a closed
account.
Petitioner's refusal to heed the demand letter of respondent for the payment of the face value of the
dishonored checks culminated in her indictment for six counts of violation of Batas Pambansa Blg.
22 (BP 22). The cases were docketed as Criminal Case Nos. 321169 to 321174, and were raffled off
to Branch 67, MeTC of Makati.

In a Decision dated January 14, 2009, the MeTC found petitioner criminally and civilly liable for the
issuance of the six rubber checks. For each count of violation of BP 22 involving a check with a face
value of P6,667.00, the MeTC meted petitioner a penalty of fine amounting to P80,000.00, with
subsidiary imprisonment. Her civil liability for the six consolidated cases was computed in the total
amount of P40,002.00. The fallo of the decision provides:
WHEREFORE, the Court renders judgment finding accused Julie S. Sumbilla GUILTY beyond
reasonable doubt of six counts of violation of Batas Pambansa Big. 22. For each count, she is
sentenced to pay n. fine of P80,000.00, with subsidiary imprisonment in case of non-payment. She is
likewise ORDERED to indemnify private complainant Matrix Finance Corporation the total amount
of P40,002.00 plus 12% annual legal interest from September 21, 2002 until full payment.
No costs.
SO ORDERED. (Emphasis and underscoring added.)
2

Instead of filing a Notice of Appeal, petitioner opted to file a Motion for Reconsideration before the
MeTC. The Motion was denied in the Order dated April 17, 2009 being a pleading barred under the
Revised Rules on Summary Procedure. The MeTC further noted that the prohibited motion for
reconsideration filed by the petitioner will not suspend the running of the period to perfect an appeal.
3

Subsequently, the Notice of Appeal filed by petitioner was also denied for having been filed beyond
the 15-day reglementary period.
With the denial of her Motion for Reconsideration of the Order denying her appeal, petitioner filed a
petition for certiorari under Rule 65 of the Rules which was docketed as SCA No. 09-1125 and
raffled off to Branch 61, Regional Trial Court (RTC) of Makati City.
5

Ruling that the MeTC did not act with grave abuse of discretion in denying the Notice of Appeal filed
by petitioner, the RTC dismissed the petition for certiorari. The Motion for Reconsideration filed by
petitioner met the same fate of dismissal.
7

Petitioner elevated the case to the Court of Appeals (CA) via a petition for review under Rule 42 of
the Rules of Court. The CA, however, ruled that an ordinary appeal under Section 2(a), Rule 41 of
the Rules of Court is the correct remedy under the circumstances because the RTC rendered the
decision in the petition for certiorari under Rule 65 of the Rules of Court in the exercise of its original
jurisdiction.
10

11

On July 27, 2011, after she received a copy of the June 28, 2011 Resolution of the CA denying her
Motion for Reconsideration, petitioner filed a motion for extension of time to file the instant petition.
12

13

14

On August 11, 2011, petitioner filed her Petition for Review on Certiorari within the period of
extension granted in our Resolution dated September 7, 2011. She ascribed to the CA a sole error:
15

16

THE HONORABLE COURT OF APPEALS ERRED IN DENYING THE PETITION FOR

CERTIORARI ON TECHNICALITY AND NOT EXERCISING ITS POSITIVE DUTY OF GIVING DUE
IMPORTANCE ON THE SUBSTANTIVE AND CONSTITUTIONAL RIGHTS OF THE PETITIONER

DESPITE A CLEAR PRESENCE OF SUCH VIOLATION OF LAW AS DEFINED BY PETITIONER IN

HER PETITION WHICH COULD HAVE MERIT A FULL DECISION BY A HIGHER COURT.
17

Petitioner acknowledged the procedural lapse of filing a petition for certiorari under Rule 65 of the
Rules of Court instead of an ordinary appeal before the CA. She also fully grasped the effects of her
erroneous filing of the Motion for Reconsideration to challenge the MeTC Decision finding her guilty
of six counts of violation of BP 22. Knowing that her conviction had already attained finality, petitioner
seeks the relaxation of the rules of procedure so that the alleged erroneous penalty imposed by the
MeTC can be modified to make it in accord with existing law and jurisprudence.
18

19

Respondent countered that the right to appeal being a mere statutory privilege can only be exercised
in accordance with the rules, and the lost appeal cannot be resurrected through the present remedial
recourse of a petition for review on certiorari.
The main issue to be resolved is whether the penalty imposed in the MeTC Decision dated January
14, 2009, which is already final and executory, may still be modified.
The petition is meritorious.
Petitioner does not dispute the finality of the Decision dated January 14, 2009 in Criminal Case Nos.
321169 to 321174 rendered by the MeTC, finding her guilty beyond reasonable doubt of six counts of
violation of BP 22. For every count of violation of BP 22 involving a check with a face value
of P6,667.00, petitioner was meted a penalty of fine of PS0,000.00, with subsidiary imprisonment in
case of non-payment. She assails the penalty for being out of the range of the penalty prescribed in
Section 1 of BP 22, and the subsidiary imprisonment to be violative of Administrative Circular Nos.
12-2000 and 13-2001, and the holdings in Vaca v. Court of Appeals. Petitioner asserted that the
maximum penalty of fine that can be imposed against her in each count of violation of BP 22 is
double the amount of the face value of the dishonored check only or P13,334.00. The fine of
PS0,000.00 for each count is thus excessive. She further implied that the imposition of subsidiary
imprisonment contravened Section 20 of Article III of the Constitution which proscribes imprisonment
as a punishment for not paying a debt.
20

Section 1 of BP 22 provides:
SECTION 1. Checks without sufficient funds. - Any person who makes or draws and issues any
check to apply on account or for value, knowing at the time of issue that he does not have sufficient
funds in or credit with the drawee bank for the payment of such check in full upon its presentment,
which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or
would have been dishonored for the same reason had not the drawer, without any valid reason,
ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but
not more than one (1) year or by a fine of not less than but not more than double the amount of the
check which fine shall in no case exceed Two hundred thousand pesos, or both such fine and
imprisonment at the discretion of the court.
x x x x (Emphasis supplied)
The court may thus impose any of the following alternative penalties against an accused found
criminally liable for violating BP 22: (1) imprisonment of not less than 30 days, but not more than one
year; or (2) a fine of not less or more than double the amount of the check, and shall in no case

exceed P200,000.00; or (3) both such fine and imprisonment. The discretion to impose a single
(imprisonment or fine) or conjunctive (fine and imprisonment) penalty pertains to the court.
If fine alone is the penalty imposed, the maximum shall be double the amount of the face value of
the rubber check which in no case should exceed P200,000.00.
Here, the face value of each of the six checks that bounced is P6,667.00. Under Section 1 of BP 22,
the maximum penalty of fine that can be imposed on petitioner is only 1!13,334.00, or the amount
double the face value of each check. Indubitably, the MeTC meted the petitioner a penalty of fine
way beyond the maximum limits prescribed under Section 1 of BP 22. The fine of P80,000.00 is
more than 11 times the amount of the face value of each check that was dishonored.
Instead of using as basis the face value of each check (P6,667.00), the MeTC incorrectly computed
the amount of fine using the total face value of the six checks (P40,002.00). The same error
occurred in Abarquez v. Court of Appeals, where we modified the penalty of fine imposed in one of
the consolidated cases therein (Criminal Case No. D-8137) to only double the amount of the face
value of the subject check.
21

Unfortunately, in the present case, the MeTC Decision is already final and executory after petitioner
failed to timely file a Notice of Appeal. Under the doctrine of finality and immutability of judgments, a
decision that has acquired finality becomes immutable and unalterable and may no longer be
modified in any respect, even if the modification is meant to correct erroneous conclusions of fact or
law, and whether it will be made by the court that rendered it or by the highest court of the
land. Upon finality of the judgment, the Court loses its jurisdiction to amend, modify or alter the
same.
22

23

Nonetheless, the immutability of final judgments is not a hard and fast rule. The Court has the power
and prerogative to suspend its own rules and to exempt a case from their operation if and when
justice requires it. After all, procedural rules were conceived to aid the attainment of justice. If a
stringent application of the rules would hinder rather than serve the demands of substantial justice,
the former must yield to the latter, as specifically mandated under Section 2, Rule 1 of the Rules of
Court:
24

25

SEC. 2. Construction. - These rules shall be liberally construed in order to promote their object and
to assist the parties in obtaining just, speedy, and inexpensive determination of every action and
proceeding.
Consequently final and executory judgments were reversed when the interest of substantial justice is
at stake and where special and compelling reasons called for such actions. In Barnes v. Judge
Padilla, we declared as follows:
26

27

x x x a final and executory judgment can no longer be attacked by any of the parties or be modified,
directly or indirectly, even by the highest court of the land.
However, this Court has relaxed this rule in order to serve substantial justice considering (a) matters
of life, liberty, honor or property, (b) the existence of special or compelling circumstances, (c) the
merits of the case, (d) a cause not entirely attributable to the fault or negligence of the party favored
by the suspension of the rules, (e) a lack of any showing that the review sought is merely frivolous
and dilatory, and (f) the other party will not be unjustly prejudiced thereby.

Invariably, rules of procedure should be viewed as mere tools designed to facilitate the attainment of
justice. Their strict and rigid application, which would result in technicalities that tend to frustrate
rather than promote substantial justice, must always be eschewed. Even the Rules of Court reflects
this principle. The power to suspend or even disregard rules can be so pervasive and compelling as
to alter even that which this Court itself had already declared to be final.
The judgment of conviction was already final in Rigor v. The Superintendent, New Bilibid
Prison when the Court corrected the minimum and maximum periods of the indeterminate sentence
imposed on the accused which exceeded the period of the imposable penalty. The correction was
made in the interest of justice and only for the penalty imposed against petitioner to be in
accordance with law and nothing else.
28

29

Both People v. Gatward, and People v. Barro cited the duty and inherent power of the Court to
correct the erroneous penalties meted on the accused in a final and executory judgments, and make
it conform to the penalty prescribed by law.
30

31

The interest of justice and the duty and inherent power of the Court were the reasons anchored upon
in Estrada v. People in ruling that it is befitting to modify the penalty imposed on petitioner even
though the notice of appeal was belatedly filed.
32

In Almuete v. People, the penalty imposed upon the petitioner which is outside the range of the
penalty prescribed by law was duly corrected even if it was already final on the ground of substantial
justice, thus:
33

In this case, it cannot be gainsaid that what is involved is the life and liberty of petitioner. If his
penalty of imprisonment remains uncorrected, it would be not conformable with law and he would be
made to suffer the penalty of imprisonment of 18 years, 2 months and 21 days of reclusion temporal
as minimum, to 40 years of reclusion perpetua, as maximum, which is outside the range of the
penalty prescribed by law. Contrast this to the proper imposable penalty the minimum of which
should only be within the range of 2 years, 4 months and 1 day to 6 years of prision correccional,
while the maximum should only be anywhere between 11 years, 8 months and 1 day of prision
mayor to 13 years of reclusion temporal. Substantial justice demands that we suspend our Rules in
this case. "It is always within the power of the court to suspend its own [R]ules or except a particular
case from its operation, whenever the purposes of justice require. x x x Indeed, when there is a
strong showing that a grave miscarriage of justice would result from the strict application of the
Rules, this Court will not hesitate to relax the same in the interest of substantial justice." Suspending
the Rules is justified "where there exist strong compelling reasons, such as serving the ends of
justice and preventing a miscarriage thereof." After all, the Court's "primordial and most important
duty is to render justice x x x." All the accused in Almuete v. People, People v. Barro, Estrada v.
People, and Rigor v. The Superintendent, New Bilibid Prison, failed to perfect their appeal on their
respective judgments of conviction, but the Court corrected the penalties imposed, notwithstanding
the finality of the decisions because they were outside the range of penalty prescribed by law. There
is, thus, no reason to deprive the petitioner in the present case of the relief afforded the accused in
the cited cases. Verily, a sentence which imposes upon the defendant in a criminal prosecution a
penalty in excess of the maximum which the court is authorized by law to impose for the offense for
which the defendant was convicted, is void for want or excess of jurisdiction as to the excess.
1awp++i1

34

37

35

36

38

39

Here, the penalty imposed is obviously out of range of that prescribed in Section 1 of BP 22.
Moreover, since the term of the subsidiary imprisonment is based on the total amount of the fine or

one day for each amount equivalent to the highest minimum wage rate prevailing in the Philippines
at the time of the rendition of judgment of conviction by the trial court, if petitioner is insolvent, she
will suffer a longer prison sentence. Substantial justice dictates that the penalty of fine meted on the
petitioner be accordingly corrected within the maximum limits prescribed under Section 1 of BP 22.
Hence, the penalty of fine of P80,000.00 meted on petitioner in Criminal Case Nos. 321169 to
321174 for each count of violation of BP 22 is corrected to double the face value of each rubber
check involved or P13,334.00 only.
40

Anent the alleged violation of Vaca v. Court of Appeals, and Administrative Circular No. 122000 that supposedly limited to fine the imposable penalty for violation of BP 22, and without any
subsidiary imprisonment, suffice it to quote the clarifications in Administrative Circular No. 13-2001,
issued on February 14, 2001:
41

42

x x x queries have been made regarding the authority of Judges to

1. Impose the penalty of imprisonment for violations of Batas Pambansa Big. 22; and
2. Impose subsidiary imprisonment in the event that the accused, who is found guilty of
violating the provisions of B. P Big. 2 2, is unable to pay the fine which he is sentenced to
pay considering that Administrative Circular No. 12-2000 adopted the rulings in Eduardo
Vaca v. Court of Appeals (G.R. No. 131714, 16 November 1998, 298 SCRA 656) and Rosa
Lim v. People of the Philippines (G.R. No. 130038, 18 September 2000) as a policy of the
Supreme Court on the matter of the imposition of penalties for violations of B. P Big. 22,
without mentioning whether subsidiary imprisonment could be resorted to in case of the
accused's inability to pay the fine.
The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove imprisonment
as an alternative penalty, but to lay down a rule of preference in the application of the penalties
provided for in B.P. Big. 22.
The pursuit of this purpose clearly does not foreclose the possibility of imprisonment for violators of
B.P. Big. 22. Neither does it defeat the legislative intent behind the law.
Thus, Administrative Circular No. 12-2000 establishes a rule of preference in the application of the
penal provisions of B.P. Big. 22 such that where the circumstances of both the offense and the
offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the
imposition of a fine alone should be considered as the more appropriate penalty. Needless to say,
the determination of whether the circumstances warrant the imposition of a fine alone rests solely
upon the Judge. Should the Judge decide that imprisonment is the more appropriate penalty,
Administrative Circular No. 12-2000 ought not be deemed a hindrance.
It is, therefore, understood that
1 . Administrative Circular 12-2000 does not remove imprisonment as an alternative penalty for
violations of B.P Big. 22;
xxxx

3. Should only a fine be imposed and tile accused be unable to pay the fine, there is no legal
obstacle to the application of the Revised Penal Code provisions on subsidiary imprisonment.
x x x x (Italics in the original; emphasis added)
43

In like manner, the issue of whether BP 22 violates Section 20 of Article III of the Constitution which
proscribes imprisonment as a punishment for not paying a debt was already settled in the negative
in Lozano v. Martinez. Pertinent portions of the Decision in the Lozano case read:
44

Has BP 22 transgressed the constitutional inhibition against imprisonment for debt? x x x

The gravamen of the offense punished by BP 22 is the act of making and issuing a worthless check
or a check that is dishonored upon its presentation for payment. It is not the non-payment of an
obligation which the law punishes. The law is not intended or designed to coerce a debtor to pay his
debt. The thrust of the law is to prohibit, under pain of penal sanctions, the making of worthless
checks and putting them in circulation. Because of its deleterious effects on the public interest, the
practice is proscribed by the law. The law punishes the act not as an offense against property, but an
offense against public order.
1wphi1

xxxx
In sum, we find the enactment of BP 22 a valid exercise of the police power and is not repugnant to
the constitutional inhibition against imprisonment for debt. (Emphasis added) WHEREFORE, the
petition is GRANTED. In the interest of justice, the Decision dated January 14, 2009 of Branch 67,
Metropolitan Trial Court of Makati City in Criminal Case Nos. 321169 to 321174 is MODIFIED.
45

Accused Julie S. Sumbilla is hereby found GUILTY beyond reasonable doubt of six counts of
violation of Batas Pambansa Big. 22, and is sentenced to pay a FINE of THIRTEEN THOUSAND
AND THREE HUNDRED THIRTY-FOUR PESOS (P13,334.00) for each count, and to indemnify
private complainant Matrix Finance Corporation the total amount of P40,002.00 plus 6% interest per
annum from September 21, 2002 until full payment.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 110898

February 20, 1996

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. JUDGE ANTONIO C. EVANGELISTA, as Presiding Judge of Branch XXI, 10th Judicial
Region, RTC of Misamis Oriental, Cagayan de Oro City, and GRILDO S.
TUGONON, respondents.
DECISION
MENDOZA, J.:

Private respondent Grildo S. Tugonan was charged with frustrated homicide in the Regional Trial
Court of Misamis Oriental (Branch 21), the information against him alleging
That on or about the 26th day of May, 1988, at more or less 9:00 o'clock in the evening at
Barangay Publican+.3, Municipality of Villanueva, Province of Misamis Oriental, Republic of
the Philippines and within the jurisdiction of this Honorable Court, the above-named accused
with intent to kill and with the use of a knife, which he was then conveniently provided of, did
then and there willfully, unlawfully and feloniously assault, attack and stab Roque T. Bade
thereby inflicting upon him the following injuries, to wit:
Stab wound, right iliac area,
0.5 cm. penetrating non
perforating lacerating posterior
peritoneum, 0,5 cm.
thus performing all the acts of execution which would produce the crime of Homicide as a
consequence but which, nevertheless, did not produce it by reason of causes independent of
the will of the accused, that is by timely medical attendance which prevented his death.
CONTRARY TO and in violation of Article 249 in relation to Article 6 of the Revised Penal
Code.
After trial he was found guilty and sentenced to one year of prision correccional in its minimum
period and ordered to pay to the offended party P5,000.00 for medical expense, without subsidiary
imprisonment, and the costs. The RTC appreciated in his favor the privileged mitigating
circumstances of incomplete self-defense and the mitigating circumstance of voluntary surrender.
On appeal the Court of Appeals affirmed private respondent's conviction but modified his sentence
by imposing on him an indeterminate penalty of 2 months of arresto mayor, as minimum, to 2 years
and 4 months of prision correccional, as maximum.1
On December 21, 1992, respondent Judge Antonio C. Evangelista of the RTC set the case for
repromulgation on January 4, 1993.
On December 28, 1992, private respondent filed a petition for probation, 2 alleging that (1) he
possessed all the qualifications and none of the disqualifications for probation under P.D. No. 968,
as amended; (2) the Court of Appeals has in fact reduced the penalty imposed on him by the trial
court; (3) in its resolution, the Court of Appeals took no action on a petition for probation which he
had earlier filed with it so that the petition could be filed with the trial court; (4) in the trial court's
decision, two mitigating circumstances of incomplete self-defense and voluntarily surrender were
appreciated in his favor; and (5) in Santos To v. Pao,3 the Supreme Court upheld the right of the
accused to probation notwithstanding the fact that he had appealed from his conviction by the trial
court.
On February 2, 1993, the RTC ordered private respondent to report for interview to the Provincial
Probation Officer. The Provincial Probation Officer on the other hand was required to submit his
report with recommendation to the court within 60 days. 4

On February 18, 1993, Chief Probation and Parole Officer Isias B. Valdehueza recommended denial
of private respondent's application for probation on the ground that by appealing the sentence of the
trial court, when he could have then applied for probation, private respondent waived the right to
make his application. The Probation Officer thought the present case to be distinguishable
from Santos To v. Pao in the sense that in this case the original sentence imposed on private
respondent by the trial court (1 year of imprisonment) was probationable and there was no reason
for private respondent not to have filed his application for probation then, whereas inSantos To
v. Pao the penalty only became probationable after it had been reduced as a result of the appeal.
On April 16, 1993 Valdehueza reiterated5 his "respectful recommendation that private respondent's
application for probation be denied and that a warrant of arrest be issued for him to serve his
sentence in jail."
The RTC set aside the Probation Officer's recommendation and granted private respondent's
application for probation in its order of April 23, 1993,6 Hence this petition by the prosecution.
The issue in this case is whether the RTC committed a grave abuse of its discretion by granting
private respondent's application for probation despite the fact that he had appealed from the
judgment of his conviction of the trial court.
The Court holds that it did.
Until its amendment by P.D. No. 1990 in 1986, it was possible under P.D. No. 986, otherwise known
as the Probation Law, for the accused to take his chances on appeal by allowing probation to be
granted even after an accused had appealed his sentence and failed to obtain an acquittal, just so
long as he had not yet started to serve the sentence. 7 Accordingly, in Santos To v. Pao, it was held
that the fact that the accused had appealed did not bar him from applying for probation especially
because it was as a result of the appeal that his sentence was reduced and made the probationable
limit.
The law was, however, amended by P.D. No. 1990 which took effect on January 15, 1986 8 precisely
to put a stop to the practice of appealing from judgments of conviction even if the sentence is
probationable for the purpose of securing an acquittal and applying for probation only if the accused
fails in his bid. Thus, as amended by P.D. No, 1990, 4 of the Probation Law now reads:
4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it
shall have convicted and sentenced a defendant, and upon application by said
defendant within the period for perfecting an appeal, suspend the execution of the sentence
and place the defendant on probation for such period and upon such terms and conditions
as it may deem best; Provided, That no application for probation shall be entertained or
granted if the defendant has perfected the appeal from the judgment of conviction.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine
only. An application for probation shall be filed with the trial court. The filing of the application
shall be deemed a waiver of the right to appeal.
An order granting or denying probation shall not be appealable. (Emphasis added).

Since private respondent filed his application for probation on December 28, 1992, after P.D. No.
1990 had taken effect,9 it is covered by the prohibition that "no application for probation shall be
entertained or granted if the defendant has perfected the appeal from the judgment of conviction"
and that "the filing of the application shall be deemed a waiver of the right to appeal," Having
appealed from the judgment of the trial court and having applied for probation only after the Court of
Appeals had affirmed his conviction, private respondent was clearly precluded from the benefits of
probation.
Private respondent argues, however, that a distinction should be drawn between meritorious appeals
(like his appeal notwithstanding the appellate court's affirmance of his conviction) and unmeritorious
appeals. But the law does not make any distinction and so neither should the Court. In fact if an
appeal is truly meritorious the accused would be set free and not only given probation. Private
respondent's original sentence (1 year of prision correccional in its minimum period) and the
modified sentence imposed by the Court of Appeals (2 months ofarresto mayor, as minimum, to 2
years and 4 months of prision correccional, as maximum) are probationable. Thus the fact that he
appealed meant that private respondent was taking his chances which the law precisely frowns
upon. This is precisely the evil that the amendment in P.D. No. 1990 sought to correct, since in the
words of the preamble to the amendatory law, "probation was not intended as an escape hatch and
should not be used to obstruct and delay the administration of justice, but should be availed of at the
first opportunity by offenders who are willing to be reformed and rehabilitated."
The ruling of the RTC that "[h]aving not perfected an appeal against the Court of Appeals decision,
[private respondent] is, therefore, not covered by [the amendment in] P.D. 1990" is an obvious
misreading of the law. The perfection of the appeal referred in the law refers to the .appeal taken
from a judgment of conviction by the trial court and not that of the appellate court, since under the
law an application for probation is filed with the trial court which can only grant the same "after it
shall have convicted and sentenced [the] defendant, and upon application by said defendant within
the period for perfecting an appeal. "Accordingly, in Llamado v. Court of Appeals, 10 it was held that
the petitioner who had appealed his sentence could not subsequently apply for probation.
WHEREFORE, the petition is GRANTED and the order of April 23, 1993 of the Regional Trial Court
of Misamis Oriental (Branch 21) granting probation to private respondent Grildo S. Tugonon is SET
ASIDE.
SO ORDERED.
G.R. No. 188191

March 12, 2014

ENRIQUE ALMERO y ALCANTARA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, MIRASOL BARTOLOME, CLARITA P. MATIAS, ROSENDO P.
MATIAS, and ANTONIO P. MATIAS, Respondents.
RESOLUTION
SERENO, CJ:

We resolve the petition filed under Rule 45 of the 1997 Rules of Civil Procedure by Enrique Almero y
Alcantara from the Decision of the Court of Appeals (CA) dated 26 September 2008 and Resolution
dated 29 May 2009 in CA-G.R. SP. No. 103030.
1

THE MTC RULING IN CRIMINAL CASE No. 96-6531

Petitioner is the accused in Criminal Case No. 96-6531 for reckless imprudence resulting in
homicide and multiple physical injuries. After private respondents reserved the right to institute a
separate action for damages, trial ensued. On 8 January 2007, the Municipal Trial Court (MTC) of
Labo, Camarines Norte found petitioner guilty and sentenced him to suffer prision correccional in its
medium and maximum periods.
Petitioner filed an Application for Probation on 7 September 2007, reasoning that he was informed of
his conviction only upon being served the warrant for his arrest. Prosecutor Analie Velarde opposed
his application on the ground that he was known to be uncooperative, habitually absent, and had
even neglected to inform the court of his change of address. On 22 February 2007, the MTC denied
his application, prompting petitioner to file a special civil action with the Regional Trial Court (RTC).
While his first Petition raised the sole issue of the denial of his application for probation, he filed a
Supplemental Petition, which a) assailed the validity of the promulgation of the 8 January 2007
judgment; and b) impleaded private complainants Mirasol Bartolome, Clarita P. Matias, Rosendo P.
Matias and Antonio P. Matias.
2

THE RTC RULING IN SPECIAL CIVIL ACTION NO. 07-0012

In his supplemental Petition, petitioner stated that upon close scrutiny, he discovered that the
judgment itself was premature and flawed, because the MTC never ruled upon his Formal Offer of
Exhibits. The RTC found that the MTC committed grave abuse of discretion in rendering judgment
without first ruling on his Formal Offer of Exhibits since, technically, petitioner had not yet rested his
case. It also ruled that the promulgation of judgment was similarly tainted with grave abuse of
discretion, because petitioner was not present at the time, in violation of Section 6, Rule 120 of the
Rules of Court. Without addressing the issue of probation, the dispositive portion states:
4

WHEREFORE, premises considered, the instant petition for Certiorari is hereby GRANTED. The
judgment promulgated on 22 February, 2007 is hereby SET ASIDE AND NULLIFIED and the case is
remanded to the Municipal Trial Court of Labo, Camarines Norte for further proceedings.
The Director of the Bureau of Corrections, Muntinlupa City or any person acting in his behalf to
release immediately petitioner ENRIQUE ALMERO Y ALCANTARA from detention by virtue of the
property bond posted by him for his provisional liberty in Criminal Case No. 96-6531, unless he is
being detained for some other lawful cause or causes.
No costs.
SO ORDERED.

THE CA RULING

The CA ruled that the RTC should have confined itself to determining whether or not the MTC
committed grave abuse of discretion in denying petitioners application for probation. Since no
appeal or other plain, speedy and adequate remedy in the ordinary course of law is available against
the denial of probation, a Rule 65 petition is clearly the appropriate remedy. However, the trial court
erred in taking cognizance of supplemental grounds assailing the judgment of conviction, because
an application for probation is a waiver of the right to appeal from the judgment of conviction and
effectively renders the same final. The CA ruled that even assuming petitioner failed to be present at
the promulgation of judgment, he had no one but himself to blame for failing to inform the MTC of his
change of address.
6

On the argument that private respondents possessed no legal personality to represent the State in a
criminal case, the CA held that petitioner himself impleaded them in the certiorari petition before the
RTC. The CA also found that petitioner filed his application for probation only on 7 September 2007,
or more than one month after he received notice of the judgment of conviction. Inasmuch as the
grant of probation rests solely on the discretion of the court, the denial thereof cannot be considered
grave abuse, viz.:
WHEREFORE, premises considered, the trial courts appealed January 28, 2008 Decision is
REVERSED and SET ASIDE. In lieu thereof, another is entered ordering the DISMISSAL of
appellees petition for certiorari.
7

Petitioner comes before this Court, assigning the following errors:

I. The Court of Appeals committed an error of law in ruling that private complainants have
personality to appeal the 28 January 2008 Decision of the RTC.
II. The Court of Appeals committed an error of law in ruling that the RTC reversibly erred in
nullifying petitioners judgment of conviction.
III. The Court of Appeals committed an error of law in ruling that petitioner is not entitled to
probation.
8

OUR RULING
The Petition lacks merit.
Anent the first issue, petitioner argues that in criminal cases, the offended party is the State, and that
private complainants interest is limited to the civil liability arising therefrom. Petitioner's application
for probation purportedly did not involve the civil aspect of the case. Heirs of the Late Francisco
Abueg v. Court of Appeals cited by the CA allegedly cannot apply, since it does not even discuss the
right of private complainants to interpose an appeal.
In the Comment it filed, the Office of the Solicitor General (OSG) reiterated that what petitioner filed
with the RTC was a petition for certiorari, which is a special civil action. It cannot be considered an
appeal in a criminal case over which only the State has an interest, but an appeal in a civil action
from which private persons can appeal in the event of an adverse outcome. Private respondents, in
their Comment, argued that the CA correctly applied Abueg, which is on all fours with the present
case. In Abueg, the accused was convicted of reckless imprudence resulting in homicide and
damage to property for crashing against and killing Francisco Abueg. Instead of filing an appeal, the
9

10

accused applied for probation. After the CA affirmed the grant of probation, the Supreme Court
entertained and acted upon the petition for certiorari filed by the victims heirs.
11

We agree with the submission of the respondents. While the present petition originated from a
criminal proceeding, what petitioner filed with the RTC was a special civil action, in which he himself
impleaded private respondents. He cannot now belatedly change his stance to the prejudice of
private respondents, who would otherwise be deprived of recourse in a civil action they did not
initiate. In any case, this Court has consistently ruled that private parties may be clothed with
sufficient personality if the facts show that the ends of substantial justice would be better served, and
if the issues in the action could be determined in a more just, speedy and inexpensive manner.
In Narciso vs. Sta. Romana-Cruz, citing People v. Calo, Jr., the Supreme Court ruled:
12

13

While the rule is, as held by the Court of Appeals, only the Solicitor General may bring or defend
actions on behalf of the Republic of the Philippines, or represent the People or the State in criminal
proceeding pending in this Court and the Court of Appeals, the ends of substantial justice would be
better served, and the issues in this action could be determined in a more just, speedy and
inexpensive manner, by entertaining the petition at bar. As an offended party in a criminal case,
private petitioner has sufficient personality and a valid grievance against Judge Adaos order
granting bail to the alleged murderers of his (private petitioners) father. (Citations omitted.)
14

Furthermore, in Paredes v. Gopengco, it was held that parties in criminal cases have sufficient
personality as "person(s) aggrieved" to file the special civil action of prohibition and certiorari under
Sections 1 and 2 of Rule 65 in line with the underlying spirit of the liberal construction of the rules, to
wit:
Furthermore, as offended parties in the pending criminal case before petitioner judge, it cannot be
gainsaid that respondents have sufficient interest and personality as person(s) aggrieved by
petitioner judges ruling on his non-disqualification to file the special civil action under sections 1 and
2 of Rule 65. Recently in line with the underlying spirit of a liberal construction of the Rules of Court
in order to promote their object, as against the literal application of Rule 110, section 2, we held,
overruling the implication of an earlier case, that a widow possesses the right as an offended party to
file a criminal complaint for the murder of her deceased husband.
15

Petitioners second and third arguments are brought by an erroneous understanding of the nature of
probation and shall be discussed jointly.
Probation is not a right but a mere privilege, an act of grace and clemency conferred by the State,
and may be granted by the court to a deserving defendant. Accordingly, the grant of probation rests
solely upon the discretion of the court. It is to be exercised primarily for the benefit of organized
society, and only incidentally for the benefit of the accused.
16

In Francisco v. Court of Appeals, the Court explained:

Probation is a special privilege granted by the state to a penitent qualified offender. It essentially
rejects appeals and encourages an otherwise eligible convict to immediately admit his liability and
save the state of time, effort and expenses to jettison an appeal. The law expressly requires that an
accused must not have appealed his conviction before he can avail of probation. This outlaws the
element of speculation on the part of the accused to wager on the result of his appeal that

when his conviction is finally affirmed on appeal he now applies for probation as an "escape hatch"
thus rendering nugatory the appellate court's affirmance of his conviction.
17

Aside from the goals of according expediency and liberality to the accused, the rationale for the
treatment of appeal and probation as mutually exclusive remedies is that they rest on diametrically
opposed legal positions. An accused applying for probation is deemed to have accepted the
judgment. The application for probation is an admission of guilt on the part of an accused for the
crime which led to the judgment of conviction. This was the reason why the Probation Law was
amended: precisely to put a stop to the practice of appealing from judgments of conviction even if
the sentence is probationable for the purpose of securing an acquittal and applying for the
probation only if the accused fails in his bid.
18

19

Similarly, in the present case, petitioner cannot make up his mind whether to question the judgment,
or apply for probation, which is necessarily deemed a waiver of his right to appeal. While he did not
file an appeal before applying for probation, he assailed the validity of the conviction in the guise of a
petition supposedly assailing the denial of probation. In so doing, he attempted to circumvent P.D.
No. 968, as amended by P.D. 1990, which seeks to make appeal and probation mutually exclusive
remedies.
20

The assignment of errors in the Petition before us reflects the diametrically opposed positions taken
by accused petitioner. On the one hand, he bewails the defects committed by the trial court during
the promulgation of the judgment, thus casting doubt on the judgment itself. Yet in the same breath,
he persists in his application for probation, despite the waiver and admission of guilt implicit in any
procedure for probation precisely the unhealthy wager the law seeks to prevent.
Petitioner applied for probation beyond the reglementary period, yet the trial court still allowed the
filing before ultimately denying it for lack of merit. Regarding this delay and the other defects imputed
by petitioner to the RTC, we concur with the findings of the CA:
(W)e find that public respondent committed no grave abuse of discretion in denying appellees
application for probation. Granted that appellee had not received the notice of the January 8, 2007
decision rendered in Criminal Case No. 06-6531, it appears from the record that appellee had no
one but himself to blame for the procedural quagmire he subsequently found himself in. In denying
appellees motion for reconsideration of the September 18, 2007 denial of the application for
probation, public respondent distinctly ruled as follows:
x x x. (T)he application has been filed out of time as accused himself admitted in the motion. He
blames Atty. Evan D. Dizon, his former counsel, for not notifying the court of his change of address
but Atty. Dizon himself had been trying to contact accused since 2001 even before he filed his formal
offer of evidence since all notices sent to the accuseds given address have been returned to this
court since 2001. If it is true that he moved to Cavite only in 2003, why were said notices returned
with notations unknown, unclaimed, or moved?
1wphi1

21

This Court will not countenance pleas for liberality in adverse outcomes caused by the negligence
and evasiveness of the parties themselves.
WHEREFORE, in view of the foregoing, we deny the instant Petition for lack of merit. The Court of
Appeals Decision and Resolution in CA-G.R. SP No. 103030 dated 26 September 2008 and 29 May
2009 are hereby AFFIRMED, respectively.

SO ORDERED.
THE PEOPLE OF THE PHILIPPINES, Appellee, versus EFREN MATEO y GARCIA, Appellant,
G.R. NO. 147678-87, 2004 July 7, En Banc
DECISION
VITUG, J.:
On 30 October 1996, ten (10) informations, one for each count of rape, allegedly committed on ten different dates 07 October 1995, 14 December 1995, 05 January 1996, 12 January 1996, 29 February 1996, 08 May 1996, 02 July
1996, 18 July 1996, 16 August 1996 and 28 August 1996 - were filed against appellant EFREN MATEO. Except for
the variance in dates, the ten informations, later docketed Criminal Cases No. 9351 to No. 9360, inclusive, in the
Regional Trial Court of Tarlac, uniformly read "The undersigned OIC Provincial Prosecutor upon preliminary investigation conducted by the MTC, Tarlac,
Tarlac, Branch 1, accuses Efren Mateo of Brgy. Buenavista, Tarlac, Tarlac of the crime of Rape, committed as follows:
That on or about January 12, 1996, in the Municipality of Tarlac, Province of Tarlac, Philippines and within the
jurisdiction of this Honorable Court, the said accused Efren Mateo y Garcia, who is the guardian of the complaining
witness, did then and there willfully, unlawfully and feloniously and by means of force and intimidation have carnal
knowledge with said Imelda C. Mateo in their house against her consent."[1]
The trial ensued following a plea of not guilty entered by appellant to all the charges.
According to Imelda Mateo, she was born on 11 September 1980 to the spouses Dan Icban and Rosemarie
Capulong. Rosemarie Capulong and appellant started to live together without the benefit of marriage when private
complainant was only two years old. Imelda stayed with her mother and appellant in a house in Buenavista, Tarlac,
and adopted the surname of appellant when she started schooling.
Imelda recalled that each time the ten rape incidents occurred her mother, Rosemarie, was not at home. On 07
October 1995, the date of the first rape, Rosemarie went to Bamban and returned home only the next day. The
second rape was said to have occurred on 14 December 1995, while her mother was attending a seminar for daycare workers. Imelda recalled the third rape to have been committed on 05 January 1996, the same day her mother
resigned from her job and left for Manila. The fourth rape, she said, happened a week later, on 12 January 1996,
when Rosemarie Capulong was attending yet another seminar for day-care workers. The fifth incident was on 29
February 1996, when Rosemarie left for Manila to follow-up her application for an overseas job. The sixth rape took
place on 08 May 1996 when Rosemarie was once again in Manila to attend to her application papers. On 01 July
1996, Rosemarie and appellant left for Manila as Rosemarie was scheduled to depart for Jeddah. Appellant returned
home in the evening of the next day, 02 July 1996, the same day the job recruiter relayed the news that Rosemarie
Capulong could not yet leave for Jeddah. During the night, appellant again molested Imelda. With Rosemarie finally
away, appellant frequented his nocturnal visits. On the night of 18 July 1996, appellant went into her room and
abused her while her siblings were sleeping in the sala. The same incident was repeated on the night of 16 August
1996 when appellant, already naked, entered the room and sexually assaulted Imelda. The last rape was committed
on 28 August 1996. According to private complainant, she never reported any of the ten incidents to anybody
because the accused had threatened to kill her and her mother if she were to disclose the matter to anyone.
Imelda stated that each of the ten rape incidents were committed in invariably the same fashion. All were perpetrated
inside the house in Buenavista, Tarlac, during the night and, each time, she would try to ward off his advances by
kicking him but that he proved to be too strong for her. These incidents occurred in the presence of her three
sleeping siblings who failed to wake up despite the struggles she exerted to fend off the advances. She recalled that
in all ten instances, appellant had covered her mouth with a handkerchief to prevent her from shouting.

Subsequently, however, she changed her statement to say that on two occasions, particularly the alleged sexual
assaults on 02 July 1996 and 18 July 1996, appellant had only covered her mouth with his hands. Still much later,
Imelda testified that he had not covered her mouth at all.
The predictable pattern of the rape incidents testified to by Imelda prompted the defense to ask her whether she had,
at any one time, taken any protective measure in anticipation of the rape incidents. She replied that once she had
requested her brothers and sister to keep her company in the bedroom at night but appellant had scolded them. On
the night of the fourth rape, she narrated that she armed herself with a knife but, when appellant entered her room
that night, she was not able to retrieve the bladed weapon from under the bed as appellant was sitting right on top of
it.
Dr. Rosario Fider, the second witness for the prosecution, stated that she had physically examined private
complainant on 14 October 1996 and found superficially healed lacerations at 3:00, 6:00 and 9:00 positions on her
private organ that could have been caused by an insertion of an instrument or by sexual intercourse. According to Dr.
Fider, the lacerations pointed to possibly one or two, and at most three, incidents of rape, which had happened not
earlier than two weeks before the date of the physical examination.
Appellant denied each of the charges. On 07 October 1995, the date of the first rape, he claimed that he was in
Barangay Talaga, Capas, to pick up newly hatched ducklings, numbering about a thousand, which had to be properly
fed, kept warm and constantly cared for that required him to be around the entire day and night for two weeks. The
fowls had then to be brought into an open field located one and a half kilometers away which could be traversed by
foot. He continued to tend to the animals from 20 October 1995 until sometime in February 1996. During the period,
he was able to go home only once a week or three times a month.
On 14 December 1995, the supposed date of the second rape, appellant admitted that he had temporarily left the
care of his ducks to go caroling with his wife, their daughter Imelda and some friends. He immediately returned to
care for his ducks, located some 500 meters from their residence, that kept him busy and away from home when the
third, fourth and fifth rape incidents were said to have taken place on the 5th and 12th of January and 29th of
February of 1996. While he admitted to leaving occasionally the animals in order to go home, these visits, however,
were said to be brief and mainly for getting some food and fresh clothes. Appellant could not recall when exactly he
sold the ducks but it was definitely prior to 08 May 1996, the day he was accepted and reported for work at the LA
Construction of Hacienda Luisita, Tarlac, located some three kilometers away. On 08 May 1996, the date of the sixth
rape, he was at work from seven oclock in the morning until the following day to finish a rush job.
On 01 July 1996, he accompanied his wife, Rosemarie, to Manila who was scheduled to leave for Jeddah the
following day. Upon being advised that her flight was postponed, the couple stayed in the house of one Luding
Sevilla in Caloocan. On 03 July, he returned to Tarlac. From 15 July to September, 1996, he was given the nightshift
at the LA Construction. Appellant asserted that it was impossible for him to have raped private complainant on 28
August 1996 because at six oclock that evening, his friends Boy Botio, Boy Pineda, Marvin Dalangin and Nelson
Castro had picked him up at his house to attend the fiesta at Barangay Murcia, Concepcion, Tarlac, where they spent
the night.
Appellant dismissed the charges against him as being the malicious retribution of a vengeful stepdaughter.
Allegedly, on 11 October 1996, he took private complainant to task after his son, Marlon Mateo, who had reported
seeing her engaged in sexual intercourse with one Pikong Navarro inside the room of their house. Earlier, on 05
August 1996, he also learned that Sharon Flores, a neighbor and a friend of private complainant, had caught his
stepdaughter and Navarro in a very compromising position. In anger, he hit Imelda twice with a piece of bamboo. He
then forbade her from going out at night and leaving her siblings alone in the house.
Rosemarie Capulong, the mother of private complainant, rose to testify in defense of her common-law husband.
Capulong asserted that she had not at any time, prior to her departure for Jeddah, spent any night outside their
house. Rosemarie said that she was a day-care teacher from June 1990 until June 1996. On 07 October 1995, the
date of the supposed first rape, she was at home and did not go to Bamban as so claimed by private complainant.
Capulong disputed the claim of private complainant that she attended a seminar for day-care workers on 12 January
1996 since her job did not require her to attend seminars except for regular meetings held on the last Friday of every
month, with each meeting lasting for only half a day. The last seminar she had attended was in June of 1990 in

Tarlac. On 29 February 1996, Rosemarie was also certain that she spent the night at home as she had to report for
work the following day. She started obtaining documents for her planned employment abroad only on 12 February
1996, when she secured her birth certificate in Bamban as so attested by the date appearing on the certification from
the Municipal Civil Registrar of Bamban. On 08 May 1996, she admitted being away from home while attending a
general assembly of day-care workers in Zambales. On that day, appellant was likewise not at home due to his
overtime work up until about three or four oclock in the early morning. Imelda herself, Capulong testified, had
attended on that day the San Miguel fiesta. Contrary to the allegation of private complainant, the witness was not in
Manila on the 5th and 12th of January 1996 because, at that time, she had yet no plans of working overseas. She
denied the assertions of private complainant that Capulong had resigned from her day-care work on 05 January
1996, saying it was actually months later, or in June of 1996, when she quit her job. It was on 13 February 1996
when she went to Manila for the first time to attend to her application for a possible overseas work. She made
subsequent trips to the city, that is, on the 3rd, 5th, 8th and 24th of the month of June, to follow-up her employment
papers and to submit herself to a medical check-up. All these visits only took a day, and she would always be home
in Buenavista at nightfall. On 01 July 1996, appellant accompanied her to Manila but, upon learning that her flight
was postponed, they spent the night in Caloocan. The couple stayed together in Manila until 03 July 1996, when
appellant decided to return to Tarlac. Rosemarie worked in Jeddah, Saudi Arabia, until 11 November 1996 when she
decided to return home.
Rosemarie Capulong corroborated the testimony of appellant regarding his whereabouts from October 1995, when
the ducks were first brought to the field, until 15 December 1995, when appellant had joined her and their friends
caroling. Capulong believed that the charges may have been fabricated by her relatives who were jealous of
appellant because it was he, not they, who had been receiving the remittances of her earnings from Saudi Arabia.
Sharon Flores, a neighbor, testified that, about noontime on 05 August 1996, she repaired to the house of private
complainant to investigate rumors regarding a man seen entering the Capulong residence. When she went in, she
saw private complainant and Pikong Navarro lying on the bed, embracing each other under a blanket.
Anselmo Botio, a friend of appellant, and Marlon Mateo, a brother of private complainant, corroborated appellants
alibi. Botio said that on 28 August 1996, at six oclock in the evening, he, together with appellant and some friends,
went to attend the fiesta in Barangay Murcia upon the invitation of one Ruben Santos. The group arrived in Murcia at
seven oclock that evening and promptly had dinner and a drinking spree which lasted until the morning of the next
day.
Marlon Mateo testified that one day in October 1996, while his mother was working overseas, he arrived home from
school, and saw Pikong Navarro and private complainant, both naked, on the bed. Navarro was on top of private
complainant and was making thrusting motions. Marlon Mateo hurriedly left to report the incident to his father.
At the conclusion of the trial, the court a quo issued its decision, dated 23 January 2001, finding appellant guilty
beyond reasonable doubt of ten (10) counts of rape
"WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of ten (10) counts of rape and is hereby
sentenced to suffer the penalty of reclusion perpetua for each count of rape and to indemnify the complainant the
sum of P50,000.00 as actual damages and P50,000.00 as moral damages for each count of rape."[2]
More often than not, the Court has deemed it sufficient to convict an accused for rape solely on the basis of the
testimony of the victim.[3] The heavy reliance normally given by the Court on the narration of the victim finds
justification on the fact that, generally, she would be the sole witness to the incident and the shy and demure
character of the typical Filipina would preclude her from fabricating that crime. It is imperative, nonetheless, that the
testimony must be convincing and straightforward in order to avoid any serious doubt from being cast on the veracity
of the account given.
Relative to the first supposed rape incident, private complainant categorically stated that she had slept in the lone
bedroom of the house while her siblings and her stepfather slept in the sala
Q.

How did (sic) he able to remove your t-shirt and shorts?

A.

He brought me to the sala and in that place when he undressed me, sir.
x x x

xxx

xxx

Q.

How did (sic) he able to take you out from the room? In what way?

A.

She (sic) lifted me and still my mouth was covered, my hands were stocked and I cannot move, sir.

Q. She (sic) lifted you by his two hands, is that right?

A.

Yes, sir.[4]

Q.

You testified on direct examination that there is only one room in your house, is that right?

A.

Yes, sir.

Q.

And you were then sleeping inside your house in that one room, is that right?

A.

Yes, sir.

Q. While your brothers as well as your stepfather were then sleeping outside your room, you [were] also sleeping,
is that right?
A.

Yes, sir.[5]

In the next breath, however, she testified that all her three siblings were sleeping with her on the night of 07 October
1995 Q.

How did (sic) he able to remove your t-shirt and shorts?

A.

He brought me to the sala and in that place when he undressed me, sir.

Q. Do you want to tell this Honorable Court that he brought you to the sala where your brothers Ryan and Marlon
and your sister Iris were then sleeping?
A.

My brothers and sister were sleeping in the room, sir.

Q.

Is it not a fact that there was only one room in your house?

A.

But they slept there on that night, sir.

Q. In other words, Madam Witness, you were sleeping together with Ryan, Marlon, and Iris by that time in one
room together in one bed?
A.

Yes, sir.[6]

Still, later, Imelda changed her testimony and said that her brothers were in the sala and that it was only her sister Iris
who was with her in the bedroom when the rape incidents were committed Q.

How about your brother Ryan where did he sleep on October 7, 1995?

A.

At the sala, sir.

Q.

Who was with him in the sala?

A.

He [was] sleeping with my stepfather and my brother Marlon, sir.

Q.

How about Iris, where was she sleeping?

A.

She was with me, sir.

Q. You mean to imply to the Court that according to you the accused abused you on October 7, 1995, Iris [was]
with you in the room?
A.

Yes, sir.

Q.

Are you sure of that?

A.

Yes, sir.
x x x

xxx

xxx

Q. You stated in your direct testimony that on October 7, 1995 your father entered your room where you were
sleeping, covering your mouth and forced you to go to the sala, do you recall that statement?
A.

No, sir.

Q.

Do you not remember that you have testified that he was able to take you to the sala?

A.

No, sir.

Q.

And then when you reached the sala, you stated that the accused criminally abused you?

A.

No, sir.

Q. Do you not remember having been asked by the prosecutor examining you, and now I cite to you your
statement; `Q - Public Prosecutor Llobrera, `Now, let us make it clear. You said you were brought to the sala and
your answer, `Yes, sir. Do you not remember having made that statement?
A.

No, sir.

Q. And another question, `When you reached the sala what were the first things he did to you and your answer,
`He kissed me, sir. Do you remember that?
A.

No, sir. The first time he abused me was in the room, sir.[7]

The Solicitor General would posit that the claim of private complainant that she had the sole privilege of sleeping in
the lone bedroom of their house while the rest of the family, namely both her parents and her three siblings, had to
squeeze themselves in the sala strained credulity, and that the testimony of her mother, Rosemarie Capulong, to the
effect that the couple were the occupants of the single bedroom while their children stayed in the sala where the
television was located, made more sense.
Imelda testified that her three siblings - Marlon, Ryan and Iris - were sleeping inside the house every time the rape
incidents were committed. The identical testimony of everyone else in the Mateo household, including her mother
Rosemarie Capulong and brother Marlon Mateo, exposed such assertions to be a blatant lie and categorically stated

that Ryan himself had never stayed in the Mateo residence because he was living with his grandparents since
childhood.
Private complainant testified that during the rape incidents she was gagged with a handkerchief which rendered her
unable to shout for help. Later on, however, she gave different versions on whether appellant covered her mouth with
his hand or with a handkerchief during the rape incidents occurring on 07 October 1995, 05 January 1996, 12
January 1996, 18 July 1996, 16 August 1996 and 28 August 1996. Eventually, she repudiated her earlier testimony
by stating that appellant had never covered her mouth, either with a handkerchief or with his hand Q.

Both the incidents of July 2 and July 18, according to you, he only covered your mouth on both occasions?

A.

Yes, sir.

Q.

He did not tie your mouth with anything?

A.

No, sir.

Q. Miss Witness, in your statement also on August 20, 1997, you stated that the accused covered your mouth and
tied your mouth with a handkerchief on both occasions. Do you remember having given that statement?
A.

No, sir.

Q.

So, you do not remember having made that statement?

A.

No, sir.

Q. Recalling your testimony you gave on August 20, 1997, for the July 2 occasion and the testimony that you gave
as appearing on page 18 of the transcript of stenographic notes. These questions and answers were given and
answered by you. `Q.
While he was doing all these things to you, did you call for help? A.
I cannot shout
because my mouth was covered with a handkerchief, sir. Q. Was he holding that handkerchief? A. It was tied, sir.
On July 17, 1997, you said that the accused tied your mouth on July 2, 1996, and you said that you cannot shout
because your mouth was tied with a handkerchief. Do you remember having stated that?
A.

No, sir.
x x x

xxx

xxx

Q. On the July 18 occasion, you also stated in your direct testimony on August 29, 1997, when asked these
following questions appearing on page 21 of the transcript of stenographic notes. `Q. Tell the Court how did he rape
you on that night? A. On that night while I was sleeping in my room, he tied a handkerchief in my mouth so I could
not shout, sir. Do you remember having stated that?
A.

No, sir.

Q. And also you were asked this question: `Q. After tying this handkerchief to your mouth, what did he do to
you? You said that he raped you. Do you remember having given this statement?
A.

No, sir.[8]

Also quite telling were some discrepancies in the testimony of private complainant regarding the whereabouts of her
mother Rosemarie Capulong on the dates of the incidents. According to private complainant, it was when her mother
Rosemarie was not at home when appellant would commit the dastardly crimes. Not only did the account of Imelda
contradict that of Rosemarie but that Imelda herself would appear to have made irreconcilable statements. According

to her, on 07 October 1995, the date of the first rape, Rosemarie had gone to Bamban to visit her mother.
Subsequently, however, she said that Rosemarie went to Bamban because she worked there, only to later say that,
at that time, Rosemarie had already resigned from work. Imelda would further change her story by stating that
Rosemarie Capulong did not report for work that day; then, in a quick turnaround, she remarked that her mother did
go to Bamban not to work but to get her birth certificate. Interestingly, Imelda said that 07 October 1995 was a
working day, and that she had gone to school the following day. Judicial notice could be taken of the fact, however,
that 07 October 1995 was a Saturday and that the following day, a Sunday, could not have been a school day. With
respect to the rape committed on 12 January 1996, Imelda testified that Rosemarie was attending a seminar; yet,
when cross-examined, she told the trial court that on that day Rosemarie went to Manila to borrow money from her
cousin.
The subsequent conduct of a victim could also either confirm or negate her claim of rape.[9] The human nature,
characterized by an instinct for self-preservation and an aversion to humiliation, would dictate that a typical victim of
rape could display changes in behavior, erratic mood swings and an alteration in her daily routine. No such changes
were observed in the case of private complainant. She testified that on the day after the first incident on 07 October
1995, she woke up at six o'clock in the morning, washed her face, and went to school. There was no apparent
attempt on her part to run away from home despite every chance to escape from her tormentor or to exercise every
means available to ensure that the incidents would not be repeated. At fifteen years old, already old enough to think
of her safety and well-being, Imelda Mateo went about her usual business as if nothing unusual had occurred. She
continued to sleep in the same bedroom with nary any precaution against the bestiality she was sure would come
everytime her mother was away.
While it may be argued that appellant's moral ascendancy over Imelda was enough to intimidate her to suffer in
silence; still, it could well be improbable for a victim who had been raped no less than ten times not to make a simple
outcry against her unarmed rapist when she had every opportunity to do so.
The Solicitor General assails the factual findings of the trial court and recommends an acquittal of appellant.
The records would disclose that the first half of the trial, from 17 July 1997 until 15 October 1997, was conducted by
Judge Lino L. Diamsay. Judge Edgardo F. Sundiam conducted the trial from 14 January 1999 until 24 February
1999. From 11 May 1999 until the day of the last hearing, it was Judge Arsenio P. Adriano who heard the case.
While this change of the presiding judges would not invalidate the proceedings, it did deny to the deciding magistrate
the opportunity to observe in entirety the demeanor of the witnesses which could well be vital to the decision-making
process, particularly where credibility would, by and large, constitute the singular issue.
The law demands that only proof of guilt beyond reasonable doubt can justify a verdict of guilt.
Up until now, the Supreme Court has assumed the direct appellate review over all criminal cases in which the penalty
imposed is death, reclusion perpetua or life imprisonment (or lower but involving offenses committed on the same
occasion or arising out of the same occurrence that gave rise to the more serious offense for which the penalty of
death, reclusion perpetua, or life imprisonment is imposed). The practice finds justification in the 1987 Constitution
Article VIII, Section 5. The Supreme Court shall have the following powers:
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may
provide, final judgments and orders of lower courts in:
x x x

xxx

xxx

(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
The same constitutional article has evidently been a thesis for Article 47 of the Revised Penal Code, as amended by
Section 22 of Republic Act No. 7659,[10] as well as procedural rules contained in Section 3 of Rule 122,[11] Section
10 of Rule 122,[12] Section 13 of Rule 124[13] and Section 3 of Rule 125[14] of the Rules of Court. It must be
stressed, however, that the constitutional provision is not preclusive in character, and it does not necessarily prevent

the Court, in the exercise of its rule-making power, from adding an intermediate appeal or review in favor of the
accused.
In passing, during the deliberations among the members of the Court, there has been a marked absence of unanimity
on the crucial point of guilt or innocence of herein appellant. Some are convinced that the evidence would appear to
be sufficient to convict; some would accept the recommendation of acquittal from the Solicitor General on the ground
of inadequate proof of guilt beyond reasonable doubt. Indeed, the occasion best demonstrates the typical dilemma,
i.e., the determination and appreciation of primarily factual matters, which the Supreme Court has had to face with in
automatic review cases; yet, it is the Court of Appeals that has aptly been given the direct mandate to review factual
issues.
While the Fundamental Law requires a mandatory review by the Supreme Court of cases where the penalty imposed
is reclusion perpetua, life imprisonment, or death, nowhere, however, has it proscribed an intermediate review. If only
to ensure utmost circumspection before the penalty of death, reclusion perpetua or life imprisonment is imposed, the
Court now deems it wise and compelling to provide in these cases a review by the Court of Appeals before the case
is elevated to the Supreme Court. Where life and liberty are at stake, all possible avenues to determine his guilt or
innocence must be accorded an accused, and no care in the evaluation of the facts can ever be overdone. A prior
determination by the Court of Appeals on, particularly, the factual issues, would minimize the possibility of an error of
judgment. If the Court of Appeals should affirm the penalty of death, reclusion perpetua or life imprisonment, it could
then render judgment imposing the corresponding penalty as the circumstances so warrant, refrain from entering
judgment and elevate the entire records of the case to the Supreme Court for its final disposition.[15]
Statistics would disclose that within the eleven-year period since the re-imposition of the death penalty law in 1993
until June 2004, the trial courts have imposed capital punishment in approximately 1,493,[16] out of which 907
cases[17] have been passed upon in review by the Court. In the Supreme Court, where these staggering numbers
find their way on automatic review, the penalty has been affirmed in only 230 cases comprising but 25.36% of the
total number. Significantly, in more than half or 64.61% of the cases, the judgment has been modified through an
order of remand for further proceedings, by the application of the Indeterminate Sentence Law or by a reduction of
the sentence. Indeed, the reduction by the Court of the death penalty to reclusion perpetua has been made in no
less than 483 cases or 53.25% of the total number. The Court has also rendered a judgment of acquittal in sixty-five
(65) cases. In sum, the cases where the judgment of death has either been modified or vacated consist of an
astounding 71.77% of the total of death penalty cases directly elevated before the Court on automatic review that
translates to a total of six hundred fifty-one (651) out of nine hundred seven (907) appellants saved from lethal
injection.
Under the Constitution, the power to amend rules of procedure is constitutionally vested in the Supreme Court Article VIII, Section 5. The Supreme Court shall have the following powers:
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts.
Procedural matters, first and foremost, fall more squarely within the rule-making prerogative of the Supreme Court
than the law-making power of Congress. The rule here announced additionally allowing an intermediate review by
the Court of Appeals, a subordinate appellate court, before the case is elevated to the Supreme Court on automatic
review, is such a procedural matter.
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, and any other rule 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, as well as the resolution of the Supreme Court en banc, dated 19 September 1995, in "Internal
Rules of the Supreme Court" in cases similarly involving the death penalty, are to be deemed modified accordingly.

WHEREFORE, the instant case is REMANDED, and all pertinent records thereof ordered to be FORWARDED, to the
Court of Appeals for appropriate action and disposition, consistent with the discussions hereinabove set forth. No
costs. SO ORDERED.

G.R. No. 173797

August 31, 2007

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
EMMANUEL ROCHA alias "Nopoy" and RUEL RAMOS alias "Aweng," Accused-Appellants.
RESOLUTION
CHICO-NAZARIO, J.:
On 12 May 1994, an Information was filed against herein accused-appellants Emmanuel Rocha y
Yeban alias Nopoy (Rocha) and Ruel Ramos y Alcober alias Aweng (Ramos), along with Romeo
Trumpeta y Aguaviva (Trumpeta), in the Regional Trial Court (RTC) of Quezon City, Branch 215.
Another accused, Eustaquio Cenita y Omas-As (Cenita), was impleaded in the Amended
Information. The Amended Information alleged a crime committed as follows:
That on or about the 28th day of September, 1993, in Quezon City, Philippines, the above-named
accused, conspiring and confederating with several others, whose true identities, whereabouts and
personal circumstances have not as yet been ascertained and mutually helping one another, all
armed with high power (sic) guns, with intent to gain and by means of violence and intimidation
against person (sic), did then and there, wilfully, unlawfully and feloniously rob the Bank of the
Philippine Islands (BPI) represented by ALEX BABASA, JR. in the following manner, to wit: on the
date and place aforementioned, while Alex Babasa, Jr. was placing the money contained in two (2)
duffle bags inside the vault of the armored van, with the two (2) security guards on the watch, the
said accused pursuant to their conspiracy and with intent to kill, opened fire at them hitting S/G
ROGER TARROQUIN and S/G TITO HOMERES, thereby inflicting upon them serious and mortal
wounds which were the immediate cause of their death and thereafter, accused took, robbed and
carried away the said two (2) duffle bags containing P1.5 million pesos, Philippine Currency, and the
12 gauge shotgun with SN 1048245 worth P11,000.00 issued to S/G Roger Tarroquin and the cal. 38
revolver with SN 23238 worth P6,500.00 issued to S/G Tito Henares and owned by Eaglestar
Security Services, Incorporated to the damage and prejudice of the offended parties in the amount
aforementioned and to the heirs of the said victims. 1
On 6 February 1996, the RTC promulgated its Decision in Criminal Case No. Q-93-49474 finding
Trumpeta, Cenita and herein accused-appellants Rocha and Ramos guilty of the crime of Robbery
with Homicide, and imposing upon them the penalty of reclusion perpetua. The RTC disposed of the
case as follows:
WHEREFORE, the accused ROMEO TRUMPETA y AGUAVIVA, EMMANUEL RIOCHA y YEBAN,
RUEL RAMOS y ALCOBER and EUSTAQUIO CENITA y OMAS-AS, are found GUILTY of the crime
of Robbery With Homicide as charged, the prosecution having proven their guilt beyond reasonable
doubt. In accordance with Article 294 of the Revised Penal Code, paragraph 1 thereof, all of the
above-named accused are sentenced to suffer the penalty of reclusion perpetua with all the

accessory penalties attendant thereto. They could have been sentenced to death but for the fact that
the death penalty was suspended, then the crime was committed. 2
In addition, all the accused are jointly and severally ordered to pay the heirs of deceased Roger
Tarroquin and Tito Henares P50,000.00 each, respectively. Further, all the accused are jointly and
severally ordered to indemnify the Bank of the Philippine Islands the sum of P1,600,000. With costs
against the accused.3
Trumpeta, Cenita and accused-appellants appealed to this Court. On 13 September 1999, however,
Trumpeta filed an Urgent Motion to Withdraw Appeal,4 which was granted by this Court on 11
October 1999.5 On 29 May 2001, Cenita filed his own Urgent Motion to Withdraw Appeal,6 which was
granted by this Court on 15 August 2001.7
On 25 August 2004, pursuant to the Decision of this Court in People v. Mateo, 8 we transferred the
case to the Court of Appeals.
On 31 March 2006, the Court of Appeals promulgated its Decision9 in CA-G.R. CR H.C. No. 01765
affirming with clarification the Decision of the RTC, thus:
Wherefore, the appealed Decision is AFFIRMED with CLARIFICATION. Appellants Emmanuel
Rocha @ "Nopoy" and Ruel Ramos @ "Aweng" are found guilty as co-principals in the crime of
Robbery with Homicide and each is hereby sentenced to suffer the penalty of reclusion perpetua.
Each one of them is ordered to pay civil indemnity in the amount of [Fifty Thousand Pesos]
(P50,000.00) each to the heirs of Roger Tarroquin and Tito Homeres. All other aspects of the
appealed Decision are MAINTAINED.10
On 18 April 2006, accused-appellants Rocha and Ramos, through the Public Attorneys Office
(PAO), appealed the Decision of the Court of Appeals to this Court.
On 13 September 2006, this Court required the parties to submit their respective supplemental
briefs.
On 14 November 2006, accused-appellant Rocha, having been detained for more than seventeen
years, filed a Motion to Withdraw Appeal, stating that he intends to apply for parole. He also
manifested that his co-accused on this case, Romeo Trumpeta and Estaquio Cenita, had already
withdrawn their appeal.
On 14 February 2007, plaintiff-appellee People of the Philippines, through the Solicitor General, filed
a Comment opposing accused-appellant Rochas Motion to Withdraw Appeal.
On 28 February 2007, accused-appellant Ramos followed suit and filed his own Manifestation with
Motion to Withdraw Appeal. He likewise manifested that he had already served fourteen years in
prison and that all his other co-accused had already withdrawn their appeal, and applied for
executive clemency to avail himself of parole.11
We are therefore determining herein whether or not the Motions to Withdraw Appeal of accusedappellants Rocha and Ramos should be granted.

According to the plaintiff-appellee,

8. It is well-settled that in cases where the penalty imposed is reclusion perpetua, appeal in
criminal cases to this Honorable Court is a matter of right. A review of the trial courts
judgment of conviction is automatic and does not depend on the whims of the convicted
felon. It is mandatory and leaves the reviewing court without any option.
9. In U.S. v. Laguna [17 Phil. 533 (1910)], this Honorable Court first enunciated the rationale
behind the Courts power of automatic review. The High Court ratiocinated:
The requirement that the Supreme Court pass upon a case in which capital punishment has
been imposed by the sentence of the trial court is one having for its object simply and solely
the protection of the accused. Having received the highest penalty which the law imposes,
he is entitled under that law to have the sentence and all the facts and circumstances upon
which it is founded placed before the highest tribunal of the land to the end that its justice
and legality may be clearly and conclusively determined. Such procedure is merciful. It gives
a second chance of life. Neither the courts nor the accused can waive it. It is a positive
provision of the law that brooks no interference and tolerates no evasions. (emphasis
supplied)
10. No less than this Honorable Court recognizes the value of human life that it provided an
intermediate appeal or review in favor of the accused. In People vs. Mateo, this Honorable
Court held:
While the Fundamental Law requires a mandatory review by the Supreme Court of cases
where the penalty imposed is reclusion perpetua, life imprisonment, or death, nowhere,
however has it proscribed an intermediate review. If only to ensure utmost circumspection
before the penalty of death, reclusion perpetua or life imprisonment is imposed, the court
now deems it wise and compelling to provide in these cases a review by the Court of
Appeals before the case is elevated to the Supreme Court. Where life and liberty are at
stake, all possible avenues to determine his guilt or innocence must be accorded an
accused, and no care in the evaluation of the facts can ever be undone. A prior
determination by the court of Appeals on, particularly, the factual issues, would minimize the
possibility of an error in judgment. If the court of Appeals should affirm the penalty of death,
reclusion perpetua or life imprisonment, it could then render judgment imposing the
corresponding penalty as the circumstances so warrant, refrain from entering judgment and
elevate the entire records of the case to the Supreme Court for its final disposition.
11. Appellants motion to withdraw appeal, therefore, contravenes this Honorable Courts
power to automatically review a decision imposing the penalty of reclusion perpetua or life
imprisonment. Neither appellant nor this Honorable Court can waive by mere motion to
withdraw appeal, the Courts power to review the instant case.
12. Based on the above disquisition, the review by this Honorable court of appellants
conviction is mandatory and the withdrawal of his appeal can not be granted as it will
contravene the applicable rules and jurisprudence. 12
Plaintiff-appellee also claims that accused-appellant Rochas motion is "actually a scheme to evade
the supreme penalty of reclusion perpetua"13 and that it is "obviously merely an afterthought

designed to trifle not only with our procedural law, but more importantly, our judicial
system."14 Plaintiff-appellee continues that "if indeed, appellant Emmanuel Rocha was acting in good
faith, he should have withdrawn his appeal at the first opportunity. Instead, he waited for the
intermediate review of the RTC Decision to be first resolved and after an unfavorable decision
thereon that he now decides to withdraw his appeal." 15
We resolve to grant the Motions of accused-appellants Rocha and Ramos.
The confusion in the case at bar seems to stem from the effects of the Decision of this Court in
People v. Mateo.16 In Mateo, as quoted by plaintiff-appellee, it was stated that "[w]hile the
Fundamental Law requires a mandatory review by the Supreme Court of cases where the penalty
imposed is reclusion perpetua, life imprisonment, or death, nowhere, however, has it proscribed an
intermediate review."17 A closer study of Mateo, however, reveals that the inclusion in the foregoing
statement of cases where the penalty imposed is reclusion perpetua and life imprisonment was only
for the purpose of including these cases within the ambit of the intermediate review of the Court of
Appeals: "[this] Court now deems it wise and compelling to provide in these cases [cases where the
penalty imposed is reclusion perpetua, life imprisonment or death] review by the Court of Appeals
before the case is elevated to the Supreme Court."18
We had not intended to pronounce in Mateo that cases where the penalty imposed is reclusion
perpetua or life imprisonment are subject to the mandatory review of this Court. In Mateo, these
cases were grouped together with death penalty cases because, prior to Mateo, it was this Court
which had jurisdiction to directly review reclusion perpetua, life imprisonment and death penalty
cases alike. The mode of review, however, was different. Reclusion perpetua and life imprisonment
cases were brought before this Court via a notice of appeal, while death penalty cases were
reviewed by this Court on automatic review. Thus, the erstwhile Rule 122, Sections 3 and 10,
provided as follows:
SEC. 3. How appeal taken.
(a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original jurisdiction, shall be taken by filing a notice
of appeal with the court which rendered the judgment or final order appealed from and by
serving a copy thereof upon the adverse party.
(b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the
exercise of its appellate jurisdiction shall be by petition for review under Rule 42.
(c) The appeal to the Supreme Court in cases where the penalty imposed by the Regional
Trial Court is reclusion perpetua, or life imprisonment, or where a lesser penalty is imposed
but for offenses committed on the same occasion or which arose out of the same occurrence
that gave rise to the more serious offense for which the penalty of death, reclusion
perpetua, or life imprisonment is imposed, shall be by filing a notice of appeal in accordance
with paragraph (a) of this section.
(d) No notice of appeal is necessary in cases where the death penalty is imposed by the
Regional Trial Court. The same shall be automatically reviewed by the Supreme Court as
provided in section 10 of this Rule.

xxxx
SEC. 10. Transmission of records in case of death penalty. In all cases where the death penalty is
imposed by the trial court, the records shall be forwarded to the Supreme Court for automatic review
and judgment within five (5) days after the fifteenth (15) day following the promulgation of the
judgment or notice of denial of a motion for new trial or reconsideration. The transcript shall also be
forwarded within ten (10) days after the filing thereof by the stenographic reporter.
After the promulgation of Mateo on 7 June 2004, this Court promptly caused the amendment of the
foregoing provisions, but retained the distinction of requiring a notice of appeal for reclusion
perpetua and life imprisonment cases and automatically reviewing death penalty cases. Thus, Rule
122, Sections 3 and 10, as amended by A.M. No. 00-5-03-SC (which took effect on 15 October
2004), now provides:
SEC. 3. How appeal taken.
(a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original jurisdiction, shall be by notice of appeal
filed with the court which rendered the judgment or final order appealed from and by serving
a copy thereof upon the adverse party.
(b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the
exercise of its appellate jurisdiction shall be by petition for review under Rule 42.
(c) The appeal in cases where the penalty imposed by the Regional Trial Court is reclusion
perpetua, or life imprisonment, or where a lesser penalty is imposed but for offenses
committed on the same occasion or which arose out of the same occurrence that gave rise
to the more serious offense for which the penalty of death, reclusion perpetua, or life
imprisonment is imposed, shall be by notice of appeal in accordance with paragraph (a) of
this Rule.
(d) No notice of appeal is necessary in cases where the Regional Trial Court imposed the
death penalty. The Court of Appeals automatically review the Judgment provided in section
10 of this Rule.
xxxx
SEC. 10. Transmission of records in case of death penalty. In all cases where the death penalty is
imposed by the trial court, the records shall be forwarded to the Court of Appeals for automatic
review and judgment within twenty days but not earlier than fifteen days from the promulgation of the
judgment or notice of denial of a motion for new trial or reconsideration. The transcript shall also be
forwarded within ten (10) days after the filing thereof by the stenographic reporter.
Neither does the Constitution require a mandatory review by this Court of cases where the penalty
imposed is reclusion perpetua or life imprisonment. The constitutional provision quoted in Mateo
merely gives this Court jurisdiction over such cases:

Up until now, the Supreme Court has assumed the direct appellate review over all criminal cases in
which the penalty imposed is death, reclusion perpetua or life imprisonment (or lower but involving
offenses committed on the same occasion or arising out of the same occurrence that gave rise to the
more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is
imposed). The practice finds justification in the 1987 Constitution
Article VIII, Section 5. The Supreme Court shall have the following powers:
"(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower courts in:
"x x x

xxx

xxx

"(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher." 19
For a clear understanding of this provision, the full text thereof provides:
Section 5. The Supreme Court shall have the following powers:
1. Exercise original jurisdiction over cases affecting ambassadors, other public ministers and
consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas
corpus.
2. Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of
Court may provide, final judgments and orders of lower courts in:
a. All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
b. All cases involving the legality of any tax, impost, assessment, or toll, or any
penalty imposed in relation thereto.
c. All cases in which the jurisdiction of any lower court is in issue.
d. All criminal cases in which the penalty imposed is reclusion perpetua or higher.
e. All cases in which only an error or question of law is involved.
3. Assign temporarily judges of lower courts to other stations as public interest may require.
Such temporary assignment shall not exceed six months without the consent of the judge
concerned.
4. Order a change of venue or place of trial to avoid a miscarriage of justice.
5. Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a

simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform
for all courts of the same grade, and shall not diminish, increase, modify substantive rights.
Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless
disapproved by the Supreme Court.
6. Appoint all officials and employees of the Judiciary in accordance with the Civil Service
Law.
In this provision, only paragraphs (1) and (2) speak of jurisdiction over cases. However, this
Constitutional provision does not enumerate cases involving mandatory review. Indeed, it would
almost be silly to claim that this Court is mandatorily required to review all cases in which the
jurisdiction of any lower court is in issue. Instead, the significance of the enumeration of this Courts
jurisdiction in paragraphs (1) and (2) is that while Section 2 of the same Article VIII of the
Constitution gives to Congress the power to define, prescribe and apportion the jurisdiction of
various courts, it denies to Congress the power to deprive this Court of jurisdiction over cases
enumerated in Section 5.20
Since the case of accused-appellants is not subject to the mandatory review of this Court, the rule
that neither the accused nor the courts can waive a mandatory review is not applicable.
Consequently, accused-appellants separate motions to withdraw appeal may be validly granted.
The granting of a Motion to Withdraw Appeal, however, is addressed to the sound discretion of the
Court. After a case has been submitted to the court for decision, the appellant cannot, at his election,
withdraw the appeal.21 In People v. Casido,22 we denied the accused-appelants Urgent Motion to
Withdraw Appeal therein:
It is then clear that the conditional pardons separately extended to the accused-appellants were
issued during the pendency of their instant appeal.
In the resolution of 31 January 1995 in People vs. Hinlo, this Court categorically declared the
"practice of processing applications for pardon or parole despite pending appeals" to be "in clear
violation of law."
Earlier, in our resolution of 21 March 1991 in People vs. Sepada, this Court signified in no uncertain
terms the necessity of a final judgment before parole or pardon could be extended.
Having observed that the pronouncements in the aforementioned cases remained unheeded, either
through deliberate disregard or erroneous applications of the obiter dictum in Monsanto vs. Factoran
or the ruling in People vs. Crisola, this Court, in its resolution of 4 December 1995 in People vs.
Salle, explicitly declared:
We now declare that the "conviction by final judgment" limitation under Section 19, Article VII of the
present Constitution prohibits the grant of pardon, whether full or conditional, to an accused during
the pendency of his appeal from his conviction by the trial court. Any application therefor, if one is
made, should not be acted upon or the process toward its grant should not be begun unless the
appeal is withdrawn. Accordingly, the agencies or instrumentalities of the Government concerned
must require proof from the accused that he has not appealed from his conviction or that he has
withdrawn his appeal. Such proof may be in the form of a certification issued by the trial court or the
appellate court, as the case may be. The acceptance of the pardon shall not operate as an

abandonment or waiver of the appeal, and the release of an accused by virtue of a pardon,
commutation of sentence, or parole before the withdrawal of an appeal shall render those
responsible therefor administratively liable. Accordingly, those in custody of the accused must not
solely rely on the pardon as a basis for the release of the accused from confinement.
xxxx
This rule shall fully bind pardons extended after 31 January 1995 during the pendency of the
grantees appeal. (Italics supplied)
It follows then that the conditional pardons granted in this case to accused-appellants William Casido
and Franklin Alcorin are void for having been extended on 19 January 1996 during the pendency of
their instant appeal.
In the case at bar, however, we see no reason to deny accused-appellants Motions to Withdraw
Appeal. There is no showing that accused-appellants had already applied for parole at the time of
the filing of their Motions to Withdraw Appeal. On the contrary, they stated in their motions that they
merely intend to apply for the same.
Plaintiff-appellee claims that the present Motion to Withdraw Appeal is actually a scheme to evade
the penalty of reclusion perpetua and is meant to trifle with our judicial system. Plaintiff-appellee,
however, does not explain how the withdrawal of appeal can be used by accused-appellants for
these purposes. It seems that plaintiff-appellee is expecting that the granting of the Motions to
Withdraw Appeal would nullify the Court of Appeals Decision, on the understanding that the Court of
Appeals cannot enter judgments on cases remanded to them pursuant to Mateo. Such conclusion,
however, is applicable only where the death penalty is imposed. Rule 124, Section 13 of the Rules of
Court, which was likewise amended in A.M. No. 00-5-03-SC pursuant to Mateo, provides:
Section 13. Certification or appeal of case to the Supreme Court. (a) Whenever the Court of
Appeals finds that the penalty of death should be imposed, the court shall render judgment but
refrain from making an entry of judgment and forthwith certify the case and elevate its entire record
to the Supreme Court for review.
(b) Where the judgment also imposes a lesser penalty for offenses committed on the same
occasion or which arose out of the same occurrence that gave rise to the more severe
offense for which the penalty of death is imposed, and the accused appeals, the appeal
should be included in the case certified for review to the Supreme Court.
(c) In cases where the Court of Appeals imposes reclusion perpetua, life imprisonment or a
lesser penalty, it shall render and enter judgment imposing such penalty. The judgment may
be appealed to the Supreme Court by notice of appeal filed with the Court of Appeals.
Plaintiff-appellee must have likewise observed that accused-appellants intend to apply not only for
parole, but also for executive clemency. This is shown by the Manifestation and Motion to Withdraw
Appeal of accused-appellant Ramos, where he affirmed that he intends to follow his co-accused who
had already "applied for executive clemency to avail of parole."
It should be kept in mind that accused-appellants could not avail themselves of parole if their appeal
is dismissed, unless they also apply for executive clemency and ask for the commutation of their

reclusion perpetua sentences. Republic Act No. 4108, as amended, otherwise known as the
Indeterminate Sentence Law, does not apply to persons convicted of offenses punishable with death
penalty or life imprisonment. In several cases,23 we have considered the penalty of reclusion
perpetua as synonymous to life imprisonment for purposes of the Indeterminate Sentence Law, and
ruled that said law does not apply to persons convicted of offenses punishable with the said penalty.
As further discussed by Associate Justice Dante Tinga in his Concurring Opinion in People v.
Tubongbanua24:
Parole is extended only to those convicted of divisible penalties. Reclusion perpetua is an indivisible
penalty, with no minimum or maximum period. Under section 5 of the Indeterminate Sentence Law, it
is after "any prisoner shall have served the minimum penalty imposed on him," that the Board of
Indeterminate Sentence may consider whether such prisoner may be granted parole. There being no
"minimum penalty" imposable on those convicted to reclusion perpetua, it follows that even prior to
the enactment of Rep. Act No. 9346, persons sentenced by final judgment to reclusion perpetua
could not have availed of parole under the Indeterminate Sentence Law.
This Court cannot review, much less preempt, the exercise of executive clemency under the pretext
of preventing the accused from evading the penalty of reclusion perpetua or from trifling with our
judicial system. Clemency is not a function of the judiciary; it is an executive function. 25 Thus, it is the
President, not the judiciary, who should exercise caution and utmost circumspection in the exercise
of executive clemency in order to prevent a derision of the criminal justice system. We cannot and
shall not deny accused-appellants Motions to Withdraw Appeal just because of their intention of
applying for executive clemency. With the Constitution bestowing upon the Executive the power to
grant clemency,26 it behooves the Court to pass the ball to the President and let her determine the
fate of accused-appellants.
In sum, the mandatory review by this Court is only required for cases where the penalty imposed is
death. Where the penalty imposed is reclusion perpetua or life imprisonment, a review of the trial
court decision is conducted only when the accused files a notice of appeal. Neither the Decision of
this Court in Mateo nor the abolition of the death penalty has changed this. As the penalty imposed
by the trial court and the Court of Appeals in the case at bar is reclusion perpetua, the review by this
Court is not mandatory and, therefore, the accused-appellants can validly withdraw their appeal.
The granting of a Motion to Withdraw Appeal is addressed to the sound discretion of the Court. In
the case at bar, we see no reason to deny accused-appellants Motion to Withdraw Appeal. Plaintiffappellees allegation that the Motion was for the purpose of evading the penalty of reclusion
perpetua and trifling with our judicial system is unsubstantiated, as the Court of Appeals imposition
of reclusion perpetua, unlike an imposition of the death penalty, may be entered by said appellate
court even without another review by this Court. Neither should we deny the Motions just because of
accused-appellants intention to apply for executive clemency, since the granting of such executive
clemency is within the prerogative of the Executive Department, and not of this Court.
1avvphi1

IN VIEW OF THE FOREGOING, the respective Motions to Withdraw Appeal of accused-appellants

Emmanuel Rocha and Ruel Ramos are GRANTED, and the Court of Appeals Decision dated 31
March 2006 in CA-G.R. CR-H.C. No. 01765 is hereby deemed FINAL AND EXECUTORY.
SO ORDERED.
G.R. No. 170979

February 9, 2011

JUDITH YU, Petitioner,

vs.
HON. ROSA SAMSON-TATAD, Presiding Judge, Regional Trial Court, Quezon City, Branch
105, and the PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
BRION, J.:
We resolve the petition for prohibition filed by petitioner Judith Yu to enjoin respondent Judge Rosa
Samson-Tatad of the Regional Trial Court (RTC), Branch 105, Quezon City, from taking further
proceedings in Criminal Case No. Q-01-105698, entitled "People of the Philippines v. Judith Yu, et
al."1
The Factual Antecedents
The facts of the case, gathered from the parties pleadings, are briefly summarized below.
Based on the complaint of Spouses Sergio and Cristina Casaclang, an information for estafa against
the petitioner was filed with the RTC.
In a May 26, 2005 decision, the RTC convicted the petitioner as charged. It imposed on her a
penalty of three (3) months of imprisonment (arresto mayor), a fine of P3,800,000.00 with subsidiary
imprisonment, and the payment of an indemnity to the Spouses Casaclang in the same amount as
the fine.2
Fourteen (14) days later, or on June 9, 2005, the petitioner filed a motion for new trial with the RTC,
alleging that she discovered new and material evidence that would exculpate her of the crime for
which she was convicted.3
In an October 17, 2005 order, respondent Judge denied the petitioners motion for new trial for lack
of merit.4
On November 16, 2005, the petitioner filed a notice of appeal with the RTC, alleging that pursuant to
our ruling in Neypes v. Court of Appeals,5 she had a "fresh period" of 15 days from November 3,
2005, the receipt of the denial of her motion for new trial, or up to November 18, 2005, within which
to file a notice of appeal.6
On November 24, 2005, the respondent Judge ordered the petitioner to submit a copy of Neypes for
his guidance.7
On December 8, 2005, the prosecution filed a motion to dismiss the appeal for being filed 10 days
late, arguing that Neypes is inapplicable to appeals in criminal cases.8
On January 4, 2006, the prosecution filed a motion for execution of the decision. 9
On January 20, 2006, the RTC considered the twin motions submitted for resolution.

On January 26, 2006, the petitioner filed the present petition for prohibition with prayer for the
issuance of a temporary restraining order and a writ of preliminary injunction to enjoin the RTC from
acting on the prosecutions motions to dismiss the appeal and for the execution of the decision. 10
The Petition
The petitioner argues that the RTC lost jurisdiction to act on the prosecutions motions when she
filed her notice of appeal within the 15-day reglementary period provided by the Rules of Court,
applying the "fresh period rule" enunciated in Neypes.
The Case for the Respondents
The respondent People of the Philippines, through the Office of the Solicitor General (OSG), filed a
manifestation in lieu of comment, stating that Neypes applies to criminal actions since the evident
intention of the "fresh period rule" was to set a uniform appeal period provided in the Rules. 11
In view of the OSGs manifestation, we required the Spouses Casaclang to comment on the
petition.12
In their comment, the Spouses Casaclang aver that the petitioner cannot seek refuge in Neypes to
extend the "fresh period rule" to criminal cases because Neypes involved a civil case, and the
pronouncement of "standardization of the appeal periods in the Rules" referred to the interpretation
of the appeal periods in civil cases, i.e., Rules 40, 41, 42 and 45, of the 1997 Rules of Civil
Procedure among others; nowhere in Neypes was the period to appeal in criminal cases, Section 6
of Rule 122 of the Revised Rules of Criminal Procedure, mentioned. 13
Issue
The core issue boils down to whether the "fresh period rule" enunciated in Neypes applies to
appeals in criminal cases.
The Courts Ruling
We find merit in the petition.
The right to appeal is not a constitutional, natural or inherent right it is a statutory privilege and of
statutory origin and, therefore, available only if granted or as provided by statutes. It may be
exercised only in the manner prescribed by the provisions of the law.14 The period to appeal is
specifically governed by Section 39 of Batas Pambansa Blg. 129 (BP 129), 15 as amended, Section 3
of Rule 41 of the 1997 Rules of Civil Procedure, and Section 6 of Rule 122 of the Revised Rules of
Criminal Procedure.
Section 39 of BP 129, as amended, provides:
SEC. 39. Appeals. The period for appeal from final orders, resolutions, awards, judgments, or
decisions of any court in all cases shall be fifteen (15) days counted from the notice of the final
order, resolution, award, judgment, or decision appealed from: Provided, however, That in habeas

corpus cases, the period for appeal shall be forty-eight (48) hours from the notice of the judgment
appealed from.
Section 3, Rule 41 of the 1997 Rules of Civil Procedure states:
SEC. 3. Period of ordinary appeal. The appeal shall be taken within fifteen (15) days from notice
of the judgment or final order appealed from. Where a record on appeal is required, the appellant
shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment
or final order.
The period of appeal shall be interrupted by a timely motion for new trial or reconsideration.
No motion for extension of time to file a motion for new trial or reconsideration shall be allowed.
Section 6, Rule 122 of the Revised Rules of Criminal Procedure reads:
SEC. 6. When appeal to be taken. An appeal must be taken within fifteen (15) days from
promulgation of the judgment or from notice of the final order appealed from. This period for
perfecting an appeal shall be suspended from the time a motion for new trial or
reconsideration is filed until notice of the order overruling the motion has been served upon
the accused or his counsel at which time the balance of the period begins to run.
In Neypes, the Court modified the rule in civil cases on the counting of the 15-day period within
which to appeal. The Court categorically set a fresh period of 15 days from a denial of a motion
for reconsideration within which to appeal, thus:
The Supreme Court may promulgate procedural rules in all courts. It has the sole prerogative to
amend, repeal or even establish new rules for a more simplified and inexpensive process, and the
speedy disposition of cases. In the rules governing appeals to it and to the Court of Appeals,
particularly Rules 42, 43 and 45, the Court allows extensions of time, based on justifiable and
compelling reasons, for parties to file their appeals. These extensions may consist of 15 days or
more.
To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to
appeal their cases, the Court deems it practical to allow a fresh period of 15 days within which to file
the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a
motion for a new trial or motion for reconsideration.
Henceforth, this "fresh period rule" shall also apply to Rule 40 governing appeals from the
Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the
Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial
agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme
Court. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt
of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or
any final order or resolution.16
The Court also reiterated its ruling that it is the denial of the motion for reconsideration that
constituted the final order which finally disposed of the issues involved in the case.

The raison dtre for the "fresh period rule" is to standardize the appeal period provided in the Rules
and do away with the confusion as to when the 15-day appeal period should be counted. Thus, the
15-day period to appeal is no longer interrupted by the filing of a motion for new trial or motion for
reconsideration; litigants today need not concern themselves with counting the balance of the 15-day
period to appeal since the 15-day period is now counted from receipt of the order dismissing a
motion for new trial or motion for reconsideration or any final order or resolution.
While Neypes involved the period to appeal in civil cases, the Courts pronouncement of a "fresh
period" to appeal should equally apply to the period for appeal in criminal cases under Section 6 of
Rule 122 of the Revised Rules of Criminal Procedure, for the following reasons:
First, BP 129, as amended, the substantive law on which the Rules of Court is based, makes no
distinction between the periods to appeal in a civil case and in a criminal case. Section 39 of BP 129
categorically states that "[t]he period for appeal from final orders, resolutions, awards, judgments, or
decisions of any court in all casesshall be fifteen (15) days counted from the notice of the final
order, resolution, award, judgment, or decision appealed from." Ubi lex non distinguit nec nos
distinguere debemos. When the law makes no distinction, we (this Court) also ought not to
recognize any distinction.17
Second, the provisions of Section 3 of Rule 41 of the 1997 Rules of Civil Procedure and Section 6 of
Rule 122 of the Revised Rules of Criminal Procedure, though differently worded, mean exactly the
same. There is no substantial difference between the two provisions insofar as legal results are
concerned the appeal period stops running upon the filing of a motion for new trial or
reconsideration and starts to run again upon receipt of the order denying said motion for new trial or
reconsideration. It was this situation that Neypes addressed in civil cases. No reason exists why this
situation in criminal cases cannot be similarly addressed.
Third, while the Court did not consider in Neypes the ordinary appeal period in criminal cases under
Section 6, Rule 122 of the Revised Rules of Criminal Procedure since it involved a purely civil case,
it did include Rule 42 of the 1997 Rules of Civil Procedure on petitions for review from the RTCs to
the Court of Appeals (CA), and Rule 45 of the 1997 Rules of Civil Procedure governing appeals by
certiorari to this Court, both of which also apply to appeals in criminal cases, as provided by Section
3 of Rule 122 of the Revised Rules of Criminal Procedure, thus:
SEC. 3. How appeal taken. x x x x
(b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise
of its appellate jurisdiction shall be by petition for review under Rule 42.
xxxx
Except as provided in the last paragraph of section 13, Rule 124, all other appeals to the Supreme
Court shall be by petition for review on certiorari under Rule 45.
Clearly, if the modes of appeal to the CA (in cases where the RTC exercised its appellate
jurisdiction) and to this Court in civil and criminal cases are the same, no cogent reason exists why
the periods to appeal from the RTC (in the exercise of its original jurisdiction) to the CA in civil and
criminal cases under Section 3 of Rule 41 of the 1997 Rules of Civil Procedure and Section 6 of
Rule 122 of the Revised Rules of Criminal Procedure should be treated differently.

Were we to strictly interpret the "fresh period rule" in Neypes and make it applicable only to the
period to appeal in civil cases, we shall effectively foster and encourage an absurd situation where a
litigant in a civil case will have a better right to appeal than an accused in a criminal case a
situation that gives undue favor to civil litigants and unjustly discriminates against the accusedappellants. It suggests a double standard of treatment when we favor a situation where property
interests are at stake, as against a situation where liberty stands to be prejudiced. We must
emphatically reject this double and unequal standard for being contrary to reason. Over time, courts
have recognized with almost pedantic adherence that what is contrary to reason is not allowed in law
Quod est inconveniens, aut contra rationem non permissum est in lege. 18
Thus, we agree with the OSGs view that if a delay in the filing of an appeal may be excused on
grounds of substantial justice in civil actions, with more reason should the same treatment be
accorded to the accused in seeking the review on appeal of a criminal case where no less than the
liberty of the accused is at stake. The concern and the protection we must extend to matters of
liberty cannot be overstated.
1avvphi1

In light of these legal realities, we hold that the petitioner seasonably filed her notice of appeal on
November 16, 2005, within the fresh period of 15 days, counted from November 3, 2005, the date of
receipt of notice denying her motion for new trial.
WHEREFORE, the petition for prohibition is hereby GRANTED. Respondent Judge Rosa SamsonTatad isDIRECTED to CEASE and DESIST from further exercising jurisdiction over the prosecutions
motions to dismiss appeal and for execution of the decision. The respondent Judge is
also DIRECTED to give due course to the petitioners appeal in Criminal Case No. Q-01-105698,
and to elevate the records of the case to the Court of Appeals for review of the appealed decision on
the merits.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 193217

February 26, 2014

CORAZON MACAPAGAL, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the Regional
Trial Court (RTC) Decision dated November 25, 2008 convicting petitioner Corazon Macapagal of
the crime of Estafa; the Order denying her Motion for Reconsideration and/or New Trial; and the
Order dated June 29, 2010 denying her Notice of Appeal, in Criminal Case No. 98-166722.
1

For a proper perspective, a brief statement of the factual and procedural antecedents of the case
follows:

On November 25, 2008, the RTC rendered a decision finding petitioner guilty of the crime of Estafa
for misappropriating, for her own benefit, the total amount of P800,000.00, which is the value of the
unreturned and unsold pieces of jewelry. Petitioner received the decision on
6

January 13, 2009 then she timely moved for reconsideration, but was likewise denied in an Order
dated May 20, 2009 which the petitioner allegedly received on July 31, 2009. She supposedly filed a
Notice of Appeal on August 3, 2009, but the same was denied on June 29, 2010 for having been
filed out of time.
7

Aggrieved, petitioner comes directly before the Court in this petition for review on certiorari with the
following assignment of errors:
I.
THE REGIONAL TRIAL COURT OF MANILA, BRANCH 9, GRAVELY ERRED IN DENYING
THE NOTICE OF APPEAL FILED BY THE HEREIN PETITIONER-APPELLANT.
II.
THE REGIONAL TRIAL COURT OF MANILA, BRANCH 9, GRAVELY ERRED IN
CONVICTING THE HEREIN PETITIONER-APPELLANT OF THE CRIME OF ESTAFA.
III.
THE REGIONAL TRIAL COURT OF MANILA, BRANCH 9, GRAVELY ERRED IN DENYING
THE MOTION FOR RECONSIDERATION AND/OR NEW TRIAL FILED BY THE HEREIN
PETITIONER-APPELLANT.
9

We deny the petition.

At the outset, the Court notes that the instant case suffers from various procedural infirmities which
this Court cannot ignore and are fatal to petitioners cause. It appears that petitioner assails not only
the denial by the RTC of her notice of appeal but likewise seeks the reversal of her conviction for
estafa. For reasons that will be discussed below, the petition is bound to fail, because of petitioners
complete disregard of the procedural rules and the orders of the Court.
First, petitioner availed of the wrong mode of assailing the trial courts denial of her notice of appeal.
Sections 2 and 3, Rule 122 of the Revised Rules of Criminal Procedure lay down the rules on where,
how and when appeal is taken, to wit:
SEC. 2. Where to appeal. The appeal may be taken as follows:
xxxx
(b) To the Court of Appeals or to the Supreme Court in the proper cases provided by law, in cases
decided by the Regional Trial Court; and
xxxx

SEC. 3. How appeal taken. (a) The appeal to the Regional Trial Court or to the Court of Appeals in
cases decided by the Regional Trial Court in the exercise of its original jurisdiction, shall be taken by
filing a notice of appeal filed with the court which rendered the judgment or final order appealed from
and by serving a copy thereof upon the adverse party.
SEC. 6. When appeal to be taken. An appeal must be taken within fifteen days from promulgation
of the judgment or from notice of the final order appealed from x x x.
Consequently, the disallowance of the notice of appeal signifies the disallowance of the appeal
itself. A petition for review under Rule 45 of the Rules of Court is a mode of appeal of a lower
courts decision or final order direct to the Supreme Court. However, the questioned Order denying
her notice of appeal is not a decision or final order from which an appeal may be taken. The Rules
of Court specifically provides that no appeal shall be taken from an order disallowing or dismissing
an appeal. Rather, the aggrieved party can elevate the matter through a special civil action under
Rule 65. Thus, in availing of the wrong mode of appeal in this petition under Rule 45 instead of the
appropriate remedy of Rule 65, the petition merits an outright dismissal.
10

11

12

The Court has often admonished litigants for unnecessarily burdening it with the task of determining
under which rule a petition should fall. It has likewise warned lawyers to follow the requisites for
appeal prescribed by law, ever aware that any error or imprecision in compliance may well be fatal to
the clients cause.
13

Second, even if we treat this petition as one for certiorari under Rule 65, it is still dismissible for
violation of the hierarchy of courts. Although the Supreme Court has concurrent jurisdiction with the
RTC and the CA to issue writs of certiorari, this should not be taken as granting parties the absolute
and unrestrained freedom of choice of the court to which an application will be directed. Direct
resort to this Court is allowed only if there are special, important and compelling reasons clearly and
specifically spelled out in the petition, which are not present in this case.
14

15

16

Third, even if we ignore the above non-compliance and consider the petition as an appeal of the trial
courts decision convicting her of estafa, again, we cannot do so for yet another fatal procedural
shortcoming committed by petitioner. As stated earlier, petitioner elevated to this Court not only the
Order denying her notice of appeal but also the Decision convicting her of estafa and the Order
denying her motion for reconsideration. In utter disregard of the rules of procedure, petitioner
attached to the petition only the June 29, 2010 RTC Order denying her notice of appeal but she
failed to attach a clearly legible duplicate original or a certified true copy of the assailed decision
convicting her of estafa and the order denying her motion for reconsideration. A petition for review
on certiorari under Rule 45 of the Rules of Court must contain a certified true copy or duplicate
original of the assailed decision, final order or judgment. Failure to comply with such requirement
shall be sufficient ground for the dismissal of the petition.
17

18

19

The main reason for the prescribed attachments is to facilitate the review and evaluation of the
petition by making readily available to the Court all the orders, resolutions, decisions, pleadings,
transcripts, documents, and pieces of evidence that are material and relevant to the issues
presented in the petition without relying on the case records of the lower court.
20

Lastly, this petition is bound to fail because of petitioners repeated disregard of the Rules and the
Courts lawful orders. In a Resolution dated September 15, 2010, the Court required petitioner to
fully comply with the Rules of Court, the pertinent portion of which reads:
21

1avvphi1

xxxx
2. petitioner to FULLY COMPLY with the Rules by submitting: (a) an affidavit of service on the RTC
and on the Office of the Solicitor General; (b) a proper verification in accordance with Section 1, Rule
45 in relation to Section 4, Rule 7 of the Rules, and a valid certification of non-forum shopping in
accordance with Section 5, Rule 7, with properly accomplished jurat showing that the affiant
exhibited before the notary public at least one current identification document issued by an official
agency bearing the photograph and signature of the affiant as required under Sections 6 and 12,
Rule II of the 2004 Rules on Notarial Practice, as amended by Court En Banc Resolution dated 19
February 2008 in A.M. No. 02-8-13-SC; and (c) her counsels contact details pursuant to the En
Banc Resolution dated 10 July 2007 in A.M. No. 07-6-5-SC, all within five (5) days from notice. x x x
22

Despite the directive, no such compliance was made prompting the Court to require her counsel to
show cause why he should not be disciplinary dealt with for non-compliance. Records likewise show
that petitioner also failed to file a Reply to respondents Comment to the petition.
On August 2, 2011, petitioners counsel submitted his explanation for non-compliance and asked for
more time within which to comply with the Courts resolution, because of heavy workload and his
failure to contact petitioner who apparently transferred residence. In a Resolution dated
23

August 31, 2011, the Court, while granting the motion for extension requested, admonished
petitioners counsel for the unsatisfactory explanation. Yet again, petitioner failed to file the required
Reply prompting the Court again to ask for the counsels explanation why he should not be
disciplinary dealt with. Petitioners counsel claimed that he could not prepare the required reply
because the documents needed had been destroyed by typhoon "Pedring." He, likewise, pointed out
that he exerted earnest efforts to locate petitioner but he could not do so at that point. After the
Court required him again to show cause why he should not be disciplinary dealt with for not
complying with the Courts resolutions, and since his efforts to communicate with his client proved
futile, he asked the Court that he be relieved of all his duties and responsibilities as counsel on
record. In a Resolution dated December 10, 2012, we required petitioner herself to comment
thereon, but no such compliance was made to date.
24

25

26

1wphi1

Indeed, cases should be determined on the merits after full opportunity to all parties for ventilation of
their causes and defenses, rather than on technicality or some procedural imperfections in order to
serve better the ends of justice. It is the duty of the counsel to make sure of the nature of the errors
he proposes to assign, to determine which court has appellate jurisdiction, and to follow the
requisites for appeal. Any error in compliance may be fatal to the client's cause. It should be
stressed that the right to appeal is neither a natural right nor a part of due process. It is merely a
procedural remedy of statutory origin and may be exercised only in the manner prescribed by the
provisions of law authorizing its exercise. The requirements of the rules on appeal cannot be
considered as merely harmless and trivial technicalities that can be discarded at whim. In these
times when court dockets are clogged with numerous litigations, parties have to abide by these rules
with greater fidelity in order to facilitate the orderly and expeditious disposition of cases.
27

28

29

30

31

WHEREFORE, premises considered, the petition is DENIED for lack of merit.

SO ORDERED.

G.R. No. 198753

JOSE "PEPE" SANICO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES AND JENNIFER SON-TENIO, Respondents.
DECISION
BERSAMIN, J.:
The dismissal by the Regional Trial Court (RTC) of an appeal by an accused on the ground of his
failure to submit his memorandum on appeal should be nullified because the pertinent rule of
procedure governing the appeal specifies such submission as optional on his part, and commands
the resolution of the appeal by the RTC on the basis of the records of the trial court and of any
memoranda of appeal as the parties may file in the case.
The Case
This appeal directly assails the resolution promulgated on April 14, 2011 in C.A.-G.R. CR UDK No.
0019 entitledPeople of the Philippines v. Jose "Pepe" Sanico, et al., whereby the Court of Appeals
(CA) dismissed the petitioner's petition to review and undo the dismissal of his appeal by the RTC;
and the subsequent resolution promulgated on September 15, 2011, denying his motion for
reconsideration.
1

Antecedents
The petitioner and Marsito Batiquin were criminally charged for trespassing (Criminal Case No.
3433-CR) and theft of minerals (Criminal Case No. 3434-CR) in the Municipal Circuit Trial Court of
Catmon-Carmen- Sogod, Cebu (MCTC). In due course, the MCTC rendered its judgment on April 2,
2009, convicting the accused, disposing as follows:
WHEREFORE, and in view of the foregoing judgment is hereby rendered in Criminal Case No.
3434-CR finding the accused Jose "Pepe" Sanico and Marsito Batiquin guilty beyond reasonable
doubt for Violation of Section 103 of Republic Act No. 7942 otherwise known as the Philippine Mining
Act of 1995, and they are hereby both sentenced to suffer an imprisonment of Six (6) Months and
One (1) Day of Prision Correccional, as minimum, to Two (2) Years Four (4) Months and One (1) day
of Prision Correccional, as maximum, and to pay a fine of Ten Thousand Pesos (P10,000.00) each,
with subsidiary imprisonment in case of insolvency.
The truck with Plate No.GAX-119, as an instrument of the crime is hereby ordered confiscated in
favour of the government.
In addition, both accused are hereby ordered to solidarily pay private complainant Jennifer S. Tenio
actual damages in the amount of Four Million Forty Two Thousand and Five Hundred Pesos
(P4,042,500.00), Moral damages in the amount of Five Hundred Thousand Pesos (P500,000.00),
Exemplary Damages in the amount of Two Hundred Thousand Pesos (P200,000.00), Attorneys
Fees in the amount of One Hundred Thousand Pesos (P100,000.00) and Litigation Expenses in the
amount of Fifty Thousand Pesos (P50,000.00).

In Criminal Case No. 3433-CR Trespassing, the Court finds accused Jose "Pepe" Sanico and
Marsito Batiquin not guilty for failure of the prosecution to prove the guilt of the accused beyond
reasonable doubt.
SO ORDERED.

On April 22, 2009, Sanicos counsel filed a notice of appeal in the MCTC. Consequently, on January
5, 2010, the RTC, Branch 25, in Danao City ordered Sanico to file his memorandum on appeal.
Sanico did not comply; hence, the RTC ruled on March 16, 2010, as follows:
4

The motion of plaintiff is impressed with merit. The failure of the accused-appellants to file
Memorandum on Appeal is a ground for dismissal of the Appeal.
WHEREFORE, the appeal of the accused is ordered dismissed with prejudice.
SO ORDERED.

On April 26, 2010, one Atty. Dennis Caete, another lawyer acting for Sanico, filed a motion for
reconsideration vis--vis the dismissal of the appeal, stating that Sanico had not filed the
memorandum on appeal because he had been beset with problems due to his wifes debilitating
illness which eventually claimed her life, as well as his counsel, Atty. Barings own medical condition
which caused her to forget how she got this case and whom to contact as principal counsel hereof.
7

On June 1, 2010, the RTC denied the motion for reconsideration because of its lack of verification
and affidavit of merit; and because the supposed sickness of Sanicos wife and the lapses of Atty.
Baring were not justifiable reasons.
8

On June 23, 2010, Sanico, through Atty. Caete, filed a petition for review in the CA, contesting his
conviction, and assailing the dismissal of his appeal for failure to file the memorandum on appeal.
9

10

On April 14, 2011, the CA denied the petition for review on the following grounds, namely: (a) the
docket fees were not paid; (b) there was no proper proof of service of a copy of the petition for
review on the adverse party; (c) the petitioner did not furnish to the RTC a copy of the petition for
review; (d) there was no affidavit of service; (e) no written explanation for not resorting to personal
filing was filed; (f) the documents appended to the petition were only plain photocopies of the
certified true copies; (g) no copies of pleadings and other material portions of the record were
attached; (h) the verification and certification of non-forum shopping were defective due to failure to
contain a statement that the allegations therein were based on the petitioners personal knowledge;
(i) the verification and certification of non-forum shopping did not contain competent evidence of
identity of the petitioner; and (j) the serial number of the commission of the notary public and the
office address of the notary public were not properly indicated.
11

The petitioner moved for reconsideration, but his motion was denied on September 15, 2011, with
the CA holding:
12

Jurisprudence is replete with pronouncements in regard to the mandatory and jurisdictional nature of
the legal requirement to pay docket and appeal fees. Without such payment, the appellate court
does not acquire jurisdiction over the subject matter of the action and the decision sought to be

appealed from becomes final and executor. Further, the other infirmities of the Petition, insofar as the
lack of proper proof of service and failure to append material portions of the record, necessarily
warrant the dismissal of the Petition, given the mandatory language of Section 3, Rule 42 of the
1997 Rules of Civil Procedure.
xxxx
Petitioner invoked that it could not be bound by the gross and inexcusable negligence of his
counsels. However, a client is generally bound by the acts, even mistakes, of his counsel in the
realm of procedural technique. In cases where the negligence of counsel is so gross, reckless and
inexcusable that the client is deprived of his day in court, the appropriate recourse is provided under
the Rules: x x x.
WHEREFORE, in view of the foregoing premises, appellants Motion for Reconsideration with
Application for Temporary Restraining Order and Preliminary injunction dated 31 May 2011 is hereby
DENIED.
SO ORDERED.

13

In the meantime, the counsel for respondent Jennifer S. Tenio filed an Ex Parte Motion for Entry of
Judgment, which the RTC authorized the issuance of on March 28, 2011. Thence, Sanico filed an
omnibus motion to recall the order and to quash the entry of judgment, but the RTC denied the
omnibus motion on August 22, 2011, noting that Sanico did not provide the RTC with a copy of his
petition for review; hence, the RTC had no way of knowing about the pendency of his petition for
review in the CA; and that in any case, the CA had already denied his petition for review, while his
motion for reconsideration had yet to be acted upon by the CA. Sanicos motion for reconsideration
was denied by the RTC on October 3, 2011.
14

15

16

17

The records show that the entry of judgment was issued on March 30, 2011, and the writ of
execution on April 19, 2011; and that execution sales covering several personal properties of the
petitioner were made on June 14 and June 16, 2011, and the certificates of sale were issued in favor
of Tenio.
18

19

20

Issues
Hence, this appeal by petition for review on certiorari.
The petitioner contends that the CA erred in holding against him his former counsels gross and
inexcusable negligence, thereby depriving him of his right to have the conviction reviewed by the
RTC; that the CA committed reversible error in not nullifying the RTCs order dismissing the appeal
for failure to file a memorandum, and in not nullifying the entry of judgment issued by the RTC
despite the pendency of the petition for review in the CA; and that the CA further erred in not
remanding the case to the RTC for the review of the legal infirmities committed by the MCTC in
rendering its judgment of conviction.
21

In her comment, Tenio avers that the appeal seeks to evaluate, assess and examine the findings of
the lower courts, which cannot be done in this appeal; and that the petitioner already lost all his
opportunities to contest the decision and orders by which he was aggrieved through the usual
process by not complying with the requirements under the Rules of Court to submit his appeal
22

memorandum to the RTC, and by filing a petition for review that was plagued with congenital
infirmities.
23

The State, through the Office of the Solicitor General (OSG), submits that the CA did not err in
dismissing the petition for review for failure to comply with procedural requirements; that the
petitioner was bound by the mistakes of his counsel in the realm of procedural technique; that there
was no compelling reason to warrant the relaxation of the rules of procedure in favor of the petitioner
because, firstly, the dismissal of his appeal was in accord with Section 7, Rule 40 of the Rules of
Court; secondly, the decisions of the RTC rendered in the exercise of its appellate jurisdiction were
immediately executory without prejudice to an appeal; thirdly, the MCTC validly acquired jurisdiction
over the criminal case; and, finally, the variance in the mode of commission of the offense was
binding on the accused if he did not object to the evidence showing that the crime was committed in
a manner different from what was alleged.
24

25

Ruling of the Court

The appeal is meritorious.
To start with, the RTC was guilty of the prejudicial error of misapplying the Rules of Court in its
dismissal of the appeal timely made by the petitioner. In dismissing the appeal for the sole reason
that he did not file the memorandum on appeal, the RTC wrongly relied on Section 7, Rule 40 of
the Rules of Court, which authorizes the dismissal of the appeal once the appellant fails to file the
memorandum on appeal, viz.:
Section 7. Procedure in the Regional Trial Court.
(a)Upon receipt of the complete record or the record on appeal, the clerk of court of the
Regional Trial Court shall notify the parties of such fact.
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(b)Within fifteen (15) days from such notice, it shall be the duty of the appellant to submit a
memorandum which shall briefly discuss the errors imputed to the lower court, a copy of
which shall be furnished by him to the adverse party. Within fifteen (15) days from receipt of
the appellants memorandum, the appellee may file his memorandum. Failure of the
appellant to file a memorandum shall be a ground for dismissal of the appeal.
(c)Upon the filing of the memorandum of the appellee, or the expiration of the period to do
so, the case shall be considered submitted for decision. The Regional Trial Court shall
decide the case on the basis of the entire record of the proceedings had in the court of origin
and such memoranda as are filed.
The RTC thereby ignored Rule 122 of the Rules of Court, which specifically governed appeals in
criminal cases. The relevant portions of Rule 122 are the following:
Section 3. How appeal taken.
(a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original jurisdiction, shall be taken by filing a notice of

appeal with the court which rendered the judgment or final order appealed from and by
serving a copy thereof upon the adverse party.
xxxx
Section 8. Transmission of papers to appellate court upon appeal.Within five (5) days from the
filing of the notice of appeal, the clerk of the court with whom the notice of appeal was filed must
transmit to the clerk of court of the appellate court the complete record of the case, together with
said notice. The original and three copies of the transcript of stenographic notes, together with the
records, shall also be transmitted to the clerk of the appellate court without undue delay. The other
copy of the transcript shall remain in the lower court. (8a)
Section 9. Appeal to the Regional Trial Courts.
(a)Within five (5) days from perfection of the appeal, the clerk of court shall transmit the
original record to the appropriate Regional Trial Court.
(b)Upon receipt of the complete record of the case, transcripts and exhibits, the clerk of court
of the Regional Trial Court shall notify the parties of such fact.
(c)Within fifteen (15) days from receipt of said notice, the parties may submit memoranda
or briefs, or may be required by the Regional Trial Court to do so. After the
submission of such memoranda or briefs, or upon the expiration of the period to file
the same, the Regional Trial Court shall decide the case on the basis of the entire
record of the case and of such memoranda or briefs as may have been filed. (9a)
(Emphasis supplied)
The failure to file the memorandum on appeal is a ground for the RTC to dismiss the appeal only in
civil cases. The same rule does not apply in criminal cases, because Section 9(c), supra, imposes
on the RTC the duty to decide the appeal "on the basis of the entire record of the case and of such
memoranda or briefs as may have been filed" upon the submission of the appellate memoranda or
briefs, or upon the expiration of the period to file the same. Hence, the dismissal of the petitioners
appeal cannot be properly premised on the failure to file the memorandum on appeal.
Having timely perfected his appeal by filing the notice of appeal in the MCTC, the petitioner was
entitled to expect that the RTC would resolve his appeal in due course, whether he filed his
memorandum on appeal or not. The unwarranted dismissal of the appeal by the RTC was, therefore,
an outright denial of due process to him in a manner that occasioned severe prejudice because his
conviction was not reviewed despite his first-time appeal being a matter of right, and because his
conviction was then declared to have attained finality, causing the execution of the decision as to its
civil aspect.
We are appalled that the CA turned a blind eye to the egregious error of the RTC by limiting its
attention to the supposedly patent defects and shortcomings of the petitioners petition for review.
The foremost noted defect was the non-payment of the docket fees, which, in other
circumstances, would have alone warranted the outright rejection of the petition for review due to the
mandatory and jurisdictional character of the payment of the full amount of docket fees within the
prescribed period.
26

Such payment was the condition sine qua non for the perfection of the appeal by petition for review,
and only by such payment could the CA have acquired jurisdiction over the appeal. But the appeal
of the conviction before the RTC had not yet been completed, and, as such, the petition for review of
the petitioner was logically premature. In other words, it was plain to the CA that it could not validly
act on the petition for review. To insist otherwise would be unjust against the petitioner, considering
that the wrong turn in procedure that had generated the whole problem had been caused by the
RTC.
27

The parties have argued on whether or not the negligence of the petitioners counsel should be
binding on the petitioner. In our view, however, we do not need to belabor the point with a lengthy
discussion. Without doubt, the petitioner could reasonably expect that his counsel would afford to
him competent legal representation. The mere failure of the counsel to observe a modicum of care
and vigilance in the protection of the interests of the petitioner as the client as manifested in the
multiple defects and shortcomings discovered in the petition for review was gross negligence in
any language because the defects were plainly avoidable by the simple application of the relevant
guidelines existing in the Rules of Court. If the incompetence of counsel was so great and the error
committed as a result was so serious that the client was prejudiced by a denial of his day in court,
the litigation ought to be re-opened to give to the client another chance to present his case. The
legitimate interests of the petitioner, particularly the right to have his conviction reviewed by the RTC
as the superior tribunal, should not be sacrificed in the altar of technicalities.
The Court notes that the petitioner has raised several issues against the award of damages in favor
of Tenio. We defer from making any findings on such issues at this stage, however, because the
logical outcome is to remand the case to the RTC for appellate review as if the appeal was filed on
time, which it was. Meanwhile, the petitioner is entitled to be restored to his situation at the time
when the RTC wrongly dismissed his appeal. The RTC should quash the execution enforced against
him; order the restitution of whatever properties were levied and sold on execution; and assiduously
review the conviction.
28

Finally, it behooves the Court to remind all lower courts and their judges to be alert in safeguarding
the right of the parties to appeal. Although the right to appeal is statutory, it must be respected and
observed because it is an essential component of due process. What happened herein was the
uncharacteristic oversight of the RTC in the application of the proper governing rules. There should
have been no difficulty to discern the applicable rules, given the clear distinction between the civil
and the criminal procedures. The alertness could have avoided the oversight, and prevented the
waste of timetheby petitioner who had to come all the way to this Court to safeguard his right to
appeal.
WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES and SETS
ASIDE the resolutions promulgated on April 14, 2011 and September 15, 2011 by the Court of
Appeals in C.A.- G.R. CR UDK No. 0019 entitled People v. Jose "Pepe: Sanico, et al. respectively
dismissing the petitioner's petition for review assailing the dismissal of his appeal by the Regional
Trial Court, and denying his motion for reconsideration;ANNULS and SETS ASIDE the orders issued
on March 16, 2010, June 1, 2010, and August 22, 2011 by the Regional Trial 25,Court, Branch in
Danao City respectively dismissing his appeal, denying his motion for reconsideration, and denying
his omnibus motion to recall the order issued on March 28, 2011 for the issuance of the entry of
judgment and to quash the entry of judgment; QUASHES and VACATES the entry of judgment
dated March 30, 2011 for lack of legal basis; NULLIFIES all acts taken by virtue of the entry of

judgment; REMANDS the records to the Regional Trial Court for further proceedings as outlined in
this decision; and ORDERS the private respondent to pay the costs of suit.
SO ORDERED.
G.R. No. 197832

October 2, 2013

ANITA RAMIREZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
RESOLUTION
REYES, J.:
In this petition for review on certiorari1 under Rule 45 of the Rules of Court, petitioner Anita Ramirez
(petitioner) seeks the reversal of the Court of Appeals (CA) Resolutions dated January 31, 20112 and
June 30, 20113 in CA-G.R. CR No. 33099, denying her "Most Deferential Omnibus Motion to Admit
Notice of Appeal and Post Bond on Appeal".
The facts
On January 5, 2009, the Regional Trial Court (RTC) of Quezon City, Branch 97 convicted the
petitioner and one Josephine Barangan (Barangan) of the crime of Estafa in Criminal Case No. Q01-100212.After several re-settings, the judgment was finally promulgated on March 25, 2009 and
warrants of arrests were accordingly issued. According to the petitioner, she failed to attend the
promulgation of judgment as she had to attend to the wake of her father.4
Three (3) months after, or on June 6, 2009, the petitioner filed an Urgent Ex-parte Motion to Lift
Warrant of Arrest and to Reinstate Bail Bond, which was denied by the RTC in its Order dated
October 7, 2009.5
Aggrieved, the petitioner filed the motion to admit notice of appeal and to post bond with the CA,
asking for the reversal of the RTC Order dated October 7, 2009. She subsequently filed her notice of
appeal on November 17, 2010.6 The OSG, for its part, did not oppose the petitioners belated filing of
the notice of appeal but objected to her application for the posting of a bond pending appeal. 7
In Resolution8 dated January 31, 2011, the CA denied the omnibus motion. The petitioner filed a
motion for reconsideration, which was denied by the CA in Resolution 9 dated June 30, 2011. In
denying the omnibus motion, the CA ruled that the petitioner failed to file the notice of appeal within
the 15-day reglementary period prescribed by the Rules, reckoned from the date of notice of the
RTCs judgment of conviction, as she filed her notice of appeal with the CA only on November 17,
2010. The CA opined that as early as June 10, 2009, the petitioner was already aware of the RTC
judgment; however, she opted to file a motion to lift the warrant of arrest. As such, the judgment of
conviction against her has attained finality. The CA also opined that since the petitioner knew she
could not attend the promulgation of judgment on March 25, 2009, she should have exerted earnest
efforts to confer with her counsel to request for its re-setting. Failing to do so, the CA considered her

absence without justifiable cause a blatant disrespect of the judicial process. 10 Thus, the CA denied
her application for provisional liberty in view of the finality of the judgment of conviction against her.
Hence, this petition.
The petitioner wants the Court to take note of the fact that the OSG did not object to the belated
filing of her notice of appeal with the CA. The petitioner also attributes such lapse to her counsel
whom she expected to take care of her legal concerns. She claims that her counsel did not apprise
her of the status of the case and that it would have been unforgivable for her not to pay her last
respects to her deceased father. She also maintains that since the CA would also be reviewing
Barangans appeal, it would serve the interest of substantial justice if the CA were to admit the
petitioners appeal. She also seeks the application of the exceptional cases where the Court
admitted a belated appeal.11
In its Comment,12 the OSG contends that the petitioner is bound by the negligence of her counsel. It
also manifests that while it did not object to her appeal being heard by the CA, it is now withdrawing
such position given the petitioners continued refusal to submit to the jurisdiction of the RTC despite
the CAs denial of her omnibus motion.
The petition is devoid of merit.
Section 6, Rule 122 of the Revised Rules of Criminal Procedure provides for the period when an
appeal from a judgment or final order in a criminal case should be taken, viz:
Sec. 6. When appeal to be taken. An appeal must be taken within fifteen (15) days from
promulgation of the judgment or from notice of the final order appealed from. This period for
perfecting an appeal shall be suspended from the time a motion for new trial or reconsideration is
filed until notice of the order overruling the motions has been served upon the accused or his
counsel at which time the balance of the period begins to run.
In this case, the judgment convicting the petitioner of the crime of Estafa was promulgated on March
25, 2009. Instead of filing a notice of appeal within fifteen (15) days from the promulgation or notice
of judgment, the petitioner filed with the RTC a motion to lift warrant of arrest and to reinstate bail
bond three (3) months later. It was only in November 2010 or more than a year later since the RTC
denied her motion that the petitioner filed with the CA her motion to admit notice of appeal. At that
point, her judgment of conviction has already attained finality and cannot be modified or set aside
anymore in accordance with Section 7, Rule 120 of the Revised Rules of Criminal Procedure. 13 Thus,
the CA did not commit any reversible error in denying the petitioners motion inasmuch as by the
time the petitioner filed the same, the appellate court was already bereft of any jurisdiction to
entertain the motion. The Court has already stressed that "the right to appeal is not a natural right
and is not part of due process. It is merely a statutory privilege, and may be exercised only in
accordance with the law. The party who seeks to avail of the same must comply with the
requirements of the Rules. Failing to do so, the right to appeal is lost." 14
In exceptional cases, the Court has in fact relaxed the period for perfecting an appeal on grounds of
substantial justice or when there are other special and meritorious circumstances and issues. 15 Thus,
in Remulla v. Manlongat,16 the Court considered the one-day late filing of the prosecutions notice of
appeal as excusable given the diligent efforts exerted by the private prosecutor in following up its
filing with the public prosecutor.
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The petitioner, however, failed to present any exceptional, special or meritorious circumstance that
will excuse the belated filing of her notice of appeal. As correctly ruled by the CA, her assertion that
her counsel on record failed to communicate to her the status of her case is a "tenuous and
implausible" excuse.17 The rule is that the omission or negligence of counsel binds the client. This is
truer if the client did not make a periodic check on the progress of her case. 18 In this case, aside from
heaving the fault entirely on her counsel, the petitioner did not even attempt to show that she
exercised diligent efforts in making sure that she is brought up to date as regards the status of her
case or the steps being taken by her counsel in the defense of her case.
Moreover, the petitioner should have seen to it that, at the very least, communication was sent to the
trial court to inform the presiding judge of the demise of her father and that she could not be present
during the promulgation of judgment as she had to attend to his funeral arrangements; or, as stated
by the CA, "she should have filed a motion for the resetting of the promulgation to another date." 19 In
Neplum, Inc. v. Orbeso,20 the Court affirmed the lower courts refusal to give due course to the notice
of appeal filed by the petitioner therein, stating that "all that petitioner had to do was to file a simple
notice of appeal a brief statement of its intention to elevate the trial courts Decision to the CA. x x
x Parties and their counsels are presumed to be vigilant in protecting their interests and must take
the necessary remedies without delay and without resort to technicalities." 21
While the Court commiserates with the petitioner's loss, "'the bare invocation of 'the interest of
substantial justice' is not a magic wand that will automatically compel this Court to suspend
procedural rules."22 Strict compliance with the Rules of Court is indispensable for the orderly and
speedy disposition of justice. The Rules must be followed; otherwise, they will become meaningless
and useless.23
WHEREFORE, the petition is DENIED for lack of merit.
SO ORDERED.
G.R. No. 197731

July 6, 2015

HERMIE OLARTE y TARUG and RUBEN OLAV ARIO y MAUNAO, Petitioners,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
RESOLUTION
DEL CASTILLO, J.:
Petitioners Hermie Olarte y Tarug (Olarte) and Ruben Olavario y Maunao (Olavario), together with
Salvador Pasquiny Marco (Pasquin), were charged with the crime of frustrated homicide in an
Information that reads as follows:
That on or about September 15, 2002 in Valenzuela City and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring together and mutually helping one another, without any
justifiable cause and with deliberate intent to kill, did then and there willfully, unlawfully and
feloniously stab one EUGENE VILLOSTAS y MARTINEZ, thus performing all the acts of execution
which would constitute the crime of Homicide as a consequence but which nevertheless, did not

produce it by reason or causes independent of the will of the herein accused, that is, due to the
timely, able and efficient medical attendance rendered to the victim. CONIRARYTO LAW.
1

All the three accused posted bail. But since Pasquin jumped bail, only petitioners were arraigned on
June 25, 2003 where they pleaded not guilty to the crime charged. Trial thereafter ensued.
2

The prosecution averred that in the early morning of September 15, 2002, the victim Eugene M.
Villostas (Villostas) was fetched by his half-brother, Charlie Penilla (Penilla), from a drinking session.
On their way home, Villostas decided to buy cigarettes from a nearby videoke bar at Gen. T. de
Leon, Valenzuela City. Inside the bar, however, three men who belonged to a group then singing and
drinking suddenly stabbed him on different parts of his body. They only stopped when bystanders
started throwing stones at them. This whole incident was witnessed by Penilla who was then only
seven to eight arms length away from the crime scene.
Barangay tanods immediately responded and brought the malefactors to the Barangay Hall where
they were later identified as petitioners and their co-accused Pasquin. Meanwhile, Villostas was
rushed to the Valenzuela General Hospital where he was treated by Dr. Jolou A. Pascual (Dr.
Pascual).
During trial, Dr. Pascual testified that Villostas sustained multiple stab wounds described as follows:
Multiple Stab Wound
5cm 4th ICS anterior axillary, left 3.5 cm 5th ICS
5cm curvilinear subcostal mid axillary, right
2cm anterior shoulder, left
4cm anterior shoulder, left

According to him, all these wounds could have caused Villostas death were it not for the timely
medical attention given him.
5

The defense, on the other hand, alleged that at around 2:00 o clock in the morning of September 15,
2002, while petitioners, Pasquin and some other companions were having a drinking spree inside a
videoke bar on Gen. T. De Leon, Valenzuela City, several persons threw stones at them hitting
Olarte and another companion. Their group thus disbanded. While most of them headed straight
home, Olarte, together with a certain Joni, went to the Barangay Hall to have the stoning incident
entered in its blotter. Upon arrival thereat, however, they were surprised that Olarte, Olavario and
Pasquin were being implicated in a stabbing incident. The three were then brought to the Valenzuela
General Hospital where Villostas identified them as his assailants. Thereafter, they were arrested
and detained at the city jail.
On April 27, 2009, the Regional Trial Court (RTC) of Valenzuela City, Branch 172, rendered its
Decision finding petitioners guilty as charged, viz.:
6

WHEREFORE, judgment is hereby rendered finding Hermie Olarte y Tarug and Ruben Olavario y
Maunao guilty beyond reasonable doubt as PRINCIPALS [in] the crime of FRUSTRATED
HOMICIDE and [are] hereby sentenced x x x to suffer an imprisonment of two (2) years, 4 (four)
months and one (1) day of prision correccional as minimum to eight (8) years and one (1) day of
prision mayor medium as maximum. They are also ordered to pay jointly and solidarily the victim
Eugene Villostas y Martinez the amount of Php22,462.05 for medical expenses as actual damages,
Php20,000.00 as moral damages and costs of suit.
Since x x x accused Salvador Pasquin y Marco has not yet been arrested and arraigned despite the
issuance of order of arrest on November 8, 2002, let an alias warrant of arrest be issued against
said accused Salvador Pasquin y Marco. Meantime, let the case against him be archived to be
retrieved as soon as he is arrested.
SO ORDERED.

Petitioners filed a Notice of Appeal which was granted by the RTC in its Order of May 13, 2009.
8

Before the Court of Appeals (CA), petitioners questioned the credibility of Villostas and Penilla as
prosecution witnesses. They pointed out inconsistencies in their testimonies respecting the victims
degree of intoxication at the time of the incident, the kind or brand of liquor that he imbibed, and the
length of time that he had been drinking immediately prior thereto. Petitioners argued that such
inconsistencies rendered doubtful their identification as the culprits by said prosecution witnesses.
10

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The CA, in its February 9, 2011 Decision, debunked petitioners arguments as it found the
inconsistencies pointed out by them as relating to mere minor details. On the other hand, it found no
cogent reason to deviate from the findings of the trial court as regards petitioners culpability, thus:
11

WHEREFORE, premises considered, the April 27, 2009 Decision of the Regional Trial Court of
Valenzuela City, Branch 172, in Criminal Case No. 759-V-02, convicting the [petitioners] of the crime
of Frustrated Homicide is AFFIRMED.
SO ORDERED.

12

Petitioners Motion for Reconsideration was likewise denied in a Resolution dated July 13, 2011.
13

14

Hence, this Petition for Review on Certiorari under Rule 45 of the Rules of Court where petitioners
raise the following errors:
15

THE TRIAL COURT ERRED IN NOT ACQUITTING PETITIONERS OF THE CRIME OF

FRUSTRATED HOMICIDE.
THE TRIAL COURT ERRED IN FAILING TO APPRECIATE THE EVIDENCE ON [RECORD] THAT
NEITHER OF THE PETITIONERS WAS THE AUTHOR OF THE CRIME.
16

Petitioners insist that the testimonies of Villostas and Penilla are devoid of credibility as they contain
several inconsistencies. These inconsistencies rendered doubtful the said witnessess identification
of petitioners as the assailants. Petitioners also point out that they themselves went to the authorities
to report the incident. This, according to them, negates their involvement in the crime because had

they been the real perpetrators, they would not dare report the matter to the authorities. Moreover,
they contend that the lower courts failed to properly appreciate the testimony of one Rodel Roque
who categorically stated on the witness stand that he saw Villostas being stabbed by only one
person and that person was neither of the petitioners. In view of these, petitioners pray that the
assailed CA Decision be reversed and set aside and that they be acquitted of the crime charged.
Our Ruling
The Petition must be denied.
Suffice it to state that the errors raised by the petitioners are all "appreciation of evidence" errors or
factual errors which are not within the province of a petition for review on certiorari under Rule 45.
The Court had already explained in Batistis v. People that:
17

Pursuant to Section 3, Rule 122, and Section 9, Rule 45, of the Rules of Court, the review on appeal
of a decision in a criminal case, wherein the CA imposes a penalty other than death, reclusion
perpetua, or life imprisonment, is by petition for review on certiorari.
A petition for review on certiorari raises only questions of law. Sec. 1, Rule 45, Rules of Court,
explicitly so provides, viz[.]:
Section 1. Filing of petition with Supreme Court. A party desiring to appeal by certiorari from a
judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition may include an application for
a writ of preliminary injunction or other provisional remedies and shall raise only questions of law,
which must be distinctly set forth. The petitioner may seek the same provisional remedies by verified
motion filed in the same action or proceeding at any time during its pendency. Here, the assigned
errors, requiring as they do a re-appreciation and reexamination of the trial evidence, are evidentiary
and factual in nature. The petition must therefore be denied on this basis because "one, the petition
for review thereby violates the limitation of the issues to only legal questions, and, two, the Court, not
being a trier of facts, will not disturb the factual findings of the CA, unless they were mistaken,
absurd, speculative, conflicting, tainted with grave abuse of discretion, or contrary to the findings
reached by the court of origin," which was not shown to be the case here.
18

19

20

At any rate, the Court observes that the CA correctly affirmed the RTCs conviction of petitioners for
frustrated homicide. The elements of frustrated homicide are: (1) the accused intended to kill his
victim, as manifested by his use of a deadly weapon in his assault; (2) the victim sustained fatal or
mortal wound/s but did not die because of timely medical assistance; and (3) none of the qualifying
circumstances for murder under Article 248 of the Revised Penal Code exist. These elements were
proved during trial. First, direct and positive testimonies of prosecution witnesses established that
Villostas sustained seven stab wounds on vital parts of his body caused by a pointed sharp object.
Plainly, the nature, location and number of wounds sustained by him demonstrate petitioners intent
to kill. Next, the injuries suffered by Villostas were all fatal. Particularly critical were the 5-centimeter
wound below his left armpit, the 3.5-centimeter wound on the mid-part of his left chest which
required inserting a tube thereon to drain blood so as not to impede his breathing, and the 5centimeter stab wound on the right side of his abdomen which also injured his liver. As testified to
by Dr. Pascual, Villostas would have succumbed to death due to the said injuries if not for the timely
21

22

medical attention. Finally, no qualifying circumstance for murder was alleged in the Information to
have attended the commission of the crime.
The Court, however, notes that while the penalty imposed upon petitioners is also proper, there is a
need to modify the awards made in favor of Villostas. The actual damages awarded by the RTC was
only P22,642.05. Hence, there is a need to award P25,000.00 as temperate damages in lieu of
actual damages in a lesser amount. Also, pursuant to prevailing jurisprudence, the award of moral
damages must be increased fromP20,000.00 to P25,000.00. All these awards shall earn interest at
the legal rate of six percent (6%) per annum to commence from the date of finality of this Resolution
until fully paid.
23

24

25

WHEREFORE, the petition is DENIED. The Decision dated February 9, 2011 of the Court of Appeals
in CA-G.R. CR No. 32640 which affirmed the April 27, 2009 Decision of the Regional Trial Court of
Valenzuela City, Branch 172 in Criminal Case No. 759-V-02 convicting petitioners Hermie Olarte y
Tarug and Ruben Olavario y Maunao of the crime of frustrated homicide is AFFIRMED with the
MODIFICATIONS that the victim Eugene Villostas y Martinez is awarded (1) temperate damages
of P25,000.00 in lieu of actual damages; (2) moral damages in an increased amount of P25,000.00;
and that (3) the said awards shall be subject to interest at the legal rate of six percent (6%) per
annum from the date of finality of this Resolution until fully paid. SO ORDERED.
G.R. Nos. 183152-54

January 21, 2015

REYNALDO H. JAYLO, WILLIAM V ALENZONA and ANTONIO G. HABALO, Petitioners,

vs.
SANDIGANBAYAN (FIRST DIVISION), PEOPLE OF THE PHILIPPINES and HEIRS OF COL.
ROLANDO DE GUZMAN, FRANCO CALANOG and AVELINO MANGUERA, Respondents.
DECISION
SERENO, CJ:
What are the repercussions of the failure of the accused to appear, without justifiable cause, at the
promulgation of a judgment of conviction? With the resolution of this singular issue, the Court writes
finis to the 24-year-old controversy before us.
Assailed in this Petition for Review on Certiorari under Rule 45 of the Rules of Court is the
Decision of the Sandiganbayan finding petitioners guilty beyond reasonable doubt of the crime of
homicide. Petitioners also challenge the Resolution dated 29 November 2007 issued by the same
court, which took no action on the motion for reconsideration filed by petitioners, and the Resolution
dated 26 May 2008 denying the motion for reconsideration of the earlier Resolution.
1

ANTECEDENT FACTS
Petitioners Reynaldo Jaylo (Jaylo), William Valenzona (Valenzona) and Antonio Habalo (Habalo),
together with Edgardo Castro (Castro), were officers of the Philippine National Police Western
Police District placed on special detail with the National Bureau of Investigation (NBI).
4

In June of 1990, the United States Drug Enforcement Agency (US DEA) approached the NBI with
information on the sale of a considerable amount of heroin in the Philippines. Jaylo was assigned by
then NBI Director Alfredo Lim to head the team that would conduct a buy-bust operation with the aid
of US DEA undercover agent Philip Needham (Needham).
From 3 to 8 July 1990, Needham, posing as a member of an international drug syndicate, conducted
negotiations for the purchase of 10 kilos of heroin from Estella Arrastia (Arrastia), Franco Calanog
(Calanog) and Rolando De Guzman (De Guzman).The exchange was scheduled on the evening of
10 July 1990 at the parking lot of the Magallanes Commercial Center.
Needham arrived at the parking lot on board a taxicab with Arrastia and Philip Manila (Manila), an
undercover NBI operative who posed as Needhams bodyguard. The taxicab was driven by Romeo
Noriega (Noriega), another undercover NBI operative.
6

At the parking lot, Needham and Arrastia met Calanog and Avelino Manguera (Manguera), who both
alighted from a blue Volkswagen Beetle; and De Guzman, who alighted from a brown
Saab. Needham approached the Volkswagen and examined the heroin in the backseat. After some
time, he straightened up and walked back towards the taxicab, while executing the prearranged
signal of taking out his handkerchief and blowing his nose.
8

10

It is at this point that the versions of the prosecution and the defense diverged, particularly on the
manner of the arrest.
Version of the Prosecution
On board two vehicles, Jaylo, Castro, Valenzona, Habalo, and at least 15 other operatives, rushed in
and surrounded De Guzman, Calanog, and Manguera.
11

Jaylo pointed his gun at De Guzman. Two other operatives instructed Calanog and Manguera to lie
face down on the ground and placed a foot on their backs while training a gun at them. The rest
cordoned the area.
Later, a car with passengers Needham, US DEA country attach Andrew Fenrich (Fenrich), and two
armed bodyguards moved out of the cordoned area. When the car was safely on its way, Jaylo and
his men shot De Guzman, Calanog, and Manguera. They waited 15 minutes for the victims to bleed
out and thereafter loaded them into the vehicles under the ruse of bringing them to the hospital.
12

Version of the Defense

When he saw Needham executing the prearranged signal, Manila executed the second signal of
wiping the right side of his face as confirmation.
13

Castro, who was driving a Lancer car with Jaylo as his passenger, stepped on the accelerator to
block the path of the Volkswagen. Both of them immediately alighted from the vehicle. Jaylo
confronted De Guzman in the Saab, while Castro arrested Calanog in the Volkswagen. Meanwhile,
Valenzona and Habalo approached Manguera.
14

15

A speeding blue-green car and a burst of gunfire caught the attention of the operatives while they
were approaching their quarries. Taking advantage of the distraction, De Guzman, Calanog, and
Manguera reached for their firearms and tried to shoot.
16

Jaylo was able to move away, so only the window on the drivers side of the Saab was hit and
shattered. He retaliated and shot De Guzman twice, hitting him in the left eye and chest.
17

18

Out of instinct, Castro shoved the gun of Calanog upward and shot him twice. Calanog staggered,
but again aimed the gun at him. It was then that Castro shot Calanog two times more, causing the
latter to finally fall down.
19

Valenzona and Habalo saw Manguera in the act of drawing his firearm. Both of them fired and hit
him.
20

The operatives brought De Guzman, Calanog, and Manguera to the hospital. Upon verifying their
identities, the victims were found to be soldiers: Colonel Rolando de Guzman and Major Franco
Calanog. Manguera was the driver/security aide of Major Calanog.
21

22

23

The Elma Committee

President Corazon Aquino issuedAdministrative Order No. 182 on 13 July 1990 creating the "Elma
Committee." Headed by Presidential Assistant for Legal and Judicial Affairs Magdangal Elma, with
Undersecretary of National Defense Leonardo Quisumbing and Undersecretary of Justice Eduardo
Montenegro as members, the Elma Committee was tasked to conduct an investigation of all the
facts and circumstances surrounding the seizure of heroin and the shooting incident.
24

Pursuant to its mandate to submit its findings and recommendations to the President after the
completion of its investigation, the Elma Committee recommended the prosecution of Jaylo for the
killing of De Guzman, Castro for that of Calanog, and Valenzona and Habalo for that of Manguera.

25

However, in three separate Amended Informations dated 8 September 1992 and filed before the
Sandiganbayan, Jaylo, Castro, Valenzona and Habalo, together with several John Does, were
charged with conspiracy in the murder of De Guzman, Calanog, and Manguera. RULING OF THE
SANDIGANBAYAN
26

27

28

In a Decision dated 17 April 2007, the Sandiganbayan found Jaylo, Castro, Valenzona, and Habalo
guilty of homicide. Jaylo was convicted for the killing of De Guzman under Criminal Case No. 17984;
Castro for that of Calanog under Criminal Case No. 17985; and Valenzona and Habalo for
Mangueras under Criminal Case No. 17986. Each of the accused was sentenced to imprisonment
ofsix years and one day of prision mayoras minimum to 14 years, eight months and one day of
reclusion temporalas maximum, and perpetual disqualification from public office. Each was likewise
ordered to pay P50,000 as damages to the heirs of their respective victims, and a proportionate
share in the costs of suit.
29

The Sandiganbayan noted that the prosecution and the defense were in agreement that the four
accused shot and killed the three victims. With this established fact, it was only necessary to
determine the following:
30

a) Whether the accused conspired to kill the victims;

b) Whether the killing was attended by treachery, evident premeditation and taking
advantage of superior strength; and
c) Whether the killing was justified by the circumstance of fulfillment of duty or lawful exercise
of a right or office.
According to the Sandiganbayan, the evidence presented did not show conspiracy or any intention
on the partof the four accused to aid one another in the shooting. They did not demonstrate a
preconceived common plan or scheme to liquidate the suspected drug dealers. The prosecution was
also unable to prove the attendance of any of the qualifying circumstances. Treachery was not
established. The Sandiganbayan ruled that it could not take judicial notice of the statements given
before the Elma Committee by Dr. Desiderio Moraleda, who had conducted the autopsy on the
victims. Dr. Moraleda died before he could testify before the Sandiganbayan, and his testimony
onthe trajectory of the bullets and the positions of the assailants relative to those of the victims could
not be admitted in evidence without violating the rules on hearsay evidence.
31

32

On the allegation that the four accused took advantage of superior strength, the court ruled that
there was no evidence showing the use of excessive force out of proportion to the defense available
to the victims. In particular, the shooting of Manguera by Valenzona and Habalo only showed
numerical superiority, not superior strength.
The prosecution also failed to prove evident premeditation. It was not able to indicate the time when
the four accused determined to commit the killing; neither was it able to pinpoint the overt act
demonstrating that they adhered to their resolve to commit the crime even after the lapse of enough
time "to allow their conscience to overcome the resolution of their will."
33

For their part, the accused also failed to prove their defense of fulfillment of a duty or lawful exercise
of a right or office. The Sandiganbayan was not convinced that they had acted within the bounds
allowed for an arrest in a buy-bust operation.
34

For one, the Sandiganbayan highly doubted the existence of the speeding car that distracted the
operatives while they were arresting the suspected drug dealers. In this regard, it took note of the
inconsistent testimonies of Manila and Noriega on one hand and of Needham on the other.
According to Manila, when he heard the gunfire from the speeding car, he covered Needham and
ran with him towards the South Superhighway, away from the taxicab driven by Noriega. Needham
got into the diplomatic car that approached them. When the shooting subsided, he went back to the
scene.
35

According to Noriega, he saw the speeding car going towards the Maranaw Building parking lot and
heard three gunshots. Thereafter, he saw Needham run towards his taxi and board it. While Noriega
was trying to get Needham away from the area, a diplomatic car blocked their taxicab, and the latter
transferred to that car.
According to Needham, however, he immediately walked back to the taxi after executing the
prearranged signalfor the arrest, got in the cab and left the scene. As the taxicab was leaving, he

saw the "rescue" coming in. Other than that, he did not notice any commotion or gunfire. He was
then picked up by Fenrich, and they went on their way.
36

The Sandiganbayan also noted that the slugs or shells recovered from the scene all came from short
firearms, contrary to Jaylos testimony that the shots from the speeding car were from a rifle (an
"armalite").
Further militating against the existence of the speeding car was Jaylos incident Report dated 10 July
1990, in which he stated that when they rushed in for the arrest, they were met by a volley of gunfire
from the three cars of the suspected drug dealers. There was no mention at all of any speeding car.
37

Considering the failure of the prosecution to prove conspiracy and the attendance of any of the
alleged qualifying circumstances, as well as the failure of the defense to prove the justifying
circumstance of fulfillment of a duty or lawful exercise of a right or office, the Sandiganbayan ruled
that the crime committed was homicide.
During the promulgation of the Sandiganbayans judgment on 17 April 2007, none of the accused
appeared despite notice. The court promulgated the Decision in absentia, and the judgment was
entered in the criminal docket. The bail bonds of the accused were cancelled, and warrants for their
arrest issued.
38

On 30 April 2007, counsel for Jaylo, Valenzona, and Habalo filed a Motion for Partial
Reconsideration of the Decision. In the assailed Resolution dated 29 November 2007, the
Sandiganbayan took no action on the motion and ordered the implementation of the warrants for the
arrest of the convicted accused. The court ruled that the 15-day period from the promulgation of the
judgment had long lapsed without any of the accused giving any justifiable cause for their absence
during the promulgation. Under Section 6 of Rule 120 of the Rules of Court, Jaylo, Valenzona and
Habalo have lost the remedies available under the Rules against the Sandiganbayans judgment of
conviction, including the filing of a motion for reconsideration.
39

40

41

In an Ad Cautelam Motion for Reconsideration dated 25 January 2008, counsel for the three urged
the Sandiganbayan to givedue course to and resolve the Motion for Partial Reconsideration. The
Sandiganbayan issued the second assailed Resolution dated 26 May 2008. The court ruled that for
the failure of the three to surrender and move for leave to avail themselves of a motion for
reconsideration within 15 days from the date of promulgation, the judgment has become final and
executory, and no action on the motion for reconsideration can be taken. It then reiterated its order
to implement the warrants for the arrest of the three. ISSUE
42

43

On 19 June 2008, petitioners Jaylo, Valenzona and Habalo, by counsel, filed the instant petition
assailing the Sandiganbayan Decision dated 17 April 2007 and Resolutions dated 29 November
2007 and 26 May 2008. Regarding the Decision dated 17 April 2007, petitioners argue that the
Sandiganbayan erred in ruling as follows:
1. The negative finding of a conspiracy did not lead to the positive finding of the justifying
circumstance of fulfillment of duty.
2. There was a contradiction between the testimonies of Manila and Noriega on one hand
and Needham on the other.

3. The existence of the speeding car was highly doubtful.

4. The inconsistency in the testimony of Jaylo was determinative of his lack of credibility.
5. There should be conclusive physical evidence to prove the justifying circumstance of
fulfillment of duty.
6. The admissions of petitioners before the Elma Committee were admissible in evidence.
7. Petitioners are guilty of homicide even in the absence of their positive identification as the
ones who committed the crimes charged.
Anent the Resolutions dated 29 November 2007 and 26 May 2008, petitioners argue:
1. Section 6 of Rule 120 of the Rules of Court cannot diminish, increase or modify
substantive rights like the filing of a motion for reconsideration provided under Presidential
Decree No. (P.D.) 1606.
44

2. The conditions under Section 6 Rule120 of the Rules of Court do not obtain in the instant
case.
As stated at the outset, the resolution of the instant case hinges on the question regarding the
effects of the non appearance of the accused, without justifiable cause, in the promulgation of the
judgment of conviction. In the interest of judicial economy, we shall proceed with a discussion on this
question. For reasons that will be expounded on below, the application in this case of the law and
rules on the non appearance of the accused, without justifiable cause, in the promulgation of the
judgment of conviction shall determine for us the propriety of conducting a review of the
Sandiganbayan Decision dated 17 April 2007.
OUR RULING
Section 6, Rule 120, of the Rules of Court provides that an accused who failed to appear at the
promulgation of the judgment of conviction shall lose the remedies available against the said
judgment.
Section 6, Rule 120, of the Rules of Court states:
SECTION 6. Promulgation of judgment. The judgment is promulgated by reading it in the
presence of the accused and any judge of the court in which it was rendered. However, if the
conviction is for a light offense, the judgment may be pronounced in the presence of his counsel or
representative. When the judge is absent or outside the province or city, the judgment may be
promulgated by the clerk of court.
If the accused is confined or detained in another province or city, the judgment may be promulgated
by the executive judge of the Regional Trial Court having jurisdiction over the place of confinement
or detention upon request of the court which rendered the judgment. The court promulgating the
judgment shall have authority to accept the notice of appeal and to approve the bail bond pending
appeal; provided, that if the decision of the trial court convicting the accused changed the nature of

the offense from non-bailable to bailable, the application for bail can only be filed and resolved by
the appellate court.
The proper clerk of court shall givenotice to the accused personally or through his bondsman or
warden and counsel, requiring him to be present at the promulgation of the decision. If the accused
was tried in absentia because he jumped bail or escaped from prison, the notice to him shall be
served at his last known address.
In case the accused fails to appear at the scheduled date of promulgation of judgment despite
notice, the promulgation shall be made by recording the judgment in the criminal docket and serving
him a copy thereof at his last known address or thru his counsel.
If the judgment is for conviction and the failure of the accused to appear was without justifiable
cause, he shall lose the remedies available in these rules against the judgment and the court shall
order his arrest. Within fifteen (15) days from promulgation of judgment, however, the accused may
surrender and file a motion for leave of court to avail of these remedies. He shall state the reasons
for his absence at the scheduled promulgation and if he proves that his absence was for a justifiable
cause, he shall be allowed to avail of said remedies within fifteen (15) days from notice.(6a)
(Emphasis supplied)
Except when the conviction is for a light offense, in which case the judgment may be pronounced in
the presence of the counsel for the accused or the latters representative, the accused is required to
be present at the scheduled date of promulgation of judgment. Notice of the schedule of
promulgation shall be made to the accused personally or through the bondsman or warden and
counsel.
The promulgation of judgment shall proceed even in the absence of the accused despite notice. The
promulgation in absentia shall be made by recording the judgment in the criminal docket and serving
a copy thereof to the accused at their last known address or through counsel. The court shall also
order the arrest of the accused ifthe judgment is for conviction and the failure to appear was without
justifiable cause.
45

If the judgment is for conviction and the failure to appear was without justifiable cause, the accused
shall lose the remedies available in the Rules of Court against the judgment. Thus, it is incumbent
upon the accused to appear on the scheduled date of promulgation, because it determines the
availability of their possible remedies against the judgment of conviction. When the accused fail to
present themselves at the promulgation of the judgment of conviction, they lose the remedies of
filing a motion for a new trial or reconsideration (Rule 121) and an appeal from the judgment of
conviction (Rule 122).
46

The reason is simple. When the accused on bail fail to present themselves at the promulgation of a
judgment of conviction, they are considered to have lost their standing in court. Without any
standing in court, the accused cannot invoke itsjurisdiction to seek relief.
47

48

Section 6, Rule 120, of the Rules of Court, does not take away substantive rights; itmerely provides
the manner through which an existing right may be implemented.
Petitioners claim that their right to file a motion for reconsideration or an appeal has a statutory
origin, as provided under Section 7 of P.D. 1606, to wit:

Section 7. Form, Finality and Enforcement of Decisions. All decisions and final orders determining
the merits of a case or finally disposing of the action or proceedings of the Sandiganbayan shall
contain complete findings of the facts and the law on which they are based, on all issues properly
raised before it and necessary in deciding the case.
A petition for reconsideration of any final order or decision may be filed within fifteen (15) days from
promulgation or notice of the final order or judgment, and such motion for reconsideration shall be
decided within thirty (30) days from submission thereon. (Emphasis supplied)
xxxx
According to petitioners, Section 7 of P.D. 1606 did not provide for any situation as to when the right
to file a motion for reconsideration may be deemed lost. Thus, it is available at all times and the
Rules promulgated by the Supreme Court cannot operate to diminish or modify the right of a
convicted accused to file a motion for reconsideration. Furthermore, they argue, the right to file a
motion for reconsideration is a statutory grant, and not merely a remedy "available in [the] Rules," as
provided under Section 6 of Rule 120 of the Rules of Court. Thus, according to them, their absence
at the promulgation of judgment before the Sandiganbayan cannot be deemed to have resulted in
the loss of their rightto file a motion for reconsideration.
49

Petitioners argument lacks merit.

Like an appeal, the right to file a motion for reconsideration is a statutory grant or privilege. As a
statutory right, the filing of a motion for reconsideration is to be exercised in accordance with and in
the manner provided by law. Thus, a party filing a motion for reconsideration must strictly comply
with the requisites laid down in the Rules of Court.
50

It bears stressing that the provision on which petitioners base their claim states that "[a] petition for
reconsideration of any final order or decision maybe filed within fifteen (15) days from promulgation
or notice of the final order or judgment." In Social Security Commission v. Court of Appeals, we
enunciated that the term "may" denotes a mere possibility, an opportunity, or an option. Those
granted this opportunity may choose to exercise it or not. If they do, they must comply with the
conditions attached thereto.
51

52

53

Aside from the condition that a motion for reconsideration must be filed within 15 days from the
promulgation or notice of the judgment, the movant must also comply with the conditions laid down
in the Rules of Court, which applies to all cases and proceedings filed with the Sandiganbayan.
54

Petitioners insist that the right to file a motion for reconsideration under Section 7 of P.D. 1606 is a
guarantee, and no amount of Rules promulgated by the Supreme Court can operate to diminish or
modify this substantive right. Aptly citing Fabian v. Desierto, the Sandiganbayan was correct in
rejecting the argument of petitioners in this wise:
55

Fabian v. Desiertolays down the test for determining whether a rule prescribed by the Supreme
Court, for the practice and procedure of the lower courts, abridges, enlarges or modifies any
substantive right, to wit:
"whether the rule really regulates procedure, that is, the judicial process for enforcing rights and
duties recognized by substantive lawand for justly determining remedy and redress for a disregard or

infraction of them. If the rule takes away a vested right, it is not procedural. If the rule creates a right
such as the right to appeal, it may be classified as a substantive matter; but if it operates as a means
of implementing an existing right then the rule deals merely with procedure.
Applying the Fabian v. Desiertotest, it appears indubitable that Section 6, Rule 120 of the Rules of
Court (ROC) clearly applies to the Sandiganbayan.
Section 6, Rule 120, ROC as well as Section 4, Rule VIII of the Revised Rules of the Sandiganbayan
(which makes applicable Section 6, Rule 120, ROC when the accused is absent during promulgation
of judgment) merely regulates the right to file a motion for reconsideration under P.D. 1606. These
are mere rules of procedure which the Supreme Court is competent to adopt pursuant to its rulemaking power under Article VIII, Section 5(5) of the Constitution. And, contrary to the view espoused
by the accused, said rules do not take away, repeal or alter the right to file a motion for
reconsideration as said right still exists. The Supreme Court merely laid down the rules on
promulgation of a judgment of conviction done in absentia in cases when the accused fails to
surrender and explain his absence within 15 days from promulgation. The Supreme Court can very
well do this as the right to file a motion for reconsideration under P.D. 1606 is not preclusive in
character. Indeed, there is nothing in P.D. 1606 which prevents the Supreme Court from regulating
the procedure for promulgation of decisions in criminal cases done in absentia.
56

Section 6, Rule 120, of the Rules of Court, does not take away per se the right of the convicted
accused to avail of the remedies under the Rules. It is the failure of the accused to appear without
justifiable cause on the scheduled date of promulgation of the judgment of conviction that forfeits
their right to avail themselves of the remedies against the judgment.
It is not correct to say that Section 6, Rule 120, of the Rules of Court diminishes or modifies the
substantive rights of petitioners. It only works in pursuance of the power of the Supreme Court to
"provide a simplified and inexpensive procedure for the speedy disposition of cases." This provision
protects the courts from delay in the speedy disposition of criminal cases delay arising from the
simple expediency of nonappearance of the accused on the scheduled promulgation of the judgment
of conviction.
57

In this case, petitioners have just shown their lack of faith in the jurisdiction of the Sandiganbayan by
not appearing before it for the promulgation of the judgment on their cases. Surely they cannot later
on expect to be allowed to invoke the Sandiganbayans jurisdiction to grant them relief from its
judgment of conviction.
It is incumbent upon the accused to
show justifiable cause for their
absence at the promulgation of the
judgment of conviction.
According to petitioners, even if wewere to apply Section 6, Rule 120, the conditions under which an
accused loses the remedies available in the Rules of Court do not obtain in this case. It is argued
that for the provision to apply, it must be shown that 1) the accused was notified of the scheduled
date of promulgation, and that 2) the accused failed to appear at the promulgation of the judgment of
conviction without justifiable cause.

Petitioners insist that the Sandiganbayan did not bother to determine whether their absence at the
promulgation of judgment was without justifiable cause. In other words, as petitioners would have it,
it was incumbent upon the Sandiganbayan to take pains to find out whether their absence at the
promulgation was without justifiable cause, and only then could the court conclude that petitioners
have lost the remedies available in the Rules of Court against the judgment of conviction.
It is well to note that Section 6, Rule 120, of the Rules of Court also provides the remedy by which
the accused who were absent during the promulgation may reverse the forfeiture of the remedies
available to them against the judgment of conviction. In order to regain their standing in court, the
accused must do as follows: 1) surrender and 2) file a motion for leave of court to avail of the
remedies, stating the reasons for their absence, within 15 days from the date of the promulgation of
judgment.
58

In Villena v. People, we stated that the term "surrender" contemplates the act by the convicted
accused of physically and voluntarily submitting themselves to the jurisdiction of the court to suffer
the consequences of the judgment against them. Upon surrender, the accused must request
permission of the court to avail of the remedies by making clear the reasons for their failure to attend
the promulgation of the judgment of conviction.
59

Clearly, the convicted accused are the ones who should show that their reason for being absent at
the promulgation of judgment was justifiable. If the court finds that the reasons proffered justify their
nonappearance during the promulgation of judgment, it shall allow them to avail of the
remedies. Thus, unless they surrender and prove their justifiable reason to the satisfaction of the
court, their absence is presumed to be unjustified.
60

On the scheduled date of promulgation on 17 April 2007, the Sandiganbayan noted that only Atty.
Francisco Chavez, counsel for petitioners, appeared. Jaylo was not served notice of the
promulgation, because he was no longer residing athis given address. Valenzona and Habalo were
duly notified. Castro had died on 22 December 2006.
61

62

Petitioners did not surrender within 15 days from the promulgation of the judgment of
conviction. Neither did they ask for leave of court to avail themselves of the remedies, and state the
reasons for their absence. Even if we were to assume that the failure of Jaylo to appear at the
promulgation was due to failure to receive notice thereof, it is not a justifiable reason. He should
have filed a notice of change ofaddress before the Sandiganbayan.
1wphi1

The Sandiganbayan was correct in not taking cognizance of the Motion for Partial Reconsideration
filed by counsel for petitioners. While the motion was filed on 30 April 2007, it did not operate to
regain the standing of petitioners in court. For one, it is not anact of surrender that is contemplated
by Section 6, Rule 120, of the Rules of Court. Moreover, nowhere in the Motion for Partial
Reconsideration was it indicated that petitioners were asking for leave to avail of the remedies
against the judgment of conviction, or that there were valid reasons for their absence at the
promulgation.
For the failure of petitioners to regain their standing in court and avail themselves of the remedies
against the judgment of conviction, the Decision of the Sandiganbayan attained finality 15 days
reckoned from 17 April 2007.

In view thereof, this Court no longer has the power to conduct a review of the findings and
conclusions in the Decision of the Sandiganbayan. The Decision is no longer subject to change,
revision, amendment, or reversal. Thus, there is no need to pass upon the issues raised by
petitioners assailing it.
63

WHEREFORE, the petition is DENIED. The Sandiganbayan Resolutions dated 29 November 2007
and 26 May 2008 in Criminal Case Nos. 17984-86 are AFFIRMED. The Sandiganbayan Decision
dated 17 April 2007, having attained finality, stands.
SO ORDERED.
G.R. No. 185709

February 18, 2010

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
MICHAEL A. HIPONA, Appellant.
DECISION
CARPIO MORALES, J.:
Michael A. Hipona (appellant) was convicted by Decision of September 10, 2002 1 of the Regional
Trial Court of Cagayan de Oro City, Branch 18 with "Rape with Homicide (and Robbery)" [sic]. His
conviction was affirmed by the Court of Appeals by Decision of January 28, 2008. 2
The Second Amended Information charged appellant together with Romulo Seva, Jr. and one John
Doe withRobbery with Rape and Homicide as follows:
That on or about June 12, 2000 at 1:00 oclock dawn at District 3, Isla Copa, Consolation, Cagayan
de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating together, and mutually helping one another, by means of force
and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with
the offended party (AAA) who is the Aunt of accused Michael A. Hipona, she being the younger
sister of the accuseds mother and against her will, that on occasion of the said rape, accused, with
evident premeditation, treachery and abuse of superior strength, and dwelling, with intent to kill and
pursuant to their conspiracy, choked and strangulated said AAA which strangulation resulted to the
victims untimely death. That on the said occasion the victims brown bag worth P3,800.00; cash
money in the amount of no less than P5,000.00; and gold necklace were stolen by all accused but
the gold necklace was later on recovered and confiscated in the person of accused Michael A.
Hipona.3 (emphasis and underscoring in the original)
The following facts are not disputed.
AAA4 was found dead on the morning of June 12, 2000 in her house in Isla Copa, Consolation,
Cagayan de Oro City. She was raped, physically manhandled and strangled, which eventually led to
her death. Her furniture and belongings were found strewn on the floor. AAAs necklace with two
heart-shaped pendants bearing her initials and handbag were likewise missing.

Upon investigation, the local police discovered a hole bored into the lawanit wall of the comfort room
inside AAAs house, big enough for a person of medium build to enter. The main electrical switch
behind a "shower curtain" located at the "back room" was turned off, drawing the police to infer that
the perpetrator is familiar with the layout of AAAs house.
SPO1 Bladimir Agbalog of the local police thus called for a meeting of AAAs relatives during which
AAAs sister BBB, who is appellants mother, declared that her son-appellant had told her that
"Mama, Im sorry, I did it because I did not have the money," and he was thus apologizing for AAAs
death. BBB executed an affidavit affirming appellants confession. 5
On the basis of BBBs information, the police arrested appellant on June 13, 2000 or the day after
the commission of the crime. He was at the time wearing AAAs missing necklace. When on even
date he was presented to the media and his relatives, appellant apologized but qualified his
participation in the crime, claiming that he only acted as a look-out, and attributed the crime to his
co-accused Romulo B. Seva, Jr. (Seva) alias "Gerpacs" and a certain "Reypacs."
A day after his arrest or on June 14, 2000, appellant in an interview which was broadcasted, when
asked by a radio reporter "Why did you do it to your aunt?," answered "Because of my friends and
peers." When pressed if he was intoxicated or was on drugs when he "did it," appellant answered
that he did it because of his friends and of poverty.
Appellants co-accused Seva was later arrested on July 9, 2000, while "Reypacs" remained at large.
Appellant entered a plea of not guilty while Seva refused to enter a plea, hence, the trial court
entered a "not guilty" plea on his behalf.
Post mortem examination of AAA revealed the following findings:
Rigor mortis, generalized, Livor mortis, back, buttocks, flanks, posterior aspect of neck and
extremities (violaceous).
Face, markedly livid. Nailbeds, cyanotic. With extensive bilateral subconjunctival hemorrhages and
injections. Petecchial hemorrhages are likewise, noted on the face and upper parts of neck.
ABRASIONS, with fibrin: curvilinear; three (3) in number; measuring 1.1x0.4 cms., 0.8x0.3 cms., and
0.6x0.1 cm.; within an area of 2.8x1.1 cms. at the left side of the neck, antero-lateral aspect.
HEMATOMAS, violaceous; hemispherical in shapes, highly characteristic of bite marks: 3.5 x 0.4
cms. and 4.1x1.4 cms.; located at the right lower buccal region, lateral and medial aspects,
respectively.
SOFT TISSUE DEFECT, with irregular edges; 2.5 x 2.7 cms.; left thigh, distal 3rd, medial aspect;
involving only the skin and underlying adipose tissues; with an approximate depth of 1.6 cms.
ABRASIONS, with fibrin, curvilinear in shapes; 0.6x0.3 cm. and 0.5x0.3cm., right upper eyelid;
0.4x0.2 cms. and 0.3x 0.2 cms, right upper arm, distal 3rd, medial aspect; 0.5x0.3 cm., right forearm,
proximal 3rd, medial aspect; 0.7x0.3 cm., left elbow; 0.5x0.2 cm., left forearm, middle 3rd, posterior
aspect.

HEMATOMA, violaceous: 2.2x2.5 cms., right upper arm, middle 3rd, medial aspect
DEPRESSED FRACTURE, body of thyroid cartilage, lateral aspects, bilateral.
PETECCHIAL HEMORRHAGES, subpleural, bilateral, and sub-epicardial.
xxxx
GENITAL FINDINGS:
Subject is menstruating. Pubic hairs, fully grown, abundant. Labiae majora and minora, both
coaptated. Vestibular mucosa, pinkish, smooth. Hymen, short, thin with COMPLETE, FRESH
HYMENAL LACERATION (with fibrin and fresh reddish soft blood clot) at 6:00 oclock position, and
extending to the posterior aspect of vestibular mucosa up to the area of fourchette. Hymenal orifice
originally annular, admits a glass tube of 2.5 cms. diameter with moderate resistance. Vaginal
rugosities, prominent. Cervix, firm. Uterus, small.
VVVVVVVVVVV
CAUSE OF DEATH: Asphyxia by strangulation (manual).
REMARKS: Genital injury noted, age of which is compatible with sexual intercourse(s) with
man/menon or about June 11-12 2000.6 (underscoring supplied)
Albeit appellants mother BBB refused to take the witness stand, SPO1 Agbalog and Consuelo
Maravilla, another relative of appellant, testified on BBBs declaration given during the meeting of
relatives.
Appellant refused to present evidence on his behalf while Seva presented evidence to controvert the
evidence on his alleged participation in the crime.
By Decision of September 10, 2002, the trial court, after considering circumstantial evidence, viz:
Based on the foregoing circumstances, specially of his failure to explain why he was in possession
of victims stolen necklace with pendants, plus his confession to the media in the presence of his
relatives, and to another radio reporter "live-on-the-air" about a day after his arrest, sealed his
destiny to perdition and points to a conclusion beyond moral certainty that his hands were soiled and
sullied by blood of his own Aunt.7 (underscoring supplied),
found appellant guilty beyond reasonable doubt of "Rape with Homicide (and Robbery)." [sic]. It
acquitted Seva. Thus the trial court disposed:
WHEREFORE, in view of all the foregoing, the Court finds accused MICHAEL HIPONA GUILTY
beyond reasonable doubt of a special complex crime of Rape with Homicide (and
Robbery) punishable under Articles 266-A and 266-B, of the Revised Penal Code, as amended by
R.A. 8353, and after taking into account the generic aggravating circumstance of dwelling, without a
mitigating circumstance, accused MICHAEL HIPONA is hereby sentenced and SO ORDERED to
suffer the supreme penalty of DEATH by lethal injection, plus the accessory penalties. He is

hereby SO ORDERED to pay the heirs the sum of One Hundred Thousand (P100,000.00) Pesos, as
indemnity. Another One Hundred Thousand (P100,000.00) Pesos, as moral damages. In order to
further give accused Michael Hipona a lesson that would serve as a warning to others, he is also
directed and SO ORDERED to pay another Fifty Thousand (P50,000.00) Pesos, as exemplary
damages.
For failure on the part of the prosecution to prove the guilt of the accused Romulo Seva, Jr., beyond
reasonable doubt, it is SO ORDERED that he should be acquitted and it is hereby ACQUITTED of
the crime charged, and is hereby released from custody unless detained for other legal ground.
Pursuant to Section 22 of R.A. 7659, and Section 10 of Rule 122 of the Rules of Court, let the entire
record be forwarded to the Supreme Court for automatic review."8 (emphasis in the original;
underscoring supplied)
On elevation of the records of the case, the Court, following People v. Mateo,9 referred the same to
the Court of Appeals.
Appellant maintains that his guilt was not proven beyond reasonable doubt. 10
As stated early on, the Court of Appeals sustained appellants conviction. It, however, modified the
penalty11imposed, and the amount of damages awarded by the trial court. Thus the appellate court,
by the challenged Decision of January 28, 2008, disposed:
WHEREFORE, the Decision of the lower court is hereby AFFIRMED with the following
MODIFICATIONS:
1. That the penalty imposed is reclusion perpetua;
2. That appellant is hereby ordered to pay the heirs of AAA the following: the sum of
P100,000.00 as civil indemnity; P75,000.00 as moral damages; and P100,000.00 as
exemplary damages.
SO ORDERED.12 (underscoring supplied)
The records of the case were elevated to this Court in view of the Notice of Appeal filed by appellant.
Both the People and appellant manifested that they were no longer filing any supplemental briefs.
The appeal is bereft of merit.
For circumstantial evidence to suffice to convict an accused, the following requisites must concur: (1)
there is more than one circumstance; (2) the facts from which the inferences are derived are proven;
and (3) the combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.13
The confluence of the following established facts and circumstances sustains the appellate courts
affirmance of appellants conviction: First, appellant was frequently visiting AAA prior to her death,
hence, his familiarity with the layout of the house; second, appellant admitted to his relatives and the
media that he was present during commission of the crime, albeit only as a look-out; third, appellant

was in possession of AAAs necklace at the time he was arrested; and fourth, appellant
extrajudicially confessed to the radio reporter that he committed the crime due to his peers and
because of poverty.
Appellant argues that he should only be held liable for robbery and not for the complex crime of
"Rape with Homicide (and Robbery)" [sic]. He cites the testimony of prosecution witness Aida ViloriaMagsipoc, DNA expert of the National Bureau of Investigation, that she found the vaginal smears
taken from AAA to be negative of appellants DNA.
Appellants argument fails. Presence of spermatozoa is not essential in finding that rape was
committed, the important consideration being not the emission of semen but the penetration of the
female genitalia by the male organ.14 As underlined above, the post-mortem examination of AAAs
body revealed fresh hymenal lacerations which are consistent with findings of rape.
Not only does appellants conviction rest on an unbroken chain of circumstantial evidence. It rests
also on his unbridled admission to the media. People v. Andan instructs:
Appellants confessions to the media were likewise properly admitted. The confessions were made in
response to questions by news reporters, not by the police or any other investigating officer. We
have held that statements spontaneously made by a suspect to news reporters on a televised
interview are deemed voluntary and are admissible in evidence.15 (underscoring supplied)
Appellant argues, however, that the questions posed to him by the radio broadcaster were vague for
the latter did not specify what crime was being referred to when he questioned appellant. But, as the
appellate court posited, appellant should have qualified his answer during the interview if indeed
there was a need. Besides, he had the opportunity to clarify his answer to the interview during the
trial. But, as stated earlier, he opted not to take the witness stand.
1avvphi1

The Court gathers, however, that from the evidence for the prosecution, robbery was the main intent
of appellant, and AAAs death resulted by reason of or on the occasion thereof. Following Article
294(1)16 and Article 62(1)117of the Revised Penal Code, rape should have been appreciated as an
aggravating circumstance instead.18
A word on the amount of exemplary damages awarded. As the Court finds the award of P100,000
exemplary damages excessive, it reduces it to P25,000, in consonance with prevailing
jurisprudence.19
WHEREFORE, the Decision of January 28, 2008 of the Court of Appeals is
hereby AFFIRMED withMODIFICATION. Appellant, Michael A. Hipona is found guilty beyond
reasonable doubt of Robbery with Homicide under Article 294(1) of the Revised Penal Code. He is
accordingly sentenced to reclusion perpetua. And the award of exemplary damages is reduced
to P25,000. In all other respects, the Decision is affirmed.
SO ORDERED.
G.R. No. 181571

December 16, 2009

JUNO BATISTIS, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
On January 23, 2006, the Regional Trial Court (RTC), Branch 24, in Manila convicted Juno Batistis
for violations of Section 155 (infringement of trademark) and Section 168 (unfair competition) of the
Intellectual Property Code (Republic Act No. 8293).1
On September 13, 2007, the Court of Appeals (CA) affirmed the conviction for infringement of
trademark, but reversed the conviction for unfair competition for failure of the State to prove guilt
beyond reasonable doubt.2
Batistis now appeals via petition for review on certiorari to challenge the CAs affirmance of his
conviction for infringement of trademark.
We affirm the conviction, but we modify the penalty by imposing an indeterminate sentence,
conformably with the Indeterminate Sentence Law and pertinent jurisprudence.
Antecedents
The Fundador trademark characterized the brandy products manufactured by Pedro Domecq, S.A.
of Cadiz, Spain.3 It was duly registered in the Principal Register of the Philippines Patent Office on
July 12, 1968 under Certificate of Registration No. 15987,4 for a term of 20 years from November 5,
1970. The registration was renewed for another 20 years effective November 5, 1990. 5
Allied Domecq Philippines, Inc., a Philippine corporation exclusively authorized 6 to
distribute Fundador brandy products imported from Spain wholly in finished form, 7 initiated this case
against Batistis. Upon its request, agents of the National Bureau of Investigation (NBI) conducted a
test-buy in the premises of Batistis, and thereby confirmed that he was actively engaged in the
manufacture, sale and distribution of counterfeit Fundador brandy products.8 Upon application of the
NBI agents based on the positive results of the test-buy,9 Judge Antonio M. Eugenio, Jr. of the Manila
RTC issued on December 20, 2001 Search Warrant No. 01-2576, 10 authorizing the search of the
premises of Batistis located at No.1664 Onyx St., San Andres Bukid, Sta. Ana, Manila. The search
yielded 20 empty Carlos I bottles, 10 empty bottles of Black Label whiskey, two empty bottles of
Johnny Walker Swing, an empty bottle of Remy Martin XO, an empty bottle of Chabot, 241 empty
Fundador bottles, 163 boxes of Fundador, a half sack of Fundador plastic caps, two filled bottles of
Fundador brandy, and eight cartons of emptyJose Cuervo bottles.11
The Office of the City Prosecutor of Manila formally charged Batistis in the RTC in Manila with two
separate offenses, namely, infringement of trademark and unfair competition, through the following
information, to wit:
That on or about December 20, 2001, in the City of Manila, Philippines, the said accused, being then
in possession of two hundred forty one (241) empty Fundador bottles, one hundred sixty three

Fundador boxes, one half (1/2) sack of Fundador plastic caps, and two (2) Fundador bottles with
intention of deceiving and defrauding the public in general and Allied Domecq Spirits and Wines and
Allied Domecq Philippines, Inc. represented by Atty. Leonardo P. Salvador, a corporation duly
organized and existing under the laws of the Republic of the Philippines and engaged in
manufacturing of Fundador Brandy under license of Pedro Domecq, S.A. Cadiz, Spain, and/or
copyright owner of the said product, did then and there wilfully, unlawfully and feloniously reproduce,
sell and offer for sale, without prior authority and consent of said manufacturing company, the
accused giving their own low quality product the general appearance and other features of the
original Fundador Brandy of the said manufacturing company which would be likely induce the public
to believe that the said fake Fundador Brandy reproduced and/or sold are the real Fundador Brandy
produced or distributed by the Allied Domecq Spirits and Wines Limited, U.K. and Allied Domecq
Philippines, Inc. to the damage and prejudice of the latter and the public.
Contrary to law.12
With Batistis pleading not guilty on June 3, 2003,13 the RTC proceeded to trial. On January 23, 2006,
the RTC found Batistis guilty beyond reasonable doubt of infringement of trademark and unfair
competition, viz:
ACCORDINGLY, this Court finds the accused JUNO BATISTIS Guilty Beyond Reasonable Doubt of
the crime of Violation of Section 155 of the Intellectual Property Code and hereby sentences him to
suffer the penalty of imprisonment of TWO (2) YEARS and to pay a fine of FIFTY THOUSAND
(P50,000.00) PESOS.
This Court likewise finds accused JUNO BATISTIS Guilty Beyond Reasonable Doubt of the crime of
Violation of Section 168 (sic) penalty of imprisonment of TWO (2) YEARS and to pay a fine of FIFTY
THOUSAND (Php50,000.00) PESOS.
Accused is further ordered to indemnify the private complainant the sum of TWENTY-FIVE
(Php25,000.00) PESOS as actual damages.
The following items recovered from the premises of the accused and subject of the case are hereby
ordered destroyed, pursuant to existing rules and regulations:
Twenty (20) empty Carlos 1 bottles
Ten (10) Black Label empty bottles
Two (2) empty bottles of Jhonny (sic) Walker Swing
One(1) empty bottle of Remy Martin XO
One (1) empty bottle of Chabot
Two hundred forty-one (241) empty Fundador bottles
One hundred sixty-three (163) Fundador boxes

One half (1/2 sack of Fundador plastic caps, and

Two (2) filled Fundador bottles
Eight (8) boxes of empty Jose Cuervo bottles
WITH COSTS AGAINST ACCUSED
SO ORDERED.14
Batistis appealed to the CA, which, on September 13, 2007, affirmed his conviction for infringement
of trademark, but acquitted him of unfair competition,15 disposing:
WHEREFORE, premises considered, the Appeal of Appellant JUNO BATISTIS is hereby PARTIALLY
GRANTED. The challenged Decision is AFFIRMED in so far as the charge against him for Violation
of Section 155 of the Intellectual Property Code is concerned.
However, for failure of the prosecution to prove to a moral certainty the guilt of the said Appellant, for
violation of Section 168 of the same code a judgment of ACQUITTAL is hereby rendered in his favor.
SO ORDERED.16
After the CA denied his motion for reconsideration, Batistis brought this appeal.
Issue
Batistis contends that:
THE REGIONAL TRIAL COURT ERRED IN CONVICTING THE ACCUSED ON THE BASIS OF THE
SELF-SERVING AFFIDAVITS AND TESTIMONIES OF THE POLICE OFFICERS WHO
CONDUCTED THE RAID ON THE HOUSE OF THE ACCUSED.
He submits that the only direct proofs of his guilt were the self-serving testimonies of the NBI raiding
team; that he was not present during the search; that one of the NBI raiding agents failed to
immediately identify him in court; and that aside from the two bottles of Fundador brandy, the rest of
the confiscated items were not found in his house.
Ruling
The petition for review has no merit.
1.
Appeal confined only to Questions of Law
Pursuant to Section 3,17 Rule 122, and Section 9,18 Rule 45, of the Rules of Court, the review on
appeal of a decision in a criminal case, wherein the CA imposes a penalty other than death,
reclusion perpetua, or life imprisonment, is by petition for review on certiorari.

A petition for review on certiorari raises only questions of law. Sec. 1, Rule 45, Rules of Court,
explicitly so provides, viz:
Section 1. Filing of petition with Supreme Court.A party desiring to appeal by certiorari from a
judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition may include an application for
a writ of preliminary injunction or other provisional remedies and shall raise only questions of law,
which must be distinctly set forth. The petitioner may seek the same provisional remedies by verified
motion filed in the same action or proceeding at any time during its pendency.
Accordingly, we reject the appeal for the following reasons:
Firstly: The petition for review replicates Batistis appellant's brief filed in the CA, 19 a true indication
that the errors he submits for our review and reversal are those he had attributed to the RTC. He
thereby rests his appeal on his rehashed arguments that the CA already discarded. His appeal is,
therefore, improper, considering that his petition for review on certiorari should raise only the errors
committed by the CA as the appellate court, not the errors of the RTC.
Secondly: Batistis assigned errors stated in the petition for review on certiorari require a reappreciation and re-examination of the trial evidence. As such, they raise issues evidentiary and
factual in nature. The appeal is dismissible on that basis, because, one, the petition for review
thereby violates the limitation of the issues to only legal questions, and, two, the Court, not being a
trier of facts, will not disturb the factual findings of the CA, unless they were mistaken, absurd,
speculative, conflicting, tainted with grave abuse of discretion, or contrary to the findings reached by
the court of origin.20
Whether a question of law or a question of fact is involved is explained in Belgica v. Belgica: 21
xxx [t]here exists a question of law when there is doubt on what the law applicable to a certain set of
facts is. Questions of fact, on the other hand, arise when there is an issue regarding the truth or
falsity of the statement of facts. Questions on whether certain pieces of evidence should be
accorded probative value or whether the proofs presented by one party are clear, convincing and
adequate to establish a proposition are issues of fact. Such questions are not subject to review by
this Court. As a general rule, we review cases decided by the CA only if they involve questions of law
raised and distinctly set forth in the petition.22
Thirdly: The factual findings of the RTC, its calibration of the testimonies of the witnesses, and its
assessment of their probative weight are given high respect, if not conclusive effect, unless cogent
facts and circumstances of substance, which if considered, would alter the outcome of the case,
were ignored, misconstrued or misinterpreted.23
To accord with the established doctrine of finality and bindingness of the trial courts findings of fact,
we do not disturb such findings of fact of the RTC, particularly after their affirmance by the CA, for
Batistis, as appellant, did not sufficiently prove any extraordinary circumstance justifying a departure
from such doctrine.
2.

Findings of fact were even correct

A review of the decision of the CA, assuming that the appeal is permissible, even indicates that both
the RTC and the CA correctly appreciated the evidence against the accused, and correctly applied
the pertinent law to their findings of fact.
Article 155 of the Intellectual Property Code identifies the acts constituting infringement of
trademark, viz:
Section 155. Remedies; Infringement. Any person who shall, without the consent of the owner of
the registered mark:
155.1. Use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered
mark or the same container or a dominant feature thereof in connection with the sale, offering for
sale, distribution, advertising of any goods or services including other preparatory steps necessary to
carry out the sale of any goods or services on or in connection with which such use is likely to cause
confusion, or to cause mistake, or to deceive; or
155.2. Reproduce, counterfeit, copy or colorably imitate a registered mark or a dominant feature
thereof and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints,
packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in
connection with the sale, offering for sale, distribution, or advertising of goods or services on or in
connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall
be liable in a civil action for infringement by the registrant for the remedies hereinafter set forth:
Provided, That the infringement takes place at the moment any of the acts stated in Subsection
155.1 or this subsection are committed regardless of whether there is actual sale of goods or
services using the infringing material.
Harvey Tan, Operations Manager of Pedro Domecq, S.A. whose task involved the detection of
counterfeit products in the Philippines, testified that the seized Fundador brandy, when compared
with the genuine product, revealed several characteristics of counterfeiting, namely: (a) the Bureau
of Internal Revenue (BIR) seal label attached to the confiscated products did not reflect the
word tunay when he flashed a black light against the BIR label; (b) the "tamper evident ring" on the
confiscated item did not contain the word Fundador; and (c) the word Fundador on the label was
printed flat with sharper edges, unlike the raised, actually embossed, and finely printed genuine
Fundador trademark.24
There is no question, therefore, that Batistis exerted the effort to make the counterfeit products look
genuine to deceive the unwary public into regarding the products as genuine. The buying public
would be easy to fall for the counterfeit products due to their having been given the appearance of
the genuine products, particularly with the difficulty of detecting whether the products were fake or
real if the buyers had no experience and the tools for detection, like black light. He thereby infringed
the registered Fundador trademark by the colorable imitation of it through applying the dominant
features of the trademark on the fake products, particularly the two bottles filled with Fundador
brandy.25 His acts constituted infringement of trademark as set forth in Section 155, supra.
3.

Penalty Imposed should be an

Indeterminate Penalty and Fine
Section 170 of the Intellectual Property Code provides the penalty for infringement of trademark, to
wit:
Section 170. Penalties. - Independent of the civil and administrative sanctions imposed by law, a
criminal penalty of imprisonment from two (2) years to five (5) years and a fine ranging from Fifty
thousand pesos (P50,000) to Two hundred thousand pesos(P200,000), shall be imposed on any
person who is found guilty of committing any of the acts mentioned in Section 155, Section 168 and
Subsection 169.1. (Arts. 188 and 189, Revised Penal Code).
The CA affirmed the decision of the RTC imposing the "the penalty of imprisonment of TWO (2)
YEARS and to pay a fine of FIFTY THOUSAND (P50,000.00) PESOS."
We rule that the penalty thus fixed was contrary to the Indeterminate Sentence Law,26 as amended
by Act No. 4225. We modify the penalty.
Section 1 of the Indeterminate Sentence Law, as amended, provides:
Section 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal
Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the
maximum term of which shall be that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and the minimum which shall be within the range
of the penalty next lower to that prescribed by the Code for the offense; and if the offense is
punished by any other law, the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not
be less than the minimum term prescribed by the same.
The straight penalty the CA imposed was contrary to the Indeterminate Sentence Law, whose
Section 1 requires that the penalty of imprisonment should be an indeterminate sentence. According
to Spouses Bacar v. Judge de Guzman,Jr.,27 the imposition of an indeterminate sentence with
maximum and minimum periods in criminal cases not excepted from the coverage of the
Indeterminate Sentence Law pursuant to its Section 228 is mandatory, viz:
The need for specifying the minimum and maximum periods of the indeterminate sentence is to
prevent the unnecessary and excessive deprivation of liberty and to enhance the economic
usefulness of the accused, since he may be exempted from serving the entire sentence, depending
upon his behavior and his physical, mental, and moral record. The requirement of imposing an
indeterminate sentence in all criminal offenses whether punishable by the Revised Penal Code or by
special laws, with definite minimum and maximum terms, as the Court deems proper within the legal
range of the penalty specified by the law must, therefore, be deemed mandatory.
Indeed, the imposition of an indeterminate sentence is mandatory. For instance, in Argoncillo v.
Court of Appeals,29 three persons were prosecuted for and found guilty of illegal fishing (with the use
of explosives) as defined in Section 33, Presidential Decree No. 704, as amended by Presidential
Decree No. 1058, for which the prescribed penalty was imprisonment from 20 years to life
imprisonment. The trial court imposed on each of the accused a straight penalty of 20 years
imprisonment, and the CA affirmed the trial court. On appeal, however, this Court declared the

straight penalty to be erroneous, and modified it by imposing imprisonment ranging from 20 years,
as minimum, to 25 years, as maximum.
We are aware that an exception was enunciated in People v. Nang Kay,30 a prosecution for illegal
possession of firearms punished by a special law (that is, Section 2692, Revised Administrative
Code, as amended by Commonwealth Act 56 and Republic Act No. 4) with imprisonment of not less
than five years nor more than ten years. There, the Court sustained the straight penalty of five years
and one day imposed by the trial court (Court of First Instance of Rizal) because the application of
the Indeterminate Sentence Law would be unfavorable to the accused by lengthening his prison
sentence. Yet, we cannot apply the Nang Kay exception herein, even if this case was a prosecution
under a special law like that in Nang Kay. Firstly, the trial court in Nang Kay could well and lawfully
have given the accused the lowest prison sentence of five years because of the mitigating
circumstance of his voluntary plea of guilty, but, herein, both the trial court and the CA did not have a
similar circumstance to justify the lenity towards the accused. Secondly, the large number of
Fundador articles confiscated from his house (namely, 241 empty bottles of Fundador, 163 Fundador
boxes, a half sack full of Fundador plastic caps, and two filled bottles of Fundador Brandy) clearly
demonstrated that Batistis had been committing a grave economic offense over a period of time,
thereby deserving for him the indeterminate, rather than the straight and lower, penalty.
ACCORDINGLY, we affirm the decision dated September 13, 2007 rendered in C.A.-G.R. CR No.
30392 entitled People of the Philippines v. Juno Batistis, but modify the penalty to imprisonment
ranging from two years, as minimum, to three years, as maximum, and a fine of P50,000.00.
The accused shall pay the costs of suit.
SO ORDERED.
G.R. No 166995

January 13, 2014

DENNIS T. VILLAREAL, Petitioner,

vs.
CONSUELO C. ALIGA, Respondent.
DECISION
PERALTA, J.:
Challenged in this petition for review on certiorari under Rule 45 of the 1997 Revised Rules of Civil
Procedure (Rules) are the April 27, 2004 Decision and August 10, 2004 Resolution, of the Court of
Appeals (CA) in CA-G.R. R No. 25581entitled People of he Philippines v. Consuelo Cruz Aliga which
acquitted respondent Consuelo C. Aliga (Aliga) from the offense charged and, in effect, reversed and
set aside the July 12, 2001 Decision of the Regional Trial Court RTC), Branch 147, Makati City.
1

On October 31, 1996, an Information was filed against respondent Aliga for the crime of Qualified
Theft thru Falsification of Commercial Document, committed as follows:
That on or about the 30th day of October 1996, in the City of Makati, Philippines, a place within the
jurisdiction of this Honorable Court, the above-named accused, being then an accountant of

Dentrade Inc., herein represented by Dennis T. Villareal, and who has access to the companys
checking accounts did then and there willfully, unlawfully and feloniously with grave abuse of
confidence, with intent [to] gain and without the consent of the owner thereof, take, steal and carry
away from complainants office, United Coconut Planters Bank Check No. HOF 681039 dated
October 24, 1996 in the amount of P5,000.00, once in possession of said check, did then and there
willfully, unlawfully and feloniously falsify the amount by changing it to P65,000.00 and having the
same encashed with the bank, thereafter misappropriate and convert to her own personal use and
benefit the amount of P60,000.00 to the damage and prejudice of the herein complainant, Dentrade
Inc., in the aforementioned amount of P60,000.00.
4

During her arraignment on December 6, 1996, respondent Aliga pleaded not guilty. After the RTC
resolved to deny petitioners motion for issuance of a hold departure order against respondent Aliga
and the latters motion to suspend proceedings, trial on the merits ensued. Both the prosecution and
the defense were able to present the testimonies of their witnesses and their respective
documentary exhibits.
5

The Court of Appeals, substantially adopting the trial courts findings, narrated the relevant facts as
follows:
Apart from the documentary exhibits "A" to "F", the combined testimonies of the prosecution
witnesses Elsa Doroteo, Diosdado Corompido, Yolanda Martirez and NBI agent John Leonard David
tend to establish the following factual milieu:
Complainant Dennis T. Villareal is the President and General Manager of Dentrade, Inc., a
corporation with principal office address at the 7/F Citibank Center 8741 Paseo de Roxas, Makati
City. As a businessman, Villareal maintains checking accounts with the head office of China Banking
Corporation (Chinabank) in Paseo de Roxas and United Coconut Planters Bank (UCPB) in Makati
Avenue, both banks are located in Makati City. He has under his employ, Elsa Doroteo, as executive
secretary, Diosdado Corompido, as messenger, Yolanda Martirez, as chief accountant, [respondent]
Consuelo Cruz Aliga and Annaliza Perez, as accounting clerks. [Respondent] has custody of the
personal checks of Villareal. She prepares the personal checks by typing its contents and submits
them to Villareal for his signature. After the signed checks are delivered to her, she in turn, gives the
checks to the messenger for encashment with the bank.
Sometime in October 1996, Villareals governess asked Doroteo for the payment covering the year
1995 for his childrens teacher in horseback riding. Doroteo replied that the said fees had been paid.
To verify the matter, Doroteo instructed Perez, one of the accounting clerks, to produce the originals
of the returned checks from [the] personal account of Villareal. Upon examining the returned checks,
Doroteo found out that the fees for the horseback riding instructor had indeed been paid and that
there were large encashments reflected on the checks in typewritten form. Doroteo informed
Villareal of her findings. Villareal examined the returned checks and was surprised as he never
authorized the large encashments.
Upon advice of his lawyer, Atty. Victor Lazatin of the ACCRA Law Offices, Mr. Villareal sent a letter to
the National Bureau of Investigation (NBI) asking for assistance in the investigation of the matter
(Exh. "A"). A few days thereafter, NBI agents John Leonard David and Rafael Ragos arrived at the
Dentrade office. They examined the particular checks which involved large amounts and interviewed
Doroteo.

When asked by the two NBI agents, Villareal told them that there were three (3) checks pending for
his signature, UCPB checks, all in petty cash: one check was for P1,000.00, another for P5,000.00,
and the last one forP6,000.00. They were all in typewritten form which [respondent] prepared. As
suggested by the NBI agents, Villareal signed the three (3) checks. Doroteo had the three checks
photocopied then released their originals to [respondent].
On instruction of Villareal, Doroteo and NBI agent David went to UCPB the next day hoping that one
of the checks will be encashed. At or about 3:00 p.m. on that day, Doroteo asked the bank teller if
Villareals three checks were encashed. The bank teller informed Doroteo that UCPB check in the
amount of P65,000.00 was encashed. Doroteo was surprised because she was then holding a
photocopy of the original check for P5,000.00 while she saw the teller holding a check
for P65,000.00 but the check number and date were exactly the same as that of its photocopy.
Obviously, the number "6" was intercalated in the check by adding the said number before the digits
"5,000.00." Upon Doroteos request, the teller gave her a photocopy of the supposedly altered
check.
Doroteo reported back to the Dentrade office and handed to Villareal the photocopy of the check
bearing the amount of P65,000.00. When summoned, [respondent] arrived then executed a
statement voluntarily giving back the amount of P60,000.00 to Villareal in the presence of his
lawyers Lazatin and Vallente, and Doroteo. The said statement was in the handwriting of
[respondent] (Exh. "D"), which reads:
"After being confronted by Mr. Dennis T. Villareal, I am voluntarily surrendering the P60,000.00 as
part of the proceeds of UCPB check # 681039 dated October 30, 1996 as follows (in P1,000.00 bills)
(serial no. of P1,000.00 bills subject of the statement)."
Doroteo photocopied the P1,000.00 bills (Exh. "E"). After [respondent] admitted the taking of the
excess amount of P60,000.00, the NBI agents placed her under arrest and took her to the NBI
detention center.
According to witness Corompido, Villareals messenger, at 10:00 a.m. of October 30, 1996, he was
bound for UCPB, Makati Avenue branch. [Respondent] requested him to pay her "Extelcom" bill and
asked him to meet her at the UCPB bank. After several minutes, the two met at the bank.
[Respondent] handed to Corompido her "Extelcom" bill and one personal check of Villareal in the
amount of P65,000.00. [Respondent] returned to the Dentrade [office]. Corompido gave to the teller
[respondents] "Extelcom" payment and also the personal check of Villareal for P65,000.00. The
teller release the P65,000.00 to Corompido who signed on the stamped portion of the check.
[Respondent] Aliga has a different version for her defense. She claimed that on October 30, 1996 at
around 2:30 p.m., the NBI agents arrested her but they did [not] inform [her] of her constitutional
rights to remain silent and to be assisted by counsel; that she was actually an accounting assistant
to Dentrades chief accountant, Yolanda Martirez, the accounting clerk being Annaliza Perez; that
she was not in charge of Villareals personal checking account, but Martirez; that Perez was the one
in custody of the [checkbooks] pertaining to the personal checking accounts of Villareal with UCPB
and [Chinabank]; that Doroteo was in possession of another [checkbook] and kept it in Villareals
residence.
[Respondent] admitted that the UCPB and Chinabank checks were also used for the replenishment
of the cash advances made by Villareal; that the replenishment was prepared using a typewriter by
Martirez, Perez, Doroteo and herself; that there was no regulation or control mechanism in their

office where the responsibility for preparing any particular check on the personal account of Villareal
could be identified; that the issuance of checks against the personal checking accounts at the UCPB
and Chinabank were frequent, from 5 to 12 checks daily; and that there were no accompanying
vouchers to record the purposes for which the checks were issued; and that it was Martirez who
monitors Villareals personal checks at the UCPB and Chinabank.
7

Additionally, respondent Aliga claimed that Perez, Doroteo, and Martirez are also using typewriter in
the check preparation. Moreover, at the time she was summoned by Villareal inside his office, the
two NBI agents (David and Ragos) and Villareals counsels (Attys. Lazatin and Vallente) were joined
in by NBI Director Toledo. The extent of the NBIs participation is disputed. While respondent
Aliga maintained that she was already arrested by the NBI at the moment she was called to the
office of Villareal, David testified that they were merely silent spectators therein, just witnessing the
confrontation or interview conducted by Villareal and not even talking to respondent Aliga.
8

10

11

The RTC succinctly opined that the evidence of the prosecution is very clear that respondent Aliga
must have been the one who made the intercalation in the subject check, and that even without her
written admission (Exhibit "D"), the evidence presented constitutes proof beyond reasonable doubt.
The July 12, 2001 Decision disposed:
WHEREFORE, in view of the foregoing, the Court, finding the accused CONSUELO CRUZ ALIGA
guilty beyond reasonable doubt of the crime charged, hereby sentences her to suffer an
indeterminate sentence of 14 years, 8 months of reclusion temporal as the minimum to 20 years of
reclusion temporal as the maximum.
It appearing that the amount of P60,000.00 subject of the offense was already returned by the
accused, the Court hereby absolves the accused of civil liability in this case.
SO ORDERED.

12

Respondent Aliga appealed to the CA, which, on April 27, 2004, reversed and set aside the
judgment of the RTC on the grounds that: (1) her admission or confession of guilt before the NBI
authorities, which already qualifies as a custodial investigation, is inadmissible in evidence because
she was not informed of her rights to remain silent and to have competent and independent counsel
preferably of her own choice; and (2) the totality of the circumstantial evidence presented by the
prosecution is insufficient to overcome the presumption of innocence of the accused.
Petitioners motion for reconsideration was denied by the CA on August 10, 2004; hence, this petition
raising the issues for resolution as follows:
I.
THE COURT OF APPEALS GRAVELY ERRED IN DECLARING INADMISSIBLE RESPONDENTS
VOLUNTARY ADMISSION OF GUILT, ON ITS CLEARLY SPECULATIVE AND CONJECTURAL
PREMISE THAT RESPONDENTS FREEDOM OF ACTION WAS IMPAIRED WHEN SHE MADE
THE ADMISSION, CONSIDERING THAT:
A. AS LAID DOWN BY THIS HONORABLE COURT, AN ADMISSION OF GUILT SHIFTS
THE BURDEN TO THE DEFENSE TO SHOW THAT IT WAS EXTRACTED BY FORCE OR
DURESS.

B. CONTRARY TO THE JURISPRUDENTIAL GUIDELINES LAID DOWN BY THIS

HONORABLE COURT, THE COURT OF APPEALS ERRONEOUSLY CONCLUDED THAT
RESPONDENT WAS "EFFECTIVELY PLACED UNDER CUSTODIAL INVESTIGATION" BY
THE SHEER PHYSICAL PRESENCE OF THE NBI AGENTS WHEN THE ADMISSION WAS
MADE. C. RESPONDENTS VOLUNTARY ADMISSION WAS MADE TO A PRIVATE
INDIVIDUAL, I.E., PETITIONER HEREIN.
II.
THE COURT OF APPEALS GRAVELY ERRED, IF NOT ACTED IN EXCESS OF ITS
JURISDICTION, WHEN IT CONCLUDED THAT THE PROSECUTIONS EVIDENCE WAS
INSUFFICIENT TO OVERCOME RESPONDENTS PRESUMPTION OF INNOCENCE,
CONSIDERING THAT:
A. CONTRARY TO THIS HONORABLE COURTS JURISPRUDENTIAL RULING, THE
COURT OF APPEALS ENTIRELY OVERLOOKED THE EVIDENCE ON RECORD AND
EXACTED DIRECT EVIDENCE FROM THE PROSECUTION.
B. THE COURT OF APPEALS ERRONEOUS CONCLUSION THAT RESPONDENT IS
INNOCENT IS BASED ON ITS FINDING OF A SUPPOSED INSUFFICIENCY OF
EVIDENCE WHICH IS CONTRADICTED BY THE EVIDENCE ON RECORD.
C. THE COURT OF APPEALS DEPARTED FROM SETTLED JURISPRUDENCE,
REQUIRING FROM THE PROSECUTION A QUANTUM OF EVIDENCE GREATER THAN
PROOF BEYOND REASONABLE DOUBT, WHEN IT:
1. ERRONEOUSLY RULED THAT THE PROSECUTION FAILED TO DISCOUNT
THE POSSIBILITY THAT SOMEONE ELSE COULD HAVE CAUSED THE
ALTERATION ON THE CHECK; AND
2. FAULTING THE PROSECUTION FOR NOT PRESENTING PETITIONER AS A
WITNESS.
D. THE COURT OF APPEALS GRAVELY ERRED WHEN, BASED ON NOTHING MORE THAN
RESPONDENTS DENIALS, IT DEPARTED FROM THE WELL-SETTLED RULE LAID DOWN BY
THIS HONORABLE COURT THAT THE TRIAL COURTS FINDINGS OF FACT AND
CONCLUSIONS BASED THEREON, AS WELL AS ITS ASSESSMENT OF THE CREDIBILITY OF
THE WITNESSES, ARE CONCLUSIVE UPON APPELLATE COURTS.
13

On the other hand, respondent Aliga countered that:

I.
THE PETITION FOR REVIEW ON CERTIORARI SHOULD BE DISMISSED FOR RAISING ONLY
QUESTIONS OF FACTS.
II.

THE PETITION FOR REVIEW ON CERTIORARI SHOULD BE DISMISSED ON THE GROUND OF

DOUBLE JEOPARDY.
III.
PETITIONER HAS NO STANDING TO FILE THE INSTANT PETITION FOR REVIEW ON
CERTIORARI.
IV.
WITHOUT PREJUDICE TO THE FOREGOING ARGUMENTS, THE PETITION FOR REVIEW ON
CERTIORARI SHOULD BE DISMISSED FOR FAILURE TO SHOW THAT THE COURT OF
APPEALS COMMITTED GRIEVOUS ERROR IN ISSUING THE 27 APRIL 2004 AND 10 AUGUST
2004 DECISIONS; ON THE CONTRARY, THE DECISIONS APPEAR TO BE IN ACCORD WITH
THE FACTS AND THE APPLICABLE LAW AND JURISPRUDENCE.
14

The petition is unmeritorious.

The petition should have been filed
by the State through the OSG
Petitioner took a procedural misstep when he filed the present petition without the representation of
the Office of the Solicitor General (OSG). In Bautista v. Cuneta-Pangilinan, We underscored:
15

x x x The authority to represent the State in appeals of criminal cases before the Supreme Court and
the CA is solely vested in the Office of the Solicitor General (OSG). Section 35 (1), Chapter 12, Title
III, Book IV of the 1987 Administrative Code explicitly provides that the OSG shall represent the
Government of the Philippines, its agencies and instrumentalities and its officials and agents in any
litigation, proceeding, investigation or matter requiring the services of lawyers. It shall have specific
powers and functions to represent the Government and its officers in the Supreme Court and the
CA, and all other courts or tribunals in all civil actions and special proceedings in which the
Government or any officer thereof in his official capacity is a party. The OSG is the law office of the
Government.
To be sure, in criminal cases, the acquittal of the accused or the dismissal of the case against him
can only be appealed by the Solicitor General, acting on behalf of the State. The private complainant
or the offended party may question such acquittal or dismissal only insofar as the civil liability of the
accused is concerned. In a catena of cases, this view has been time and again espoused and
maintained by the Court. In Rodriguez v. Gadiane, it was categorically stated that if the criminal case
is dismissed by the trial court or if there is an acquittal, the appeal on the criminal aspect of the case
must be instituted by the Solicitor General in behalf of the State. The capability of the private
complainant to question such dismissal or acquittal is limited only to the civil aspect of the case. The
same determination was also arrived at by the Court in Metropolitan Bank and Trust Company v.
Veridiano II. In the recent case of Bangayan, Jr. v. Bangayan, the Court again upheld this guiding
principle.
Worthy of note is the case of People v. Santiago, wherein the Court had the occasion to bring this
issue to rest. The Court elucidated:

It is well settled that in criminal cases where the offended party is the State, the interest of the private
complainant or the private offended party is limited to the civil liability. Thus, in the prosecution of the
offense, the complainant's role is limited to that of a witness for the prosecution. If a criminal case is
dismissed by the trial court or if there is an acquittal, an appeal therefrom on the criminal aspect may
be undertaken only by the State through the Solicitor General. Only the Solicitor General may
represent the People of the Philippines on appeal. The private offended party or complainant may
not take such appeal. However, the said offended party or complainant may appeal the civil aspect
despite the acquittal of the accused.
In a special civil action for certiorari filed under Section 1, Rule 65 of the Rules of Court wherein it is
alleged that the trial court committed a grave abuse of discretion amounting to lack of jurisdiction or
on other jurisdictional grounds, the rules state that the petition may be filed by the person aggrieved.
In such case, the aggrieved parties are the State and the private offended party or complainant. The
complainant has an interest in the civil aspect of the case so he may file such special civil action
questioning the decision or action of the respondent court on jurisdictional grounds. In so doing,
complainant should not bring the action in the name of the People of the Philippines. The action may
be prosecuted in [the] name of said complainant.
Thus, the Court has definitively ruled that in a criminal case in which the offended party is the State,
the interest of the private complainant or the private offended party is limited to the civil liability
arising therefrom. If a criminal case is dismissed by the trial court or if there is an acquittal, an appeal
of the criminal aspect may be undertaken, whenever legally feasible, only by the State through the
Solicitor General. As a rule, only the Solicitor General may represent the People of the Philippines
on appeal. The private offended party or complainant may not undertake such appeal.
16

In the case at bar, the petition filed essentially assails the criminal, not the civil, aspect of the CA
Decision. It must even be stressed that petitioner never challenged before the CA, and in this Court,
the RTC judgment which absolved respondent Aliga from civil liability in view of the return of
the P60,000.00 subject matter of the offense on October 30, 1996. Therefore, the petition should
have been filed only by the State through the OSG. Petitioner lacks the personality or legal standing
to question the CA Decision because it is only the OSG which can bring actions on behalf of the
State in criminal proceedings before the Supreme Court and the CA. Unlike in Montaez v.
Cipriano where we adopted a liberal view, the OSG, in its Comment on this case, neither prayed
that the petition be granted nor expressly ratified and adopted as its own the petition for the People
of the Philippines. Instead, it merely begged to excuse itself from filing a Comment due to conflict of
interest and for not having been impleaded in the case.
17

18

A judgment of acquittal may be

assailed only in a petition for certiorari
under Rule 65 of the Rules of Court
Petitioner also committed another procedural blunder. A petition for certiorari under Rule 65 of the
Rules should have been filed instead of herein petition for review on certiorari under Rule 45. The
People may assail a judgment of acquittal only via petition for certiorari under Rule 65 of the Rules. If
the petition, regardless of its nomenclature, merely calls for an ordinary review of the findings of the
court a quo, the constitutional right of the accused against double jeopardy would be violated. The
Court made this clear in People v. Sandiganbayan (First Div.), thus:
19

20

x x x A petition for review on certiorari under Rule 45 of the Rules of Court and a petition for certiorari
under Rule 65 of the Rules of Court are two and separate remedies. A petition under Rule 45 brings
up for review errors of judgment, while a petition for certiorari under Rule 65 covers errors of
jurisdiction or grave abuse of discretion amounting to excess or lack of jurisdiction. Grave abuse of
discretion is not an allowable ground under Rule 45. A petition for review under Rule 45 of the Rules
of Court is a mode of appeal. Under Section 1 of the said Rule, a party aggrieved by the decision or
final order of the Sandiganbayan may file a petition for review on certiorari with this Court:
Section 1. Filing of petition with Supreme Court. - A party desiring to appeal by certiorari from a
judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial
Court, or other courts whenever authorized by law, may file with the Supreme Court a verified
petition for review on certiorari. The petition shall raise only questions of law which must be distinctly
set forth.
However, the provision must be read in relation to Section 1, Rule 122 of the Revised Rules of
Court, which provides that any party may appeal from a judgment or final order "unless the accused
will thereby be placed in double jeopardy." The judgment that may be appealed by the aggrieved
party envisaged in the Rule is a judgment convicting the accused, and not a judgment of acquittal.
The State is barred from appealing such judgment of acquittal by a petition for review.
Section 21, Article III of the Constitution provides that "no person shall be twice put in jeopardy of
punishment for the same offense." The rule is that a judgment acquitting the accused is final and
immediately executory upon its promulgation, and that accordingly, the State may not seek its review
without placing the accused in double jeopardy. Such acquittal is final and unappealable on the
ground of double jeopardy whether it happens at the trial court or on appeal at the CA. Thus, the
State is proscribed from appealing the judgment of acquittal of the accused to this Court under Rule
45 of the Rules of Court.
xxxx
A judgment of acquittal may be assailed by the People in a petition for certiorari under Rule 65 of the
Rules of Court without placing the accused in double jeopardy. However, in such case, the People is
burdened to establish that the court a quo, in this case, the Sandiganbayan, acted without
jurisdiction or grave abuse of discretion amounting to excess or lack of jurisdiction. Grave abuse of
discretion generally refers to capricious or whimsical exercise of judgment as is equivalent to lack of
jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of a
positive duty or virtual refusal to perform a duty imposed by law, or to act in contemplation of law or
where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.
No grave abuse of discretion may be attributed to a court simply because of its alleged
misapplication of facts and evidence, and erroneous conclusions based on said evidence. Certiorari
will issue only to correct errors of jurisdiction, and not errors or mistakes in the findings and
conclusions of the trial court.
21

The nature of certiorari action was expounded in People v. Court of Appeals (Fifteenth Div.):

22

x x x Certiorari alleging grave abuse of discretion is an extraordinary remedy. Its use is confined to
extraordinary cases wherein the action of the inferior court is wholly void. Its aim is to keep the
inferior court within the parameters of its jurisdiction or to prevent it from committing such a grave
abuse of discretion amounting to lack or excess of jurisdiction. No grave abuse of discretion may be

attributed to the court simply because of its alleged misappreciation of facts and evidence. While
certiorari may be used to correct an abusive acquittal, the petitioner in such extraordinary
proceeding must clearly demonstrate that the lower court blatantly abused its authority to a point so
grave as to deprive it of its very power to dispense justice.
23

and further in First Corporation v. Former Sixth Division of the Court of Appeals:

24

It is a fundamental aphorism in law that a review of facts and evidence is not the province of the
extraordinary remedy of certiorari, which is extra ordinem beyond the ambit of appeal. In certiorari
proceedings, judicial review does not go as far as to examine and assess the evidence of the parties
and to weigh the probative value thereof. It does not include an inquiry as to the correctness of the
evaluation of evidence. x x x It is not for this Court to re-examine conflicting evidence, re-evaluate
the credibility of the witnesses or substitute the findings of fact of the court a quo.
25

The case does not fall within the

exception to rule on double jeopardy
Indeed, a judgment of acquittal, whether ordered by the trial or the appellate court, is final,
unappealable, and immediately executory upon its promulgation. The rationale for the rule is
elucidated in the oft-cited case of People v. Hon. Velasco:
26

27

The fundamental philosophy highlighting the finality of an acquittal by the trial court cuts deep into
"the humanity of the laws and in a jealous watchfulness over the rights of the citizen, when brought
in unequal contest with the State. x x x." Thus, Green expressed the concern that "(t)he underlying
idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the
State with all its resources and power should not be allowed to make repeated attempts to convict
an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal
and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the
possibility that even though innocent, he may be found guilty."
It is axiomatic that on the basis of humanity, fairness and justice, an acquitted defendant is entitled to
the right of repose as a direct consequence of the finality of his acquittal. The philosophy underlying
this rule establishing the absolute nature of acquittals is "part of the paramount importance criminal
justice system attaches to the protection of the innocent against wrongful conviction." The interest in
the finality-of-acquittal rule, confined exclusively to verdicts of not guilty, is easy to understand: it is a
need for "repose," a desire to know the exact extent of one's liability. With this right of repose, the
criminal justice system has built in a protection to insure that the innocent, even those whose
innocence rests upon a jurys leniency, will not be found guilty in a subsequent proceeding.
Related to his right of repose is the defendants interest in his right to have his trial completed by a
particular tribunal. This interest encompasses his right to have his guilt or innocence determined in a
single proceeding by the initial jury empanelled to try him, for societys awareness of the heavy
personal strain which the criminal trial represents for the individual defendant is manifested in the
willingness to limit Government to a single criminal proceeding to vindicate its very vital interest in
enforcement of criminal laws. The ultimate goal is prevention of government oppression; the goal
finds its voice in the finality of the initial proceeding. As observed in Lockhart v. Nelson, "(t)he
fundamental tenet animating the Double Jeopardy Clause is that the State should not be able to
oppress individuals through the abuse of the criminal process." Because the innocence of the

accused has been confirmed by a final judgment, the Constitution conclusively presumes that a
second trial would be unfair.
28

People v. Court of Appeals (Fifteenth Div.) also stated:

29

x x x The finality-of-acquittal doctrine has several avowed purposes. Primarily, it prevents the State
from using its criminal processes as an instrument of harassment to wear out the accused by a
multitude of cases with accumulated trials. It also serves the additional purpose of precluding the
State, following an acquittal, from successively retrying the defendant in the hope of securing a
conviction. And finally, it prevents the State, following conviction, from retrying the defendant again in
the hope of securing a greater penalty. In People v. Velasco, we stressed that an acquitted
defendant is entitled to the right of repose as a direct consequence of the finality of his acquittal x x
x.
30

However, the rule against double jeopardy is not without exceptions, which are: (1) Where there has
been deprivation of due process and where there is a finding of a mistrial, or (2) Where there has
been a grave abuse of discretion under exceptional circumstances. Unfortunately for petitioner, We
find that these exceptions do not exist in this case.
31

First, there is no deprivation of due process or a mistrial. In fact, petitioner did not make any
allegation to that effect. What the records show is that during the trial, both parties had more than
sufficient occasions to be heard and to present their evidence. The same is true during the appeal
before the CA. The State, represented by the OSG, was not deprived of a fair opportunity to prove
its case.
1wphi1

And second, no grave abuse of discretion could be attributed to the CA. It could not be said that its
judgment was issued without jurisdiction, and, for this reason, void. Again, petitioner did not even
allege that the CA gravely abused its discretion. Instead, what he asserted was that the CA "gravely
erred" in the evaluation and assessment of the evidence presented by the parties. Certainly, what he
questioned was the purported errors of judgment or those involving misappreciation of evidence or
errors of law, which, as aforesaid, cannot be raised and be reviewed in a Rule 65 petition. To repeat,
a writ of certiorari can only correct errors of jurisdiction or those involving the commission of grave
abuse of discretion, not those which call for the evaluation of evidence and factual findings.
x x x Any error committed in the evaluation of evidence is merely an error of judgment that cannot be
remedied by certiorari. An error of judgment is one in which the court may commit in the exercise of
its jurisdiction. An error of jurisdiction is one where the act complained of was issued by the court
without or in excess of jurisdiction, or with grave abuse of discretion which is tantamount to lack or in
excess of jurisdiction and which error is correctible only by the extraordinary writ of certiorari.
Certiorari will not be issued to cure errors by the trial court in its appreciation of the evidence of the
parties, and its conclusions anchored on the said findings and its conclusions of law. Since no error
of jurisdiction can be attributed to public respondent in her assessment of the evidence, certiorari will
not lie.
32

Upon perusal of the records, it is Our considered view that the conclusions arrived at by the CA
cannot, by any measure, be characterized as capricious, whimsical or arbitrary. While it may be
argued that there have been instances where the appreciation of facts might have resulted from
possible lapses in the evaluation of the evidence, nothing herein detracts from the fact that relevant
and material evidence was scrutinized, considered and evaluated as proven by the CAs lengthy

discussion of its opinion. We note that the petition basically raises issues pertaining to alleged errors
of judgment not errors of jurisdiction which is tantamount to an appeal contrary to the express
injunction of the Constitution the Rules of Court and prevailing jurisprudence. Conformably then we
need not embark upon review of the factual and evidentiary issues raised by petitioner as these are
obviously not within the realm of Our jurisdiction.
WHEREFORE, the instant petition is DISMISSED for lack of merit. The acquittal of herein
respondent Consuelo C. Aliga by the Court of Appeals in its April 27, 2004 Decision and August 10,
2004 Resolution in CA-G.R. CR No. 25581 entitled People of the Philippines v. Consuelo Cruz Aliga
is AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 206513, October 20, 2015
MUSTAPHA DIMAKUTA Y MARUHOM, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
The Court is now faced with one of the predicaments I discussed in my Dissenting and Concurring Opinion
in Colinares v. People.1 The question regarding the application of the Probation Law is again inescapably
intertwined with the present petition. Consequently, I must reiterate my assertions and arguments
in Colinares to the case at bar.
In the present controversy, petitioner Mustapha Dimakuta y Maruhom alias Boyet was indicted for Violation
of Section 5 Paragraph (b), Article III of Republic Act (R.A.) No. 7610 or the Special Protection of Children
Against Abuse, Exploitation and Discriminatory Act. The Information reads:
That on or about the 24th day of September 2005, in the City of Las Pias, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd designs, did then and there
willfully, unlawfully and feloniously commit a lascivious conduct upon the person of one AAA, who was then a
sixteen (16) year old minor, by then and there embracing her, touching her breast and private part against
her will and without her consent and the act complained of is prejudicial to the physical and psychological
development of the complainant.2
ChanRoblesVirtualawlibrary

After trial, the RTC promulgated its Decision3 which convicted petitioner of the crime charged and sentenced
him to suffer an indeterminate penalty of imprisonment ranging from ten (10) years ofprision mayor, as
minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum,
with the accessory penalty of perpetual absolute disqualification. In addition, he was directed to pay a fine of
P20,000.00, civil indemnity of P25,000.00, and moral damages of P25,000.00. 4
Feeling aggrieved, petitioner elevated the case to the Court of Appeals (CA) arguing, among other things,
that even assuming he committed the acts imputed, still there is no evidence showing that the same were
done without the victim's consent or through force, duress, intimidation or violence upon her. Surprisingly,
when asked to comment on the appeal, the Office of the Solicitor General (OSG), relying heavily on People
v. Abello,5 opined that petitioner should have been convicted only of Acts of Lasciviousness under Article 336
of the Revised Penal Code (RPC) in view of the prosecution's failure to establish that the lascivious acts were
attended by force or coercion because the victim was asleep at the time the alleged acts were committed.
On June 28, 2012, the CA rendered a Decision6 adopting the recommendation of the OSG. In modifying the
RTC Decision, petitioner was found guilty of Acts of Lasciviousness under Article 336 of the RPC and was
sentenced to suffer the indeterminate penalty of six (6) months of arresto mayor, as minimum, to four (4)

years and two (2) months of prision correctional, as maximum. Likewise, he was ordered to pay P20,000.00
as civil indemnity and P30,000.00 as moral damages.
Petitioner received a copy of CA Decision on July 6, 2012. 7 Instead of further appealing the case, he filed on
July 23, 2012 before the CA a manifestation with motion to allow him to apply for probation upon remand of
the case to the RTC.8 Petitioner invoked the case of Colinares v. People9 which allowed petitioner therein to
apply for probation after his sentence was later reduced on appeal by the Supreme Court.
The CA issued a Resolution on September 3, 2012 denying petitioner's manifestation with motion. 10 It was
ruled that Colinares is inapplicable since petitioner therein raised as sole issue the correctness of the penalty
imposed and claimed that the evidence presented warranted only a conviction for the lesser offense.
Instead, the appellate court viewed as appropriate the case of Lagrosa v. People,11wherein the application
for probation was denied because petitioners therein put in issue on appeal the merits of their conviction and
did not simply assail the propriety of the penalties imposed.
Petitioner filed a motion for reconsideration,12 but it was denied in a Resolution13 dated March 13, 2013;
hence, this petition.
The petition should be denied.
At the outset, tracing the evolution of the present Probation Law is warranted in order to better understand
and apply the wisdom of its framers to cases invoking its application.
In this jurisdiction, the concept of probation was introduced during the American colonial period. 14For
juvenile delinquents, Act No. 320315 was enacted on December 3, 1924. It was later amended by Act Nos.
3309,16 3559,17 and 3725.18 As to offenders who are eighteen years old and above, Act No. 4221 19 was
passed by the legislature and took effect on August 7, 1935. Said Act allowed defendants who are convicted
and sentenced by a Court of First Instance or by the Supreme Court on appeal, except those who are
convicted of offenses enumerated in Section 8 thereof,20 to be placed on probation upon application after the
sentence has become final and before its service has begun. 21However, We declared in People v. Vera22 that
Act No. 4221 is unconstitutional and void as it constitutes an improper and unlawful delegation of legislative
authority to the provincial boards.
During the martial law period, then President Ferdinand E. Marcos issued Presidential Decree (P.D.) No.
96823 on July 24, 1976. Originally, P.D. No. 968 allowed the filing of an application for probation at any time
after the defendant had been convicted and sentenced. Section 4 of which provides:
SEC. 4. Grant of Probation. - Subject to the provisions of this Decree, the court may,after it shall have
convicted and sentenced a defendant and upon application at any time of said defendant, suspend
the execution of said sentence and place the defendant on probation for such period and upon such terms
and conditions as it may deem best.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An
application for probation shall be filed with the trial court, with notice to the appellate court if an appeal has
been taken from the sentence of conviction. The filing of the application shall be deemed a waiver of the
right to appeal, or the automatic withdrawal of a pending appeal. An order granting or denying probation
shall not be appealable.24
Later, the filing of an application for probation pending appeal was still allowed when Section 4 of P.D. No.
968 was amended by P.D. No. 125725 on December 1, 1977 by providing that such application may be made
after the defendant had been convicted and sentenced but before he begins to serve his sentence. Thus:
SEC. 4. Grant of Probation. - Subject to the provisions of this Decree, the court may,after it shall have
convicted and sentenced a defendant but before he begins to serve his sentence and upon his
application, suspend the execution of said sentence and place the defendant on probation for such period
and upon such terms and conditions as it may deem best.
The prosecuting officer concerned shall be notified by the court of the filing of the application for probation
and he may submit his comment on such application within ten days from receipt of the notification.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine with subsidiary

imprisonment in case of insolvency. An application for probation shall be filed with the trial court, with notice
to the appellate court if an appeal has been taken from the sentence of conviction. The filing of the
application shall be deemed a waiver of the right to appeal, or the automatic withdrawal of a pending
appeal. In the latter case, however, if the application is filed on or after the date of the judgment of the
appellate court, said application shall be acted upon by the trial court on the basis of the judgment of the
appellate court.
An order granting or denying probation shall not be appealable. 26
On October 5, 1985, Section 4 was subsequently amended by P.D. No. 1990. 27 Henceforth, the policy has
been to allow convicted and sentenced defendant to apply for probation within the 15-day period for
perfecting an appeal. As modified, Section 4 of the Probation Law now reads:
SEC. 4. Grant of Probation. - Subject to the provisions of this Decree, the trial court may, after it shall
have convicted and sentenced a defendant and upon application by said defendant within the
period for perfecting an appeal, suspend the execution of the sentence and place the defendant on
probation for such period and upon such terms and conditions as it may deem best; Provided, that no
application for probation shall be entertained or granted if the defendant has perfected the appeal from the
judgment of conviction.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An
application for probation shall be filed with the trial court. The filing of the application shall be deemed a
waiver of the right to appeal.
An order granting or denying probation shall not be appealable. 28
The reason for the disallowance may be inferred from the preamble of P.D. No. 1990, thus:
WHEREAS, it has been the sad experience that persons who are convicted of offenses and who may be
entitled to probation still appeal the judgment of conviction even up to the Supreme Court, only to pursue
their application for probation when their appeal is eventually dismissed;
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WHEREAS, the process of criminal investigation, prosecution, conviction and appeal entails too much time
and effort, not to mention the huge expenses of litigation, on the part of the State;
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WHEREAS, the time, effort and expenses of the Government in investigating and prosecuting accused
persons from the lower courts up to the Supreme Court, are oftentimes rendered nugatory when, after the
appellate Court finally affirms the judgment of conviction, the defendant applies for and is granted
probation;
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WHEREAS, probation was not intended as an escape hatch and should not be used to obstruct and delay
the administration of justice, but should be availed of at the first opportunity by offenders who are willing to
be reformed and rehabilitated;
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WHEREAS, it becomes imperative to remedy the problems abovementioned confronting our probation
system[.]
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Observing the developments in our Probation Law, the Court settled in Llamado v. Court of Appeals:29
Examination of Section 4, after its amendment by P.D. No. 1257, reveals that it had established a prolonged
but definite period during which an application for probation may be granted by the trial court. That period
was: "After [the trial court] shall have convicted and sentenced a defendant but before he begins to serve
his sentence." Clearly, the cut-off time - commencement of service of sentence - takes place not only after
an appeal has been taken from the sentence of conviction, but even after judgment has been rendered by
the appellate court and after judgment has become final. Indeed, in this last situation, Section 4, as
amended by P.D. No. 1257 provides that "the application [for probation] shall be acted upon by the trial
court on the basis of the judgment of the appellate court"; for the appellate court might have increased or
reduced the original penalty imposed by the trial court, x x x
xxxx

In sharp contrast with Section 4 as amended by PD No. 1257, in its present form, Section 4 establishes a
much narrower period during which an application for probation may be filed with the trial court: "after [the
trial court] shall have convicted and sentenced a defendant and - within the period for perfecting an
appeal -." As if to provide emphasis, a new proviso was appended to the first paragraph of Section 4 that
expressly prohibits the grant of an application for probation "if the defendant has perfected an appeal from
the judgment of conviction." It is worthy of note too that Section 4 in its present form has dropped the
phrase which said that the filing of an application for probation means "the automatic withdrawal of
a pending appeal." The deletion is quite logical since an application for probation can no longer be filed once
an appeal is perfected; there can, therefore, be no pending appeal that would have to be withdrawn.
xxxx
We find ourselves unable to accept the eloquently stated arguments of petitioner's counsel and the
dissenting opinion. We are unable to persuade ourselves that Section 4 as it now stands, in authorizing the
trial court to grant probation "upon application by [the] defendant within the period for perfecting an appeal"
and in reiterating in the proviso that
"no application for probation shall be entertained or granted if the defendant has perfected an appeal from
the judgment of conviction."
did not really mean to refer to the fifteen-day period established, as indicated above, by B.P. Big. 129, the
Interim Rules and Guidelines Implementing B.P. Big. 129 and the 1985 Rules on Criminal Procedure, but
rather to some vague and undefined time, i.e., "the earliest opportunity" to withdraw the defendant's
appeal. The whereas clauses invoked by petitioner did not, of course, refer to the fifteen-day period. There
was absolutely no reason why they should have so referred to that period for the operative words of Section
4 already do refer, in our view, to such fifteen-day period. Whereasclauses do not form part of a statute,
strictly speaking; they are not part of theoperative language of the statute. Nonetheless, whereas clauses
may be helpful to the extent they articulate the general purpose or reason underlying a new enactment, in
the present case, an enactment which drastically but clearly changed the substantive content of Section 4
existing before the promulgation of P.D. No. 1990. Whereasclauses, however, cannot control the specific
terms of the statute; in the instant case, the whereas clauses of P.D. No. 1990 do not purport to control or
modify the terms of Section 4 as amended. Upon the other hand, the term "period for perfecting an appeal"
used in Section 4 may be seen to furnish specification for the loose language "first opportunity" employed in
the fourth whereas clause. "Perfection of an appeal" is, of course, a term of art but it is a term of art widely
understood by lawyers and judges and Section 4 of the Probation Law addresses itself essentially to judges
and lawyers. "Perfecting an appeal" has no sensible meaning apart from the meaning given to those words
in our procedural law and so the law-making agency could only have intended to refer to the meaning of
those words in the context of procedural law.30
In Sable v. People, et al.,31 this Court stated that Section 4 of the Probation Law was amended precisely to
put a stop to the practice of appealing from judgments of conviction even if the sentence is probationable,
for the purpose of securing an acquittal and applying for the probation only if the accused fails in his
bid.32 The Probation Law "expressly requires that an accused must not have appealed his conviction before
he can avail himself of probation. This outlaws the element of speculation on the part of the accused - to
wager on the result of his appeal -that when his conviction is finally affirmed on appeal, the moment of truth
well nigh at hand and the service of his sentence inevitable, he now applies for probation as an 'escape
hatch,' thus rendering nugatory the appellate court's affirmance of his conviction." 33
Verily, Section 4 of the Probation Law provides that the application for probation must be filed with the trial
court within the 15-day period for perfecting an appeal. The need to file it within such period is intended to
encourage offenders, who are willing to be reformed and rehabilitated, to avail themselves of probation at
the first opportunity.34 If the application for probation is filed beyond the 15-day period, then the judgment
becomes final and executory and the lower court can no longer act on the application for probation. On the
other hand, if a notice of appeal is perfected, the trial court that rendered the judgment of conviction is
divested of any jurisdiction to act on the case, except the execution of the judgment when it has become
final and executory.
In view of the latest amendment to Section
entertained or granted if the defendant has
jurisprudence35 treats appeal and probation
about it.36 Indeed, the law is very clear and

4 of the Probation Law that "no application for probation shall be

perfected an appeal from the judgment of conviction," prevailing
as mutually exclusive remedies because the law is unmistakable
a contrary interpretation would counter its envisioned mandate.

Courts have no authority to invoke "liberal interpretation" or "the spirit of the law" where the words of the
statute themselves, and as illuminated by the history of that statute, leave no room for doubt or
interpretation.37 To be sure, the remedy of convicted felons who want to avail of the benefits of probation
even after the remedy of an appeal is to go to the Congress and ask for the amendment of the law. To
surmise a converse construal of the provision would be dangerously encroaching on the power of the
legislature to enact laws and is tantamount to judicial legislation.
With due respect, however, to the ponente and the majority opinion in Colinares38 the application of the
Probation Law in the said case deserves a second hard look so as to correct the mistake in the application of
the law in that particular case and in similar cases which will be filed before the courts and inevitably
elevated to Us like this petition.
To refresh, Colinares concluded that since the trial court imposed a penalty beyond what is allowed by the
Probation Law, albeit erroneously, the accused was deprived of his choice to apply for probation and instead
was compelled to appeal the case. The reprehensible practice intended to be avoided by the law was,
therefore, not present when he appealed the trial court's decision. Taking into account that the accused
argued in his appeal that the evidence presented against him warranted his conviction only for attempted,
not frustrated, homicide, the majority of the Court opined that the accused had purposely sought to bring
down the impossible penalty in order to allow him to apply for probation.
It was obvious then, as it is now, that the accused in Colinares should not have been allowed the benefit of
probation. As I have previously stated and insisted upon, probation is not a right granted to a convicted
offender; it is a special privilege granted by the State to a penitent qualified offender,39who does not possess
the disqualifications under Section 9 of P.D. No. 968, as amended. 40 Likewise, the Probation Law is not a
penal law for it to be liberally construed to favor the accused. 41
In the American law paradigm, probation is considered as an act of clemency and grace, not a matter of
right.42 It is a privilege granted by the State, not a right to which a criminal defendant is entitled. 43In City of
Aberdeen v. Regan,44 it was pronounced that:
The granting of a deferred sentence and probation, following a plea or verdict of guilty, is
a rehabilitative measure and, as such, is not a matter of right but is a matter of grace, privilege, or
clemency granted to the deserving.
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As such, even in the American criminal justice model, probation should be granted only to the deserving or,
in our system, only to qualified "penitent offenders" who are willing to be reformed and rehabilitated.
Corollarily, in this jurisdiction, the wisdom behind the Probation Law is outlined in its stated purposes, to wit:
(a) promote the correction and rehabilitation of an offender by providing him with individualized
treatment;
(b) provide an opportunity for the reformation of a penitent offender which might be less probable if he
were to serve a prison sentence; and
(c) prevent the commission of offenses.45
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As I have previously indicated in Colinares, if this Court will adopt as jurisprudential doctrine the opinion that
an accused may still be allowed to apply for probation even if he has filed a notice of appeal, it must be
categorically stated that such appeal must be limited to the following grounds:
1. When the appeal is merely intended for the correction of the penalty imposed by the lower court, which
when corrected would entitle the accused to apply for probation; and
2. When the appeal is merely intended to review the crime for which the accused was convicted and that the
accused should only be liable to the lesser offense which is necessarily included in the crime for which he
was originally convicted and the proper penalty imposable is within the probationable period.
In both instances, the penalty imposed by the trial court for the crime committed by the accused is more
than six years; hence, the sentence disqualifies the accused from applying for probation. The accused should
then be allowed to file an appeal under the afore-stated grounds to seek a review of the crime and/or
penalty imposed by the trial court. If, on appeal, the appellate court finds it proper to modify the crime
and/or the penalty imposed, and the penalty finally imposed is within the probationable period, the accused
should still be allowed to apply for probation.

In addition, before an appeal is filed based on the grounds enumerated above, the accused should first file a
motion for reconsideration of the decision of the trial court anchored on the above-stated grounds and
manifest his intent to apply for probation if the motion is granted. The motion for reconsideration will give
the trial court an opportunity to review and rectify any errors in its judgment, while the manifestation of the
accused will immediately show that he is agreeable to the judgment of conviction and does not intend to
appeal from it, but he only seeks a review of the crime and/or penalty imposed, so that in the event that the
penalty will be modified within the probationable limit, he will immediately apply for probation. Without such
motion for reconsideration, the notice of appeal should be denied outright.
The notice of appeal should contain the following averments:
(1) that an earlier motion for reconsideration was filed but was denied by the trial court;

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(2) that the appeal is only for reviewing the penalty imposed by the lower court or the conviction should
only be for a lesser crime necessarily included in the crime charged in the information; and
(3) that the accused-appellant is not seeking acquittal of the conviction.
To note, what Section 4 of the Probation Law prohibits is an appeal from the judgment of conviction, which
involves a review of the merits of the case and the determination of whether the accused is entitled to
acquittal. However, under the recommended grounds for appeal which were enumerated earlier, the purpose
of the appeal is not to assail the judgment of conviction but to question only the propriety of the sentence,
particularly the penalty imposed or the crime for which the accused was convicted, as the accused intends to
apply for probation upon correction of the penalty or conviction for the lesser offense. If the CA finds it
proper to modify the sentence, and the penalty finally imposed by the appellate court is within the
probationable period, or the crime for which the accused is eventually convicted imposes a probationable
penalty, application for probation after the case is remanded to the trial court for execution should be
allowed.
It is believed that the recommended grounds for appeal do not contravene Section 4 of the Probation Law,
which expressly prohibits only an appeal from the judgment of conviction. In such instances, the ultimate
reason of the accused for filing the appeal based on the afore-stated grounds is to determine whether he
may avail of probation based on the review by the appellate court of the crime and/or penalty imposed by
the trial court. Allowing the afore-stated grounds for appeal would give an accused the opportunity to apply
for probation if his ground for appeal is found to be meritorious by the appellate court, thus, serving the
purpose of the Probation Law to promote the reformation of a penitent offender outside of prison.
On the other hand, probation should not be granted to the accused in the following instances:
1. When the accused is convicted by the trial court of a crime where the penalty imposed is within the
probationable period or a fine, and the accused files a notice of appeal; and
2. When the accused files a notice of appeal which puts the merits of his conviction in issue, even if there is
an alternative prayer for the correction of the penalty imposed by the trial court or for a conviction to a
lesser crime, which is necessarily included in the crime in which he was convicted where the penalty is within
the probationable period.
Both instances violate the spirit and letter of the law, as Section 4 of the Probation Law prohibits granting an
application for probation if an appeal from the sentence of conviction has been perfected by the accused.
In this case, petitioner appealed the trial court's judgment of conviction before the CA alleging that it was
error on the part of the RTC to have found him guilty of violating Section 5(b), Article III of R.A. No. 7610.
He argued that the RTC should not have given much faith and credence to the testimony of the victim
because it was tainted with inconsistencies. Moreover, he went on to assert that even assuming he
committed the acts imputed on him, still there was no evidence showing that the lascivious acts were
committed without consent or through force, duress, intimidation or violence because the victim at that time
was in deep slumber. It is apparent that petitioner anchored his appeal on a claim of innocence and/or lack
of sufficient evidence to support his conviction of the offense charged, which is clearly inconsistent with the
tenor of the Probation Law that only qualified penitent offender are allowed to apply for probation. The CA,
therefore, did not err in applying the similar case of Lagrosa v. People46 wherein the protestations of

petitioners therein did not simply assail the propriety of the penalties imposed but meant a profession of
guiltlessness, if not complete innocence.
To be sure, if petitioner intended in the first instance to be entitled to apply for probation he should have
admitted his guilt and buttressed his appeal on a claim that the penalty imposed by the RTC was erroneous
or that he is only guilty of a lesser offense necessarily included in the crime for which he was originally
convicted. Unfortunately for him, he already perfected his appeal and it is late in the day to avail the
benefits of probation despite the imposition of the CA of a probationable penalty.
As regards the CA Decision convicting petitioner of the crime of Acts of Lasciviousness under Article 336 of
the RPC, such conclusion clearly contravenes the law and existing jurisprudence.
Petitioner was charged and convicted by the trial court with violation of Section 5(b), Article III of R.A. No.
7610 based on the complaint of a sixteen (16)-year-old girl for allegedly molesting her by touching her
breast and vagina while she was sleeping. The provision reads:
SEC. 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for money,
profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group,
indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and
other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the
following:
xxxx
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in
prostitution or subject to other sexual abuse; Provided, That when the victim is under twelve (12) years of
age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No.
3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may
be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age
shall be reclusion temporal in its medium period; x x x (Emphasis supplied)
The elements of sexual abuse are as follows:
1. The accused commits the act of sexual intercourse or lascivious conduct.
2. The said act is performed with a child exploited in prostitution or subjected to sexual abuse.
3. The child, whether male or female, is below 18 years of age. 47
Under Section 5, Article III of R.A. No. 7610, a child is deemed subjected to other sexual abuse when he or
she indulges in lascivious conduct under the coercion or influence of any adult. 48 This statutory provision
must be distinguished from Acts of Lasciviousness under Articles 336 and 339 of the RPC. As defined in
Article 336 of the RPC, Acts of Lasciviousness has the following elements:
(1) That the offender commits any act of lasciviousness or lewdness;
(2) That it is done under any of the following circumstances:

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a.

By using force or intimidation; or

b.

When the offended party is deprived of reason or otherwise unconscious; or

c.

When the offended party is under 12 years of age; and

(3) That the offended party is another person of either sex. 49

Article 339 of the RPC likewise punishes acts of lasciviousness committed with the consent of the offended
party if done by the same persons and under the same circumstances mentioned in Articles 337 and 338 of
the RPC, to wit:

1. if committed against a virgin over twelve years and under eighteen years of ageby any person in
public authority, priest, home-servant, domestic, guardian, teacher, or any person who, in any capacity, shall
be entrusted with the education or custody of the woman; or
2. if committed by means of deceit against a woman who is single or a widow of good reputation, over
twelve but under eighteen years of age.
Therefore, if the victim of the lascivious acts or conduct is over 12 years of age and under eighteen (18)
years of age, the accused shall be liable for:
1. Other acts of lasciviousness under Art. 339 of the RPC, where the victim is a virginand consents to the
lascivious acts through abuse of confidence or when the victim issingle or a widow of good
reputation and consents to the lascivious acts through deceit, or;
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2. Acts of lasciviousness under Art. 336 if the act of lasciviousness is not covered by lascivious conduct as
defined in R.A. No. 7610. In case the acts of lasciviousness is covered by lascivious conduct under R.A. No.
7610 and it is done through coercion or influence, which establishes absence or lack of consent, then Art.
336 of the RPC is no longer applicable
3. Section 5(b), Article III of R.A. No. 7610, where there was no consent on the part of the victim to the
lascivious conduct, which was done through the employment of coercion or influence. The offender may
likewise be liable for sexual abuse under R.A. No. 7610 if the victim is at least eighteen (18) years and she
is unable to fully take care of herself or protect herself from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or condition. 50
Article 226-A, paragraph 2 of the RPC, punishes inserting of the penis into another person's mouth or anal
orifice, or any instrument or object, into the genital or anal orifice of another person if the victim did not
consent either it was done through force, threat or intimidation; or when the victim is deprived of reason or
is otherwise unconscious; or by means of fraudulent machination or grave abuse of authority as sexual
assault as a form of rape. However, in instances where the lascivious conduct is covered by the definition
under R.A. No. 7610, where the penalty is reclusion temporalmedium, and the act is likewise covered by
sexual assault under Article 266-A, paragraph 2 of the RPC, which is punishable by prision mayor, the
offender should be liable for violation of Section 5(b), Article III of R.A. No. 7610, where the law provides for
the higher penalty of reclusion temporalmedium, if the offended party is a child victim. But if the victim is at
least eighteen (18) years of age, the offender should be liable under Art. 266-A, par. 2 of the RPC and not
R.A. No. 7610, unless the victim is at least eighteen (18) years and she is unable to fully take care of herself
or protect herself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental
disability or condition, in which case, the offender may still be held liable for sexual abuse under R.A. No.
7610.
There could be no other conclusion, a child is presumed by law to be incapable of giving rational consent to
any lascivious act, taking into account the constitutionally enshrined State policy to promote the physical,
moral, spiritual, intellectual and social well-being of the youth, as well as, in harmony with the foremost
consideration of the child's best interests in all actions concerning him or her.51 This is equally consistent
with the with the declared policy of the State to provide special protection to children from all forms
of abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to their
development; provide sanctions for their commission and carry out a program for prevention and deterrence
of and crisis intervention in situations of child abuse, exploitation, and discrimination. 52 Besides, if it was the
intention of the framers of the law to make child offenders liable only of Article 266-A of the RPC, which
provides for a lower penalty than R.A. No. 7610, the law could have expressly made such statements.
As correctly found by the trial court, all the elements of sexual abuse under Section 5(b), Article III of R.A.
No. 7610 are present in the case at bar.
First, petitioner's lewd advances of touching the breasts and vagina of his hapless victim constitute
lascivious conduct as defined in Section 32, Article XIII of the Implementing Rules and Regulations (IRR) of
R.A. No. 7610:
[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner
thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person,
whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or

gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic
area of a person.53
Second, petitioner clearly has moral ascendancy over the minor victim not just because of his relative
seniority but more importantly due to the presumed presence of mutual trust and confidence between them
by virtue of an existing employment relationship, AAA being a domestic helper in petitioner's household.
Notably, a child is considered as sexually abused under Section 5(b) of R.A. No. 7610 when he or she is
subjected to lascivious conduct under the coercion or influence of any adult. Intimidation need not
necessarily be irresistible. It is sufficient that some compulsion equivalent to intimidation annuls or subdues
the free exercise of the will of the offended party.54 The law does not require physical violence on the person
of the victim; moral coercion or ascendancy is sufficient. 55 On this point, Caballo v. People56 explicated:
As it is presently worded, Section 5, Article III of RA 7610 provides that when a child indulges in sexual
intercourse or any lascivious conduct due to the coercion or influence of any adult, the child is
deemed to be a "child exploited in prostitution and other sexual abuse." In this manner, the law is
able to act as an effective deterrent to quell all forms of abuse, neglect, cruelty, exploitation and
discrimination against children, prejudicial as they are to their development.
In this relation, case law further clarifies that sexual intercourse or lascivious conduct under the coercion or
influence of any adult exists when there is some form of compulsion equivalent to intimidation which
subdues the free exercise of the offended party's free will. Corollary thereto, Section 2(g) of the Rules
on Child Abuse Cases conveys that sexual abuse involves the element of influence which manifests in
a variety of forms. It is defined as:
The employment, use, persuasion, inducement, enticement or coercion of a child to engage in, or assist
another person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or
incest with children.
To note, the term "influence" means the "improper use of power or trust in any way that deprives a person
of free will and substitutes another's objective." Meanwhile, "coercion" is the "improper use of x x x power to
compel another to submit to the wishes of one who wields it." 57
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Finally, the victim is 16 years of age at the time of the commission of the offense. Under Section 3 (a) of
R.A. No. 7610, "children" refers to "persons below eighteen (18) years of age or those over but unable to
fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or condition."
The decision of the trial court finding the petitioner guilty of Violation of Section 5(b), Article III R.A. No.
7610 should have been upheld by the CA instead of erroneously adopting the recommendation of the OSG,
which inaccurately relied on People v. Abello.58 In said case, the decisive factor for the acquittal of the
accused was not the absence of coercion or intimidation on the offended party, who was then sleeping at the
time the lascivious act was committed, but the fact that the victim could not be considered as a "child"
under R.A. No. 7610. This Court held that while the twenty-one year old woman has polio as a physical
disability that rendered her incapable of normal function, the prosecution did not present any testimonial or
documentary evidence - any medical evaluation or finding from a qualified physician, psychologist or
psychiatrist - attesting that the physical condition rendered her incapable of fully taking care of herself or of
protecting herself against sexual abuse.
Thus, it is clear that petitioner could not have been entitled to apply for probation in the first place.
Regrettably, since neither the accused nor the OSG questioned the CA Decision, it has attained finality and
to correct the error at this stage is already barred by the right of the accused against double jeopardy.
Based on the above disquisitions, the petitioner should be denied the benefit of the Probation Law and that
the Court should adopt the recommendations above-stated in situations where an accused files an appeal for
the sole purpose of correcting the penalty imposed to qualify him for probation or where he files an appeal
specifically claiming that he should be found guilty of a lesser offense necessarily included with the crime
originally filed with a prescribed penalty which is probationable.
SO ORDERED.

Sereno, C.J., Brion, Bersamin, Villarama, Jr., Reyes, and Perlas-Bernabe, JJ., concur.
Carpio, Del Castillo, and Perez, JJ., on official leave.
Jardeleza, J., no part.
Velasco, Jr., J., i join dissent of J. Mendozza and register also my dissenting opinion
Leonardo-De Castro, J., I join the dissenting opinion of J. Mendoza.
Mendoza, J., see dissenting opinion.
Leonen, J., see concurring opinion.
Endnotes:

678 Phil. 482(2011).

Rollo, p. 33.

Penned by Presiding Judge Joselito dj. Vibandor (Id. at 33-43).

Id. at 42-43.

601 Phil. 373(2009).

Penned by Associate Justice Myra V. Garcia-Fernandez, with Associate Justices Vicente S.E. Veloso and
Stephen C. Cruz concurring (Rollo, pp. 117-130).
6

Id. at 132.

Id. at 132-144.

678 Phil. 482 (2011).

10

11

12

Rollo, pp. 26-29.

453 Phil. 270 (2003).
Rollo, pp. 146-155.

13

Id. at 31.

14

1898-1945.

AN ACT RELATING TO THE CARE AND CUSTODY OF NEGLECTED AND DELINQUENT CHILDREN;
PROVIDING PROBATION OFFICERS THEREFOR; IMPOSING PENALTIES FOR VIOLATIONS OF ITS PROVISIONS
AND FOR OTHER PURPOSES.
15

16

Effective on December 2, 1926.

17

Effective on November 26, 1929.

18

Effective on November 21, 1930.

AN ACT ESTABLISHING PROBATION FOR PERSONS, EIGHTEEN YEARS OF AGE OR ABOVE, CONVICTED OF
CERTAIN CRIMES BY THE COURTS OF THE PHILIPPINE ISLANDS; PROVIDING PROBATION OFFICERS
THEREFOR; AND FOR OTHER PURPOSES, Dated August 7, 1935.
19

SEC. 8. This Act shall not apply to persons convicted of offenses punishable by death or life imprisonment;
to those convicted of homicide, treason, conspiracy or proposal to commit treason; to those convicted of
misprision of treason, sedition or espionage; to those convicted of piracy, brigandage, arson, or robbery in
band; to those convicted of robbery with violence on persons when it is found that they displayed a deadly
weapon; to those convicted of corruption of minors; to those who are habitual delinquents; to those who
have been once on probation; and to those already-sentenced by final judgment at the time of the approval
of this Act.

21

See 1.

22

65 Phil. 56(1937).

23

ESTABLISHING A PROBATION SYSTEM, APPROPRIATING FUNDS THEREFOR AND OTHER PURPOSES.

24

Emphasis supplied.

AMENDING CERTAIN SECTIONS OF PRESIDENTIAL DECREE NUMBERED NINE HUNDRED AND SIXTYEIGHT, OTHERWISE KNOWN AS THE PROBATION LAW OF 1976, Effective on December 1, 1977.
25

26

Emphasis supplied.

AMENDING PRESIDENTIAL DECREE NO. 968, OTHERWISE KNOWN AS THE PROBATION LAW OF 1976,
Issued on October 5, 1985.
27

28

Emphasis supplied 29.

29

256 Phil. 328 (1989).

30

Llamado v. Court of Appeals, supra, at 335-339.

31

602 Phil. 989 (2009).

32

33

34

Sable v. People, et al., supra, at 997.

Id.
Id. at 996.

Sable v. People, et al., supra note 31; Francisco v. Court of Appeals, 313 Phil. 241 (1995); and Llamado v.
Court of Appeals, supra note 29.
35

36

Sable v. People, et al, supra note 31.

37

Llamado v. Court of Appeals, supra note 29, at 339-340.

38

The Court En Banc voted 9-6 in favor of Justice Roberto A. Abad, ponente.

Corona (then C.J.), Carpio, Velasco, Jr., Leonardo-De Castro, Del Castillo, Perez, Mendoza, and Reyes,
JJ., concur.
Brion, J., joining J. Peralta's Concurring and Dissenting Opinion.
Peralta, J., Concurring and Dissenting Opinion.
Bersamin, J., joining J. Peralta's Concurring and Dissenting Opinion.
Villarama, Jr., Concurring and Dissenting Opinion.
Sereno, J. (now C.J.), joining Justices Peralta and Villarama.
Perlas-Bernabe, J., joining J. Villarama.
39

40

Sable v. People, et al., supra note 31, at 995.

SEC. 9. Disqualified Offenders. - The benefits of this Decree shall not be extended to those:

a. sentenced to serve a maximum term of imprisonment of more than six years;

b. convicted of subversion or any crime against the national security or the public order;
c. who have previously been convicted by final judgment of an offense punished by imprisonment of not less
than one month and one day and/or a fine of not less than Two Hundred Pesos;
d. who have been once on probation under the provisions of this Decree; and
e. who are already serving sentence at the time the substantive provisions of this Decree became applicable
pursuant to Section 33 hereof.
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41

Pablo v. Castillo, 391 Phil. 873, 878 (2000); Llamado v. Court of Appeals, supra note 28, at 338.

42

People v. Anderson, 50 Cal. 4th 19, 235 P.3d 11 (2010).

43

Dean v. State, 57 So.3d 169 (2010)

44

170 Wash. 2d 103, 239 P.3d 1102 (2010). (Emphasis supplied)

45

P.D. No. 968, Sec. 2. (Emphasis supplied)

46

453 Phil. 270 (2003).

People v. Larin, 357 Phil. 987, 997 (1998). See also Imbo v. People, G.R. No. 197712, April 20,
2015; People v. Gaduyon, G.R. No. 181473, November 11, 2013, 709 SCRA 129, 149; Caballo v.
People, G.R. No. 198732, June 10, 2013, 698 SCRA 227, 238;Navarrete v. People, 542 Phil. 496, 510
(2007); and Amployo v. People, 496 Phil. 747, 758 (2005).
47

Olivarez v. Court of Appeals, 503 Phil. 421, 432 (2005), citing People v. Larin, supra, and Amployo v.
People, supra.
48

People v. Bonaagua, G.R. No. 188897, June 6, 2011, 650 SCRA 620, 638; Flordeliz v. People, 628 Phil.
124, 140-141 (2010); Navarrete v. People, supra note 47, at 506; andAmployo v. People, supra note 47, at
755.
49

50

R.A. No. 7610, Sec. 3(a).

51

See Malto v. People, 560 Phil. 119, 139-142 (2007)

52

R.A. No. 7610, Art. 1, Sec. 2.

People v. Larin, supra note 47, at 1005-1006. See also Imbo v. People, G.R. No. 197712, April 20,
2015; People v. Gaduyon, supra note 47, at 148; Navarrete v. People, supra note 47, at 511; and Amployo
v. People, supra note 47, at 759.
53

People v. Gerandoy, G.R. No. 202838, September 17, 2014, 735 SCRA 520, 540;Caballo v. People,
supra note 47, at 242-243; Garingarao v. People, 669 Phil. 512, 524 (2011); People v. Rellota, 640 Phil. 471
(2010); People v. Abello, supra note 5, at 393; and Amployo v. People, supra note 47, at 759.
54

55

People v. Larin, supra note 47, at 1008.

56

Supra note 47.

57

Caballo v. People, supra note 47, at 242-243.

58

Supra note 5.

DISSENTING OPINION

VELASCO, JR., J.:

When the law does not qualify, We should not qualify.1

For resolution is the recurring question of whether an appellate court's downgrading of a convict's offense or
penalty - from a non-probationable to a probationable one - subsequently entitles the accused to apply for
the privilege of probation in spite of his prior perfection of an appeal. Ultimately, this issue boils down to the
interpretation of Section 4 of Presidential Decree (PD) No. 968, otherwise known as the Probation Law of
1976, as amended by PD No. 1990.2 The provision pertinently reads:
Sec. 4. Grant of Probation. - Subject to the provisions of this Decree, the trial court may, after it shall have
convicted and sentenced a defendant and upon application by said defendant within the period for perfecting
an appeal, suspend the execution of the sentence and place the defendant on probation for such period and
upon such terms and conditions as it may deem best; Provided, that no application for probation shall
be entertained or granted if the defendant perfected the appeal from the judgment of conviction,
(emphasis ours)
Initially, the Court strictly interpreted the provision as barring the convicted felon from applying for
probation if he opted to resort to filing an appeal.3 The rationale behind the disqualification was enunciated
by the Court in Francisco v. Court of Appeals, thus:
Probation is a special privilege granted by the state to a penitent qualified offender. It essentially rejects
appeals and encourages an otherwise eligible convict to immediately admit his liability and save
the state of time, effort and expenses to jettison an appeal. The law expressly requires that an accused
must not have appealed his conviction before he can avail of probation. This outlaws the element of
speculation on the part of the accused to wager on the result of his appeal that when his conviction is
finally affirmed on appeal, the moment of truth well-nigh at hand, and the service of his sentence inevitable,
he now applies for probation as an "escape hatch" thus rendering nugatory the appellate court's affirmance
of his conviction. Consequently, probation should be availed of at the first opportunity by convicts who
are willing to be reformed and rehabilitated, who manifest spontaneity, contrition and remorse. 4 (emphasis
ours)
So it was held that perfecting an appeal automatically disqualifies a convicted offender from availing of the
benefits of the Probation Law, regardless of the grounds invoked in the appeal lodged, and of whether or not
the appeal resulted in the downward modification of the offense or the penalty imposed from a nonprobationable to a probationable one.
This reading of the afore-quoted proviso, however, has repeatedly been debated upon in various cases of
differing factual settings.5 And in these cases, the Court constantly entertained the prospect of abandoning,
if not substantially modifying, this rigid interpretation to allow a penitent offender to apply for probation if he
only became qualified to apply for the benefits under the law after an appellate court downgraded his
offense or the penalty meted.
It will not be until December of 2011, in Colinares v. People,6 when the Court would take a different posture
in interpreting Sec. 4 of PD No. 968, as amended.
In Colinares, the Court was emphatic in its position that the error of a lower court should not deprive the
offender of the opportunity to seek the privilege of probation. In the words of the ponenciatherein, "[a]ng
kabayo ang nagkasala, ang hagupit ay sa kalabaw (The horse errs, the carabao gets the whip)."7 Thus, in
the face of strong dissent, the majority rejected the traditional interpretation of Sec. 4 and refused to read
the provision as prohibiting the offender from applying for the benefit of probation if the appeal was made
when the privilege of probation is not yet available.8
As held in Colinares, the appellate court's downward modification of the penalty meted, from a nonprobationable to a probationable one, amounted to an original conviction for a probationable penalty.
Under such circumstance, the Court held that the offender should still be allowed to apply for the privilege of
probation in spite of his prior perfection of an appeal because the appeal was made at a time when he
was not yet a qualified offender. In other words, therein offender has not yet lodged an appeal from the
original judgment of conviction of a probationable penalty, qualifying him to apply for probation under Sec.
4.
Regrettably, several members of the Court remain reluctant in adopting this novel interpretation inColinares,
continually reasoning that the wording of the proviso is clear and leaves no room for interpretation, and
arguing that the Probation Law is not a penal statute that must be construed liberally in favor of the

accused.9 As in the case at bar, instead of applying squarely the teaching inColinares, the majority deviated
therefrom and needlessly imposed additional restrictions before one could avail of the benefits under the
Probation Law.
The ponencia ruled herein that for the accused to be allowed to apply for probation even if he has filed an
appeal, the appeal should be anchored only on the following grounds:
1.

When the appeal is merely intended for the correction of the penalty imposed by the lower court,
which, when corrected, would entitle the accused to apply for probation; and

2.

When the appeal is merely intended to review the crime for which the accused was convicted and
that the accused should only be liable for the lesser offense which is necessarily included in the
crime for which he was originally convicted and the proper penalty imposable is within the
probationable period.

The majority is, in effect, affirming Colinares in making the grant of probation allowable even after appeal,
to which I agree. The similarity between the interpretations of Sec. 4 in Colinares and in the disposition of
this case, however, ends here. Meanwhile, divergence arises from the varying analysis of the phrase "appeal
from the judgment of conviction," which is a basis for disqualification under Sec. 4. Here, the majority puts
premium on the grounds invoked in the "appeal" adverted to, in that the appeal should not question the
finding of guilt and should not insist on the defendant's acquittal, regardless of the penalty imposed and the
crime the offender is convicted of. In contrast, Colinaresdeems more significant the "judgment of
conviction," rendering the grounds the appeal was anchored on immaterial. Instead, what is of primordial
consideration in Colinares was whether or not the defendant was convicted of a probationable offense or was
meted a probationable penalty. If not, the defendant will still be allowed to appeal his conviction on any
ground, without losing the right to apply for probation in the event that the appellate court reclassifies his
offense or downgrades his sentence to a probationable one.
Of the two interpretations, I respectfully submit that the Court's holding in Colinares should be sustained.
Therefore, I register my vote to GRANT the instant petition.
With all due respect to my colleagues, allow me to express my reservations on the Court's imposition of
prerequisites before an offender may avail of the benefits of the Probation Law.
Firstly, the conditions imposed by the majority run counter to the spirit of the Probation Law.
Recall the wording of the provision:
Sec. 4. Grant of Probation. - Subject to the provisions of this Decree, the trial court may, after it shall have
convicted and sentenced a defendant and upon application by said defendant within the period for perfecting
an appeal, suspend the execution of the sentence and place the defendant on probation for such period and
upon such terms and conditions as it may deem best; Provided, that no application for probation shall be
entertained or granted if the defendant perfected the appeal from the judgment of conviction.
Sec. 4 clearly commands that "no application for probation shall be entertained or granted if the defendant
perfected the appeal from the judgment of conviction.'" At first blush, there is nothing vague in the provision
that calls for judicial interpretation. The provision, as couched, mandates that the perfection of an appeal
disqualifies an otherwise qualified offender from applying for probation.
Nevertheless, I fully concur with the Court's ruling in Colinares that the bar must be applied only to
offenders who were already qualified to apply for probation but opted to file an appeal instead. An otherwise
rigid application of the rule would defeat the very purpose of the Probation Law, which is giving
a qualified penitent offender the opportunity to be placed on probation instead of being incarcerated. The
preambulatory clause of PD No. 1990 says as much:
WHEREAS, it has been the sad experience that persons who are convicted of offenses and who may
be entitled to probation still appeal the judgment of conviction even up to the Supreme Court, only to
pursue their application for probation when their appeal is eventually dismissed; xxx. (emphasis ours)

Verily, the clause uses the conjunctive word "and" in qualifying the type of offenders to whom the
amendment applies. Unmistakably, it refers not simply to convicted offenders in general, but more
specifically to qualified convicted offenders. What PD No. 1990 then contemplates and seeks to address is
the situation where qualified convicted offenders showed lack of repentance by appealing their conviction
instead of admitting their guilt and asking for the State's graciousness and liberality by applying for the
privilege of probation.
This supports the majority opinion in Colinares that the disqualification under Sec. 4 does not cover a
formerly disqualified convicted offender who later on becomes qualified to apply for probation by reason of a
partially meritorious appeal, sustaining the conviction but for a lesser offense or penalty. To reiterate, the
reduction of the penalty imposed in Colinares, from a non-probationable to a probationable one, amounted
to an original conviction from which no appeal has yet been taken, and thereby qualifies the convicted felon
to apply for probation under the law.
Unlike this modification in the interpretation of Sec. 4 of PD No. 968 that was introduced in Colinares,
the ponencia's, imposition of additional restrictions for availing of the benefits under the Probation Law is not
in keeping with the spirit of the law. To recall, the ponencia intimates that the added restrictions are based
on the argument that what is prohibited under the Probation Law is challenging the judgment of conviction,
which, in the majority's posture, is the finding of guilt, without distinction on whether the penalty imposed is
probationable or not. According to the majority, the accused may still lodge an appeal and qualify for
probation if the appeal is limited to praying for the reduction of the penalty imposed or downgrading the
crime he is convicted of, and should in no way insist on his innocence. With these requirements in place, the
majority effectively would want the accused to change his theory of the case and belatedly plead guilty on
appeal to a lesser offense, akin to a last minute plea-bargain.
The problem here is that the ponencia's interpretation is tantamount to forcing the accused to already
forego appealing for his acquittal at a time that probation is not yet available. This goes against the rationale
of the law, which seeks to discourage from appealing only those who are, in the first place, already
qualified to apply for probation, but waste the opportunity by insisting on their innocence. What is
more, the ponencia's restrictive proposition would lead to a baffling result -the very appeal that would
have qualified the convicted felon to apply for probation (i.e., the appeal that resulted in the
downgrading of the offense or the reduction of the penalty to a probationable one) would also be
the very same appeal that would disqualify him from availing thereof.
More on this first point, recall that the Probation Law was enacted for the following reasons:
WHEREAS, one of the major goals of the government is to establish a more enlightened and humane
correctional system that will promote the reformation of offenders and thereby reduce the incidence of
recidivism;
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WHEREAS, the confinement of all offenders in prisons and other institutions with rehabilitation programs
constitutes an onerous drain on the financial resources of the country; and
WHEREAS, there is a need to provide a less costly alternative to the imprisonment of offenders who are
likely to respond to individualized, community-based treatment programs;
On the basis thereof, PD No. 968 commands that it shall be interpreted as to:
(a) Promote the correction and rehabilitation of an offender by providing him with individualized
treatment;
(b) Provide an opportunity for the reformation of a penitent offender which might be less probable if he were
to serve a prison sentence; and
(c) Prevent the commission of offenses. 10
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Now, relate the legislature's above-stated rationale of the Probation Law to the preambulatory clauses of PD
No. 1990, which introduced the amendment removing the allowance of probation after the already qualified
offender appealed his conviction, to wit:
WHEREAS, it has been the sad experience that persons who are convicted of offenses and who
may be entitled to probation still appeal the judgment of conviction even up to the Supreme

Court, only to pursue their application for probation when their appeal is eventually dismissed;
WHEREAS, the process of criminal investigation, prosecution, conviction and appeal entails too much time
and effort, not to mention the huge expenses of litigation, on the part of the State;
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WHEREAS, the time, effort and expenses of the Government in investigating and prosecuting accused
persons from the lower courts up to the Supreme Court, are oftentimes rendered nugatory when, after the
appellate Court finally affirms the judgment of conviction, the defendant applies for and is granted
probation;
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WHEREAS, probation was not intended as an escape hatch and should not be used to obstruct and
delay the administration of justice, but should be availed of at the first opportunity by offenders
who are willing to be reformed and rehabilitated;
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WHEREAS, it becomes imperative to remedy the problems above-mentioned confronting our probation
system;11 (emphasis ours)
As can be gleaned, the declared purposes of the Probation Law and its amendatory law all echo the State's
inclination towards a rehabilitative, as opposed to a punitive, system. In fact, the proviso that the perfection
of an appeal disqualifies the offender from applying for probation is to ensure that the privilege of probation
is extended only to penitent qualified offenders, those the state deems to have the potential to be
rehabilitated.
In ascertaining an offender's penitence, the Court has repeatedly held that the qualified offender's
perfection of an appeal questioning his conviction, instead of beseeching the State's generosity through an
application for probation at the first opportunity, is antithetical to remorse and penitence. Bear in mind,
though, that the amendment was prompted by the State's past experience where qualified offenders
"wager" their chances and still seek an acquittal, only to invoke the privilege of probation when it is almost
certain that they would not be found innocent. It would, therefore, be erroneous to apply the same
principle to offenders who are not qualified, those who had no opportunity, to seek the privilege
in the first place. We cannot expect them to immediately show remorse via applying for probation, putting
their right to appeal on the line in so doing, when they are not even qualified for the privilege under the law.
In their case, there is no wager and no "first opportunity" to apply for probation to speak off, but a clear lack
of option on the part of the offenders. They had no other choice but to appeal.
Secondly, the majority's imposition of said conditions is in violation of the constitutionally-mandated
separation of powers underlying the very existence of the government.
Well-entrenched is the rule that the primordial duty of the Court is merely to apply the law in such a way
that it does not usurp legislative powers by judicial legislation. 12 Thus, in the course of such application or
construction, it should not make or supervise legislation, or under the guise of interpretation, modify, revise,
amend, distort, remodel, or rewrite the law, or give the law a construction which is repugnant to its
terms.13 The Court should shy away from encroaching upon the primary function of a co-equal branch of the
Government; otherwise, this would lead to an inexcusable breach of the doctrine of separation of powers by
means of judicial legislation.14
To hold, in the case at bar, that a formerly disqualified offender who only became qualified for probation
after judgment by an appellate court is still disqualified from applying for the privilege is tantamount to
amending the law via judicial interpretation. With the Court's disposition of the instant petition, the majority
is effectively placing additional qualifications and grounds for disqualification that not only cannot be found
anywhere in the four corners of the statute, but, worse, defeat the very purpose for which the Probation Law
was enacted.
Had the Probation Law intended the exclusion of formerly disqualified offenders from those who may avail of
the privilege, then it would have included such exclusion in the list of disqualified offenders under Sec. 9 of
PD No. 968, as amended, which, in its entirety, reads:
Sec. 9. Disqualified Offenders. - The benefits of this Decree shall not be extended to those:
(a) sentenced to serve a maximum term of imprisonment of more than six years;
(b) convicted of subversion or any crime against the national security or the public order;
(c) who have previously been convicted by final judgment of an offense punished by imprisonment of not
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less than one month and one day and/or a fine of not less than Two Hundred Pesos.
(d) who have been once on probation under the provisions of this Decree; and
(e) who are already serving sentence at the time the substantive provisions of this Decree became
applicable pursuant to Section 33 hereof.
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These disqualifications listed under Sec. 9 should be differentiated from the disqualification under Sec. 4.
Sec. 9 enumerates the legal bars from acquiring the eligibility to apply for probation. Meanwhile, the
Sec. 4 proviso states the manner on how one loses the eligibility to apply for probation which he
already possesses. To interpret here then that an offender who is not yet qualified to apply for probation
may be prejudiced by the grounds he would raise in his appeal would mean amending Sec. 9 so as to
include those who have raised their guilt as an issue on appeal.
This unwarranted judicial amendment to the law violates the fundamental maxim "expressio unius est
exclusio alterius." The express mention of one person, thing, act, or consequence excludes all others. Thus,
where a statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or
construction, be extended to others. This rule is based on the premise that the legislature would not have
made specified enumerations in a statute had the intention been not to restrict its meaning and to confine
its terms to those expressly mentioned.15
Moreover, the ponencia, in its postulation, basically legislates the timeframe for an offender's penitence.
The ponencia is virtually sending a message to convicted felons that they should already be penitent even
before they are qualified to apply for probation to be allowed to avail of the privilege in the off-chance that
the penalty meted on them is reduced or the crime they are convicted of is downgraded on appeal.
We have to consider though that it is only natural for a person charged with a crime, subjected to a highly
adversarial process, and going up against the "People of the Philippines" in litigation, to be on the defensive
and insist on his innocence rather than readily sacrifice his liberty in gambling for a mere probability of
becoming eligible for, not necessarily entitled to, probation. This does not mean, however, that he who is
guilty but denies the commission of the crime even after having been convicted by the trial court will never
ever regret having committed the offense. For his perceived lack of option, a litigant may be compelled to
appeal his conviction, without necessarily making him any less repentant later on. It would not come as a
surprise if it will only be after his appeal is heard, after the penalty imposed upon him is lessened or after
his crime was downgraded, after a window of opportunity to receive a second lease in life opens, would his
penitence be manifest in his pleadings, would he apply for probation, and would he no longer pursue the
case or push his luck.
As explained, insisting on proving one's innocence is an understandable natural human behavior. It is not, at
all times and in all cases, proof of depravity. In the same way, the observance of the proposed restrictions,
which are supposedly intended to ensure that only penitent offenders are allowed to apply for the privilege
of probation, cannot guarantee that the person invoking the limited grounds on appeal is, in fact,
remorseful. Furthermore, one cannot expect an offender to be, in all cases, impelled by remorse in applying
for the probation instead of appealing, for it may be that he sacrificed his right to fight for his innocence out
of fear of losing the privilege if he makes any further attempt thereat.
Fortunately, the grant of the privilege is entirely different from the right to apply for its grant. 16Consider, too,
that the grant is discretionary upon the trial court, hence the use of the word "may." 17 Thus, there are other
means by which the courts may determine whether the qualified offender is indeed penitent or not, other
than looking to the grounds on which his appeal was hinged. The grounds raised in the appeal should then
be immaterial. And instead of restraining an erstwhile disqualified offender's right to appeal, the Court
should adopt an effective system for weeding out those who abuse the State's generosity. This way, we can
assist in the administration of the restorative justice that the Probation Law seeks to enforce without
sacrificing civil liberties or encroaching upon the power of the Legislative Branch. To impose such restrictions
on the filing of an appeal by the disqualified convicted offender would, more often than not, result in
injustice, rather than promote the laudable purpose of the Probation Law.
Thirdly, following Colinares, the "judgment of conviction" referred to in Sec. 4 from which no appeal should
be taken should, as earlier stressed, be understood to be the original conviction for a probationable
penalty or offense, and not simply to the trial court's first finding of guilt.
It may be tempting to interpret the phrase "judgment of conviction" to refer to the trial court's finding of
guilt since "trial court" was specifically mentioned in Sec. 4, without any reference to appellate courts. This,
however, does not come as a shock. The trial court's mention, after all, comes naturally since, as the court

of origin,18 the suspension of the execution of the sentence and the placing of the defendant on probation
are just a few of its functions. The first part of Sec. 4, thus, merely echoes the rule that the execution of
judgments19 and the resolution of an application for probation20 are the duties of the trial courts, nothing
more. It should not be construed in such a way that the appeal being referred to in said Sec. 4 is that taken
only from the trial court to an appellate court as this is an entirely different matter.
To be clear, nowhere in the Probation Law does it provide that the "appeal" from the judgment of conviction
should be that made from the trial court to the appellate court. Hence, the "appeal" could very well refer to
any of the three (3) opportunities to seek a review of a judgment of conviction in criminal procedure: (a)
questioning the judgments of the Municipal Trial Court, Metropolitan Trial Court, Municipal Circuit Trial Court,
and of the Municipal Trial Court in Cities before the Regional Trial Court; (b) elevating the case from the
Regional Trial Court to the Court of Appeals; and (c) by assailing the unfavorable Decision of the Court of
Appeals to this Court the court of last resort.21
Corollarily, it is submitted that the "judgment of conviction" should not be taken to mean the initial finding of
guilt, since, as maintained by the majority in Colinares, an original judgment of conviction may also be
handed down by the appellate courts, especially when it involves the annulment or modification of the trial
court's decision. As discussed, the appellate court's judgment convicting therein defendant, for the first
time, of a probationable crime or imposing upon him a probationable penalty should be treated as
an original conviction, entitling him to apply for probation in spite of perfecting an appeal. 22 The appeal
lodged by the offender, which reduced his conviction to a probationable one, in no way adversely affected his
later-acquired eligibility.
In line with the teachings in Colinares, the Court should view the appellate court's judgment which
effectively qualified the offender for probation as the conviction from which the defendant
should not appeal from if he wishes to apply for the privilege of probation. This should be the case
for the simple reason that he has not yet questioned this second original conviction which qualifies him for
probation. To reiterate, what the law proscribes is the application for probation by a defendant who has
appealed his conviction for a probationable crime or with a probationable penalty. This proscription should,
therefore, come in only when the offender has already been convicted of a probationable crime or imposed a
probationable penalty, not when he was still disqualified for probation.
Fourthly, the adoption of the conditions set by the majority in the instant case will result in a situation
where We would be requiring from the defense lawyer a degree of diligence that is less than that expected
of him under our Rules, at his client's expense.
To elucidate, We are all very much aware of a defense lawyer's duty to his client in that:
xxx A lawyer engaged to represent a client bears the responsibility of protecting the latter's interest with
utmost diligence. It is his duty to serve his client with competence and diligence, and he should exert his
best efforts to protect, within the bounds of the law, the interests of his client. A lawyer's diligence and
vigilance is more imperative in criminal cases, where the life and liberty of an accused is at stake. 23
Simply put, a defense lawyer is expected to advocate his client's innocence in line with the
principle deeply embedded in our legal system that an accused is presumed innocent until proven
guilty beyond reasonable doubt. The lawyer owes "entire devotion to the interest of the client, warm zeal
in the maintenance and defense of his rights and the exertion of his utmost learning and ability," to the end
that nothing be taken or be withheld from the latter, save by the rules of law, legally applied. 24 Thus, unless
and until his client has been convicted with finality, we cannot expect his counsel to detract, or even require
him to detract from this duty, and convince his client to simply admit guilt and either seek a reduction of the
penalty imposed or the downgrading of the crime he has been convicted of just so the client may have a
window of opportunity to apply for the privilege of probation if and only if the appeal is granted. Instead, the
client, in the judicial forum, should be afforded the benefit of any and every remedy and defense that is
authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. 25
cralawre d

Lastly, in rejecting the petitioner's plea that the Probation Law be liberally construed in his favor, the Court
ruled that PD 968 is not a penal law that would warrant the application of the pro reo doctrine. The ruling
was premised on the instruction of the Court in Llamado v. Court of Appeals, viz:
Turning to petitioner's invocation of "liberal interpretation" of penal statutes, we note at the outset that the
Probation Law is not a penal statute. We, however, understand petitioner's argument to be really that any

statutory language that appears to favor the accused in a criminal case should be given a "liberal
interpretation." Courts, however, have no authority to invoke "liberal interpretation" or "the spirit of the law"
where the words of the statute themselves, and as illuminated by the history of that statute, leave no room
for doubt or interpretation. We do not believe that "the spirit of law" may legitimately be invoked to set at
naught words which have a clear and definite meaning imparted to them by our procedural law. The "true
legislative intent" must obviously be given effect by judges and all others who are charged with the
application and implementation of a statute. It is absolutely essential to bear in mind, however, that the
spirit of the law and the intent that is to be given effect are to be derived from the words actually used by
the law-maker, and not from some external, mystical or metajuridical source independent of and
transcending the words of the legislature.
The Court is not here to be understood as giving a "strict interpretation" rather than a "liberal" one to
Section 4 of the Probation Law of 1976 as amended by P.D. No. 1990. "Strict" and "liberal" are adjectives
which too frequently impede a disciplined and principled search for the meaning which the law-making
authority projected when it promulgated the language which we must apply. That meaning is clearly visible
in the text of Section 4, as plain and unmistakable as the nose on a man's face. The Court is simply reading
Section 4 as it is in fact written. There is no need for the involved process of construction that petitioner
invites us to engage in, a process made necessary only because petitioner rejects the conclusion or meaning
which shines through the words of the statute. The first duty of a judge is to take and apply a statute as he
finds it, not as he would like it to be.26
This oft-cited ratio in supporting the continued refusal to reject the proposed application of Sec. 4, however,
must also be reconsidered since this cited pronouncement of the Court actually deals with a different issue,
albeit pertaining to the same provision.
It bears noting that Llamado dealt with the issue of whether or not petitioner's application for probation,
which was filed after a notice of appeal had been filed with the trial court, after the records of the case had
been forwarded to the Court of Appeals, after the Court of Appeals had issued the notice to file Appellant's
Brief, after several extensions of time to file Appellant's Brief had been sought from and granted by the
Court of Appeals, but before actual filing of such brief, is barred under PD No. 968, as amended. 27 In
essence, it dealt with the alleged establishment by the amendment of a narrower period during which an
application for probation may be filed with the trial court. As the Court clarified:
In applying Section 4 in the form it exists today (and at the time petitioner Llamado was convicted by the
trial court), to the instant case, we must then inquire whether petitioner Llamado had submitted his
application for probation "within the period for perfecting an appeal." Put a little differently, the question is
whether by the time petitioner Llamado's application was filed, he had already "perfected an
appeal" from the judgment of conviction of the Regional Trial Court of Manila.28(emphasis ours)
ChanRoblesVirtualawlibrary

A reading of Llamado reveals that the Court's refusal to liberally interpret Sec. 4 actually referred to the
phrase "period for perfecting an appeal" and not the proviso being discussed in the present case. It was
therein petitioner's argument that:
xxx the phrase "period for perfecting an appeal" and the clause "if the defendant has perfected an appeal
from the judgment of conviction" found in Section 4 in its current form, should not be interpreted to refer to
Rule 122 of the Revised Rules of Court; and that the "whereas" or preambulatory clauses of P.D. No. 1990
did not specify a period of fifteen (15) days for perfecting an appeal. 3 It is also urged that "the true
legislative intent of the amendment (P.D. No. 1990) should not apply to petitioner who filed his Petition for
probation at the earliest opportunity then prevailing and withdrew his appeal."29
ChanRoblesVirtualawlibrary

which the Court flatly rejected for the ensuing reason:

We find ourselves unable to accept the eloquently stated arguments of petitioner's counsel and the
dissenting opinion. We are unable to persuade ourselves that Section 4 as it now stands, in
authorizing the trial court to grant probation "upon application by [the] defendant within the
period for perfecting an appeal" and in reiterating in the proviso that
no application for probation shall be entertained or granted if the defendant has perfected an
appeal from the judgment of conviction.
did not really mean to refer to the fifteen-day period established, as indicated above, by B.P. Big.
129, the Interim Rules and Guidelines Implementing B.P. Blg. 129 and the 1985 Rules on

Criminal Procedure, but rather to some vague and undefined time, i.e., "the earliest opportunity"
to withdraw the defendant's appeal. The whereas clauses invoked by petitioner did not, of course, refer
to the fifteen-day period. There was absolutely no reason why they should have so referred to that period
for the operative words of Section 4 already do refer, in our view, to such fifteen-day period, xxxx Upon the
other hand, the term "period for perfecting an appeal" used in Section 4 may be seen to furnish specification
for the loose language "first opportunity" employed in the fourth whereas clause. "Perfection of an appeal"
is, of course, a term of art but it is a term of art widely understood by lawyers and judges and Section 4 of
the Probation Law addresses itself essentially to judges and lawyers. "Perfecting an appeal" has no
sensible meaning apart from the meaning given to those words in our procedural law and so the
law-making agency could only have intended to refer to the meaning of those words in the
context of procedural law.30 (emphasis ours)
With the above, it is evident that when this Court pronounced in Llamado its refusal to liberally apply Sec. 4
of the Probation Law, as amended, it was doing so within the context of interpreting the phrase "period for
perfecting an appeal," which, as we all know, has a definite meaning in procedural law. It is therefore,
understandable why the Court, in Llamado, rejected therein petitioner's request for a liberal interpretation of
the phrase.
In conclusion, it is simply incorrect for the Court to interpret Sec. 4 as prohibiting the defendant from
arguing for his acquittal at a time that the privilege of probation is not yet available to him. To follow
the ponencia's interpretation would lead to a scenario wherein the Court would be
subjectingdisqualified offenders to the requirements of applying for probation in spite of their patent
ineligibility (by reason of the penalty imposed or the categorization of the offense).
The more precise interpretation, therefore, would be to grant this opportunity to apply for probation
when the accused is originally convicted for a probationable offense or sentenced to suffer a
probationable penalty, without distinction on whether the said "original conviction" was issued
by the trial court or appellate court. What is material is that the application for the privilege of probation
be made at the first opportunity, which is the period to appeal from when the offender first
became qualified for the privilege. For how can we say that the convicted offender wagered for an
acquittal on appeal instead of applying for probation when he is not qualified to avail of the benefits of the
Probation Law in the first place? He simply had no other option at that point.
As in Colinares, petitioner in this case became qualified for probation only after the appellate court modified
the trial court's ruling. If, notwithstanding this downward modification of the penalty imposed or
the crime the accused is convicted of, the now qualified defendant still appeals his new
conviction on whatever ground, then, this would be the time when his appeal would bar him from
applying for the privilege under Sec. 4.
While it is true that there is a risk that the abuse of the State's generosity by convicted offenders may still
persist because of Colinares, we should not, however, deprive all accused persons, whether guilty or not, the
opportunity to defend themselves and their liberty and to prove their case, lest we run the risk of forcing
innocent persons to forego their liberty simply because applying for probation is easier than proving their
innocence. To me, this might, more often than not, result in a failure of justice rather than its
administration.
In view of the foregoing disquisitions, I reiterate my vote to GRANT the instant petition.
Endnotes:

Corpuz v. People, G.R. No. 180016, April 29, 2014, 724 SCRA 1, 33, citing Asejo v. People, 555 Phil. 106.

AMENDING PRESIDENTIAL DECREE No. 968, OTHERWISE KNOWN AS THE PROBATION LAW of 1976.

See Almero v. People, G.R. No. 188191, March 12, 2014, 718 SCRA 698; Colinares v. People, G.R. No.
182748, December 13, 2011, 662 SCRA 266; Sable v. People, G. R. No. 177961, April 7, 2009, 584 SCRA
619; Soriano v. Court of Appeals, G.R. No. 123936, March 4, 1999, 304 SCRA 231.
3

Francisco v. Court of Appeals, G.R. No. 108747, April 6, 1995, 243 SCRA 384, 386-387.

See Colinares v. People, supra note 3; Lagrosa v. People, G.R. No. 152044, July 3, 2003, 405 SCRA
357; Francisco v. Court of Appeals, id.
5

G.R. No. 182748, December 13, 2011, 662 SCRA 266.

Colinares v. People, supra at 279.

Id. at 280.

Francisco v. Court of Appeals, supra note 3, at 390.

10

PRESIDENTIAL DECREE NO. 968, Sec. 2.

11

PRESIDENTIAL DECREE NO. 1990.

12

Corpuz v. People, supra note 1, at 57.

13

Id.

14

Id.

15

Romualdez v. Marcelo, G.R. Nos. 165510-33, July 28, 2006, 497 SCRA 89, 108.

16

Colinares v. People, supra note 3, at 278.

Section 4, PD No. 968, as amended, provides: "Subject to the provisions of this Decree, the trial
court may, after it shall have convicted and sentenced a defendant and upon application by said defendant
within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant
on probation for such period and upon such terms and conditions as it may deem best; xxx." (emphasis
ours)
17

Section 1. Execution upon judgments or final orders. - Execution shall issue as a matter of right, on
motion, upon a judgment or order that disposes of the action or proceeding upon the expiration of the
period to appeal therefrom if no appeal has been duly perfected.
18

If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in the
court of origin, on motion of the judgment oblige, submitting therewith certified true copies of the judgment
or judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the
adverse party.
The appellate court may, on motion in the same case when, the interest of justice so requires, direct the
court of origin to issue the writ of execution. (RULES OF COURT, Rule 39.)
19

See RULES OF COURT, Rule 39, Sec. 1.

20

See Section 3, PD 968. Meaning of Terms. - xxx

(a) "Probation" is a disposition under which a defendant, after conviction and sentence, is released subject
to conditions imposed by the court and to the supervision of a probation officer, (emphasis ours)
21

REVISED RULES OF CRIMINAL PROCEDURE, Rule 122, Section 2.

22

Colinares v. People, supra note 3, at 280.

23

Mattus v. Villaseca, A.C. No. 7922, October 1, 2013, 706 SCRA 477, 484.

Regala v. Sandiganbayan, First Division, G.R. Nos. 105938 & 108113, September 20, 1996, 262 SCRA
122, 140.
24

25

26

Id.
Llamado v. Court of Appeals, G.R. No. 84850, June 29, 1989, 174 SCRA 566, 577-578.

27

Id. at 576.

28

Id. at 574.

29

Id. at 575.

30

Id. at 576-577.

DISSENTING OPINION

MENDOZA, J.:

In this petition for review on certiorari, petitioner Mustapha Dimakuta y Maruhon @ Boyet (Mustapha) seeks
to reverse and set aside the September 3, 20121 and March 13, 20132 Resolutions of the Court of Appeals
(CA), in CA-G.R. CR No. 31963, which denied his motion that he be entitled to probation.
In the decision of the majority, the petition reversed its ruling in Colinares v. People3 and denied the subject
petition.
With due respect to the learned ponente of the case, I dissent.
The Antecedents:
Petitioner Mustapha was charged with the offense of Violation of Section 5(b), Article III of Republic Act
(R.A.) No. 7610, otherwise known as the Special Protection of Children against Child Abuse, Exploitation and
Discrimination Act, filed before the Regional Trial Court, Branch 199, Las Pifias City, (RTC) docketed therein
as Criminal Case No. 05-1098, for committing a lascivious conduct upon a 16-year old complainant.
To prove its accusation, the prosecution presented private complainant AAA, Department of Social Welfare
and Development Social Worker (DSWD) Arleen Bibit, and PO1 Toledo I. Mauricio, Jr., as its witnesses. The
defense, on the other hand, presented Mustapha and Allan Dimakuta to substantiate its claim of his
innocence. Mustapha denied the accusation and claimed that AAA merely concocted the charge against him
just so that she could have a reason to leave their house where she worked as a domestic helper and be
reunited with her family in the province.
On September 3, 2008, the RTC rendered its Decision, 4 finding Mustapha guilty as charged, and meted out
the penalty often (10) years of prision mayor, as minimum, to seventeen (17) years, four (4) months and
one (1) day of reclusion temporal, as maximum, with the accessory penalty of perpetual absolute
disqualification. Further, Mustapha was ordered to pay a fine of P25,000.00; civil indemnity of P25,000.00;
and moral damages of P25,000.00.
Not satisfied, Mustapha appealed the RTC judgment of conviction before the CA claiming that the trial court
egregiously erred in declaring him guilty of violating Section 5(b), Article III of R.A. No. 7610. He faulted the
trial court for giving undue faith and credence to the testimony of AAA, contending that it was laced with
inconsistencies and improbabilities, tainting the veracity of her charge. He argued that even assuming that
he indeed touched the breasts and vagina of AAA, still there was no concrete prosecution evidence showing
that the said lascivious act was committed through force, duress, intimidation or violence and, hence, his
conviction under R.A. No. 7610 was erroneous. He added that he could not be convicted of Acts of
Lasciviousness under Article 336 of the Revised Penal Code (RPC) either as the prosecution failed to
establish the essential elements of the said crime.
In its Appellee's Brief,5 the Office of the Solicitor General (OSG) averred that the RTC was correct in lending

weight and credence to the testimony of AAA and that the alleged inconsistencies in her testimony pertained
merely on minor details and did not negate the commission of the sexual molestation. The OSG, however,
was of the view that Mustapha should have been convicted of Acts of Lasciviousness only under
Article 336 of the RPC and not for Violation of Section 5(b), Article III of R.A. No. 7610 because the
prosecution failed to prove that the lascivious conduct was committed through coercion or intimidation. 6
In its June 28, 2012 Decision,7 the CA agreed with the OSG and modified the judgment of the RTC and
convicted Mustapha for Acts of Lasciviousness only under Article 336 of the RPC explaining that coercion or
intimidation, the second element of the crime of violation of Section 5(b), Article III of R.A. No. 7610, was
wanting in Criminal Case No. 05-1098. According to the CA, the evidence on record revealed that AAA was
asleep at the time the sexual abuse happened and only awoke when she felt her breasts being mashed and
her vagina being touched. The CA noted that after being roused from sleep, AAA immediately put on some
clothes and rushed out of her room, leaving Mustapha behind, and locked herself in the stockroom.
The CA added that there was no showing that Mustapha compelled AAA, or cowed her into silence to bear
his sexual assault. Neither was there evidence that she had the time to manifest conscious lack of consent
or resistance to Mustapha's assault. It stressed that the lascivious acts imputed to him had taken place while
private complainant was in deep slumber or unconscious, under almost the same factual circumstances as in
the case of People v. Abello,8 where the accused was found guilty beyond reasonable doubt of the crime of
Acts of Lasciviousness, defined and penalized under Article 336 of the RPC instead of the charge of violation
of Section 5(b), Article III of R.A. No. 7610. The CA justified its ruling that Mustapha's conviction under
Article 336 of the RPC was proper for the reasons that: 1) the recital of ultimate facts and circumstances in
the Information constituted acts of lasciviousness; and 2) the evidence adduced by the prosecution
established beyond reasonable doubt his guilt of the said crime. The dispositive portion of the CA decision
reads:
WHEREFORE, the Decision appealed from is MODIFIED. Accused-appellant Mustapha Dimakuta y Maruhom
alias "Boyet" is found GUILTY of acts of lasciviousness, defined and penalized under ARTICLE 336 of the
REVISED PENAL CODE, as amended and he is sentenced to the indeterminate penalty of SIX (6) MONTHS
of arresto mayor, as minimum, to FOUR (4) YEARS and TWO (2) MONTHS of prision correctional, as
maximum. Accused-appellant is likewise ordered to pay the private complainant TWENTY THOUSAND PESOS
(P2o,ooo.oo) as civil indemnity and THIRTY THOUSAND PESOS (P30,000.00) as moral damages.
SO ORDERED.9
Instead of moving for reconsideration, Mustapha filed on July 23, 2012, a manifestation with motion 10before
the CA praying that he be allowed to apply for probation under Presidential Decree (P.D.) No. 968 upon its
remand to the trial court for execution. He placed reliance on the Court's ruling inColinares where the
accused was allowed to apply for probation under the reduced penalty imposed on appeal. Mustapha
contended that he should not be prejudiced by the erroneous judgment of the RTC which convicted him with
the wrong crime and sentenced him with a penalty beyond the coverage of the Probation Law. He submitted
that the Probation Law must be liberally construed in favor of the accused.
In its first assailed Resolution, dated September 3, 2012, the CA denied due course to Mustapha's
manifestation with motion, holding that the Colinares case was not on all fours with the present case. The
CA explained that in Colinares case, the petitioner raised as sole issue the correctness of the penalty
imposed and claimed that the evidence at best warranted a conviction for a lesser offense of attempted
homicide; while Mustapha never assailed the propriety of the penalty meted out against him and, in fact,
questioned the findings of facts and conclusions drawn by the RTC based on the evidence adduced by the
prosecution. It held that the ruling in Lagrosa v. People11 is more at point. In said case, it was held that the
petitioners therein were precluded from seeking probation after taking a guiltlessness stance and put in
issue the merits of their conviction on appeal. The CA, thus, adjudged as follows:
WHEREFORE, the Manifestation with Motion to Allow Accused-Appellant to Apply for Probation under
Presidential Decree No. 968 is DENIED.
SO ORDERED.12
Mustapha moved for reconsideration, but his motion was denied in the second assailed Resolution, dated
March 13, 2013.

Hence, this petition.

chanrobleslaw

GROUND
THE COURT OF APPEALS' DENIAL OF THE PETITIONER'S RIGHT TO APPLY FOR PROBATION [AS IT
DID] NOT QUESTION THE PROPRIETY OF THE PENALTY UPON APPEAL, IS CONTRARY TO THE
DECIDED CASE OF ARNEL COLINARES VS. PEOPLE.13
The threshold issue that begs an answer from this Court is whether or not Mustapha has the right to apply
for probation under the new penalty imposed by the CA which is within the probationable limit.
Mustapha posits that he can still avail of the benefits of probation under P.D. No. 968, as amended by P.D.
No. 1990, despite having appealed the September 3, 2008 RTC decision because the opportunity to apply for
probation came into being only upon his conviction by the CA of the crime of Acts of Lasciviousness and the
imposition of a lesser penalty which fell within the probationable level.
By way of Comment14 to the petition, the OSG counters that Mustapha's right to apply for probation was lost
when he perfected his appeal from the RTC judgment of conviction. It argues that the perfection of an
appeal is a relinquishment of the alternative remedy of availing the Probation Law because appeal and
probation are mutually exclusive remedies which rest on diametrically opposed legal positions. The OSG
submits that the Colinares case is not squarely applicable in the case at bench because Mustapha never
admitted guilt and did not limit the issue on the correctness of the penalty meted out by the trial court.
I am of the view that the petition is impressed with merit.
Probation is not a right of an accused but a mere privilege, an act of grace and clemency or immunity
conferred by the State, which is granted to a deserving defendant who thereby escapes the extreme rigors
of the penalty imposed by law for the offense of which he was convicted. 15 In recent jurisprudence, it has
been clarified that while the convicted offender has no right to such privilege, nevertheless, he has the right
to apply for that privilege,16 provided that he is not disqualified from availing the benefits of probation.
To properly understand the current application of the Probation Law, a brief review of its history is but
appropriate. As originally promulgated on July 24, 1976, P.D. No. 968 allowed the filing of an application for
probation even if an appeal had been perfected by the convicted offender. When the law was later amended
by P.D. No. 1257 on December 1, 1977, the filing of an application for probation pending appeal was still
allowed and, in fact, fixed the period to the point just "before he begins to serve his sentence." With the
subsequent amendment of Section 4 of P.D. No. 968 by P.D. No. 1990, however, the application for probation
is no longer allowed if the accused has perfected an appeal from the judgment of conviction. Section 4 of the
Probation Law now reads:
Sec. 4. Grant of Probation. - Subject to the provisions of this Decree, the trial court may, after it shall have
convicted and sentenced a defendant and upon application by said defendant within the period for perfecting
an appeal, suspend the execution of the sentence and place the defendant on probation for such period and
upon such terms and conditions as it may deem best; Provided, that no application for probation shall
be entertained or granted if the defendant has perfected an appeal from the judgment of
conviction.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An
application for probation shall be filed with the trial court. The filing of the application shall be deemed a
waiver of the right to appeal.
An order granting or denying probation shall not be appealable.
The reason underlying the amendment was amply articulated in the preambulatory clauses of P.D. No. 1990,
thus:
WHEREAS, it has been the sad experience that persons who are convicted of offenses and who may be
entitled to probation still appeal the judgment of conviction even up to the Supreme Court, only to pursue
their application for probation when their appeal is eventually dismissed;
cralawla wlibrary

WHEREAS, the process of criminal investigation, prosecution, conviction and appeal entails too much time

and effort, not to mention the huge expenses of litigation, on the part of the State;

cralawlawlibrary

WHEREAS, the time, effort and expenses of the Government in investigating and prosecuting accused
persons from the lower courts up to the Supreme Court, are oftentimes rendered nugatory when, after the
appellate Court finally affirms the judgment of conviction, the defendant applies for and is granted
probation;
cralawlawlibrary

xxxx
In Almero v. People,17 the Court stated that the Probation Law was amended "precisely to put a stop to the
practice of appealing from judgments of conviction - even if the sentence is probationable - for the purpose
of securing an acquittal and applying for the probation only if the accused fails in his bid." In Sable v.
People,18 the Court elucidated that the requirement that an accused must not have appealed his conviction
before he can avail of probation, outlaws the element of speculation on the part of the accused - to wager on
the result of his appeal - that when his conviction is finally affirmed on appeal, the moment of truth wellnigh at hand, and the service of his sentence inevitable, he now applies for probation as an "escape hatch,"
thus, rendering nugatory the appellate court's affirmance of his conviction.
Resultantly, under Section 4 of P.D. No. 968 as amended, the accused is given the choice of
appealing his sentence or applying for probation. If he appeals, he cannot later apply for probation. If he
opts for probation, he cannot appeal.
Going back to the case at bench, I am of the considered view that Mustapha can apply for probation.
Mustapha, just like the petitioner in the Colinares case, did not have a choice between
appeal andprobation when the trial court convicted him of a wrong offense. The trial court's erroneous
conviction of Mustapha for Violation of Section 5(b), Article III of R.A. No. 7610 and the imposition of a
prison term often (10) years of prision mayor, as minimum, to seventeen (17) years, four (4) months and
one (1) day of reclusion temporal, as maximum, deprived him of the choice to pursue an application for
probation considering that the maximum probationable imprisonment under the Probation Law was only up
to six (6) years.
In the Colinares case, the petitioner was convicted by the trial court of Frustrated Homicide and sentenced
him to suffer imprisonment from two (2) years and four (4) months of prision correccional, as minimum, to
six (6) years and one (1) day of prision mayor, as maximum, but later, on appeal, this Court found him
guilty only of Attempted Homicide, and sentenced him to suffer an indeterminate penalty from four (4)
months of arresto mayor, as minimum, to two (2) years and four (4) months ofprision correccional, as
maximum. Verily, because of the stiff penalties imposed against both Mustapha and Arnel Colinares by the
trial courts, they had no way of obtaining relief except by appealing their respective judgments.
In the Colinares case, the Court resolved that it is but fair to allow the petitioner the right to apply for
probation under the reduced penalty upon remand of the case to the RTC. I see no reason why the case of
Mustapha should be treated differently considering that his sentence was reduced by the CA to an
indeterminate penalty of six (6) months of arresto mayor, as minimum to four (4) years and two (2) months
of prision correccional, as maximum. By appealing the merits of the case, together with the conformity of
the OSG, the CA found Mustapha guilty only of the crime of Acts of Lasciviousness with a penalty well within
the probationable period.
It bears stressing that the evil of speculation and opportunism on the part of the accused sought to be
curbed by the amendment in P.D. No. 1990 was not present in the case at bench inasmuch as the penalty
imposed by the RTC against Mustapha was not probationable at the outset. Besides, nowhere in the
amendatory decree does it state or even hint that in limiting the accused to the choice of either appealing
from the decision of the trial court or applying for probation, the purpose is to deny him of the right to apply
for probation in cases like the one at bench where he became eligible for probation only because his
sentence was reduced on appeal. To repeat, the purpose of the amendment is simply to prevent speculation
or opportunism on the part of the accused who, although already eligible for probation, does not at once
apply for probation, but did so only after failing in his appeal. 19
The CA explained that in the Colinares case, the petitioner therein raised as sole issue the correctness of the
penalty imposed while the OSG contends that the Colinares case is not squarely applicable to present case
because Mustapha never admitted guilt and did not limit the issue on appeal to the correctness of the
penalty meted out by the trial court.

These arguments are specious.

Firstly, in the Colinares case, the accused therein did not only question the correctness of the penalty, but
also the merits of the case by arguing that he should be exonerated due to the presence of the justifying
circumstance of self-defense. The Court did not agree with his defense but nevertheless found him guilty of
a lesser offense of attempted homicide with a probationable penalty. Just like in this case, Mustapha
appealed the merits of the case by questioning the appreciation of evidence of the trial court.
Secondly, it cannot be said with absolute certainty that the sole and exclusive motivation of Mustapha for
lodging the appeal was his desire to be acquitted. Proof of this is that after Mustapha was found guilty by
the CA of acts of lasciviousness and sentenced to a lesser penalty which thereby qualified him for probation,
he did not appeal further although he could have done so. What he did, instead, was to accept the new
sentence and seek a declaration from the CA that he is entitled to apply for probation upon remand of the
case to the RTC for execution. This shows that he is willing to accept the conviction of crime, albeit for a
lower penalty.
Thirdly, regardless of the whether an accused appealed the merits of the case or simply the correctness of
the penalty imposed, the Court should not distinguish insofar as the application of the Probation Law is
concerned. The Court cannot expect Mustapha to forgo the remedy of appeal and admit guilt over a crime
he did not commit due to an erroneous appreciation of the merits of the case. He should not accept the
erroneous judgment of the RTC for, in truth, he only committed Acts of Lasciviousness with a maximum
penalty of four (4) years and two (2) months. Mustapha should not be made to suffer through the forfeiture
of the right to apply for probation simply because the RTC had blundered. In the Colinares case, it was
written:
The Probation Law never intended to deny an accused his right to probation through no fault of his. The
underlying philosophy of probation is one of liberality towards the accused. Such philosophy is not served by
a harsh and stringent interpretation of the statutory provisions. As Justice Vicente V. Mendoza said in his
dissent in Francisco, the Probation Law must not be regarded as a mere privilege to be given to the accused
only where it clearly appears he comes within its letter; to do so would be to disregard the teaching in many
cases that the Probation Law should be applied in favor of the accused not because it is a criminal law but to
achieve its beneficent purpose.
There are views that Mustapha should not be allowed to apply for probation anchored on the following
grounds:
1] the Colinares case should not be made to apply to this case because it is not yet an established doctrine
and the pronouncements therein were not supported by the text of the Probation Law; and
2] even if the ratiocination in the Colinares case is sound, still, it finds no application in the case at bench
inasmuch as the CA erred in modifying the judgment of the RTC.
I disagree.
Adherence to the Colinares case is dictated by this Court's policy of securing and maintaining certainty and
stability of judicial decisions in accordance with the legal maxim stare decisis et non quieta movere (or
simply, stare decisis which means "follow past precedents and do not disturb what has been settled"). The
principle, entrenched under Article 820 of the Civil Code, evokes the general rule that, for the sake of
certainty, a conclusion reached in one case should be doctrinally applied to those that follow if the facts are
substantially the same, even though the parties may be different. 21Otherwise stated, once a point of law has
been established by the Court, that point of law will, generally, be followed by the same court and by all
courts of lower rank in subsequent cases where the same legal issue is raised.
Stare decisis proceeds from the first principle of justice that, absent powerful countervailing considerations,
like cases ought to be decided alike.22 Hence, where, as in this case, the same question relating to the same
event have been put forward by parties similarly situated as in a previous case litigated and decided by a
competent court, the rule of stare decisis is a bar to any attempt to relitigate the same issue.23 Significantly,
the respondent has not shown any strong and compelling reason to persuade the Court that the manner of
disposition in Colinares v. Peoplepertaining to the matter of probation should not be observed and adopted
in the case at bench.

Anent the second ground, suffice it to state that the June 28, 2012 Decision of the CA convicting Mustapha
for Acts of Lasciviousness became final and executory only upon the failure of either party to question the
decision. On the other hand, after Mustapha received a copy of the aforesaid decision on July 6, 2012, he
did not further appeal the same to this Court. Instead, he filed before the CA on July 23, 2012, a
manifestation with motion to allow him to apply for probation upon remand of the case to the trial court for
execution. To review the correctness of the final and executory June 28, 2012 Decision of the CA at this
point is no longer permissible in the light of the constitutional interdict against double jeopardy.
Not surprisingly, the OSG did not question the decision anymore as it conformed to its own recommendation
that the petitioner should be found guilty of Acts of Lasciviousness only.24
Let it be underscored that the primodial consideration of this Court in allowing the petitioner in
theColinares case to apply for probation was one of fairness. Here, considering that the sentence of the RTC
against Mustapha was modified by the CA to a probationable range upon recommendation of the OSG, and
that he is not one of those disqualified offenders under Section 9 of P.D. No. 968 as amended, he should not
be denied his right to apply for probation in the spirit of fairness. To rule otherwise would send Mustapha
straight to jail and, thus, robbing him of the chance to undergo reformation and rehabilitation as a penitent
offender, defeating the avowed purpose and objective of the Probation Law.
IN VIEW OF ALL THE FOREGOING, I recommend that the petition be GRANTED; that the assailed
September 3, 2012 and March 13, 2013 Resolutions of the Court of Appeals (CA) in CA-G.R. CR No. 31963
be REVERSED and SET ASIDE; and that petitioner Mustapha Dimakuta y Maruhon @ Boyet be declared as
entitled to apply for probation within fifteen (15) days from notice that the record of the case has been
remanded for execution to the Regional Trial Court of Las Pinas City, Branch 199, in Criminal Case No. 051098.
Endnotes:

Penned by Associate Justice Myrna V. Garcia-Fernandez with Associate Justice Vicente S.E. Veloso and
Associate Justice Stephen C. Cruz, concurring; rollo, pp. 26-29.
1

Id. at 31.

678 Phil. 482 (2011).

Penned by Judge Joselito Vibandor; rollo, pp. 33-43.

Id. at 77-1114.

Id. at 102-107.

Penned by Associate Justice Myra V. Garcia-Fernandez with Associate Vicente S.E. Veloso and Stephen C.
Cruz, concurring; id. at 117-130.
7

601 Phil. 373 (2009).

Rollo, pp. 129-130.

10

Id. at 132-142.

11

453 Phil. 270 (2003).

12

Rollo, p. 29.

13

Id. at 14.

14

Id. at 169-182.

15

Moreno v. Commission on Elections, 530 Phil. 279, 290 (2006).

16

Colinares v. People, supra note 3, at 497.

17

G.R. No. 188191, March 12, 2014.

18

602 Phil. 989, 997 (2009).

19

Francisco v. Court of Appeals, 313 Phil. 241, 264 (1995).

Article 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the
legal system of the Philippines.
20

21

Belgica v. Ochoa, Jr., G.R. No. 208566, November 19, 2013, 710 SCRA 1, 101-102.

22

Ayala Corporation v. Rosa-Diana Realty and Development Corporation, 400 Phil. 511, 521 (2000).

Chinese Young Men's Christian Association of the Philippine Islands v. Remington Steel Corporation, 573
Phil. 320, 337 (2008).
23

24

Rollo, p. 102.

CONCURRING OPINION

LEONEN, J.:

Fiat justitia mat caelum.1

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The accused touched the breast and vagina of a 16-year-old minor.

The Court of Appeals failed to appreciate that this would not have been possible without intimidation or
coercion. It lowered the penalty from a minimum imprisonment often (10) years 2 to a minimum
imprisonment of six (6) months.3 If the Decision of the Court of Appeals is upheld, he will not serve a single
day in prison for his acts. This is not what the law requires. This is definitely not what it intends.
Probation and appeal are mutually exclusive remedies. Probation is a mere privilege granted only to
offenders who are willing to be reformed and rehabilitated. It cannot be availed of when an offender has
already perfected his or her appeal from the judgment of conviction.
Generally, after a finding of fact by a trial court of the guilt of an accused beyond reasonable doubt, society
is entitled to the expectation that he or she serve his or her sentence. In this sense, probation is a mere
privilege: an exception granted to a general rule that is both reasonable and just.
I submit that Colinares v. People4 should not be made to apply to this case for two reasons.
First,Colinares has not yet become established doctrine, and the dissents of the case offer a sound and
logical approach to the issue. Colinares read an outcome, which is not supported by the text of law. Second,
even assuming that the ratio in Colinares is good law, it finds no application to this case since the Court of
Appeals erred in modifying the judgment of the trial court.
I
Probation was first established in this jurisdiction through Act No. 4221 5 dated August 7, 1935. According to
the provisions of the Act, those who have not been convicted of any offense punishable by death or life
imprisonment6 may be placed under probation after the sentence becomes final and before the offender
begins the service of sentence.7

The current law on probation is Presidential Decree No. 968, 8 which was signed into law on July 24, 1976. An
accused was originally allowed to apply for probation before the trial court even pending appeal, as long as
notice was given to the Court of Appeals where the appeal was pending. 9According to Section 4 of the
Decree:
SECTION 4. Grant of Probation. Subject to the provisions of this Decree, the court may, after it shall have
convicted and sentenced a defendant and upon application at any time of said defendant, suspend the
execution of said sentence and place the defendant on probation for such period and upon such terms and
conditions as it may deem best.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An
application for probation shall be filed with the trial court, with notice to the appellate court if an appeal has
been taken from the sentence of conviction. The filing of the application shall be deemed a waiver of the
right to appeal, or the automatic withdrawal of a pending appeal.
An order granting or denying probation shall not be appealable. (Emphasis supplied)
The Decree, however, declared that probation cannot be availed of by the following offenders:
SECTION 9. Disqualified Offenders. The benefits of this Decree shall not be extended to those:
(a) sentenced to serve a maximum term of imprisonment of more than six years;

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(b) convicted of subversion or any crime against the national security or the public order;

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(c) who have previously been convicted by final judgment of an offense punished by imprisonment of not
less than one month and one day and/or a fine of not less than Two Hundred Pesos;
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(d) who have been once on probation under the provisions of this Decree; and
(e) who are already serving sentence at the time the substantive provisions of this Decree became
applicable pursuant to Section 33 hereof.10
Section 4 of the Decree was amended twice: first, by Presidential Decree No. 1257 on December 1, 1977,
and again, by Presidential Decree No. 1990 on October 5, 1985.
The amendments of Presidential Decree No. 1257 increased the period when an application for probation
may be granted, thus:
Section 1. Section 4 of Presidential Decree No. 968, otherwise known as the Probation Law of 1976, is
hereby amended to read as follows:
"Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the court may, after it shall have
convicted and sentenced a defendant but before he begins to serve his sentence and upon his application,
suspend the execution of said sentence and place the defendant on probation for such period and upon such
terms and conditions as it may deem best.
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The prosecuting officer concerned shall be notified by the court of the filling [sic] of the application for
probation and he may submit his comment on such application within ten days from receipt of the
notification.
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Probation may be granted whether the sentence impose a term of imprisonment or a fine with subsidiary
imprisonment in case of insolvency. An application for probation shall be filed with trial court, with notice to
appellate court if an appeal has been taken from the sentence of conviction. The filling [sic] of the
application shall be deemed a waiver of the right to appeal, or the automatic withdrawal of a pending
appeal. In the latter casefj however, if the application is filed on or after the date of the judgment of the
appellate court, said application shall be acted upon by the trial court on the basis of the judgment of the
appellate court.
An order granting or denying probation shall not be appealable." (Emphasis supplied)

In 1985, however, a substantial amendment was made to the Probation Law, which categorically prohibited
applications for probation if the appeal has been perfected:
WHEREAS, it has been the sad experience that persons who are convicted of offenses and who may be
entitled to probation still appeal the judgment of conviction even up to the Supreme Court, only to pursue
their application for probation when their appeal is eventually dismissed;
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WHEREAS, the process of criminal investigation, prosecution, conviction and appeal entails too much time
and effort, not to mention the huge expenses of litigation, on the part of the State;
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WHEREAS, the time, effort and expenses of the Government in investigating and prosecuting accused
persons from the lower courts up to the Supreme Court, are oftentimes rendered nugatory when, after the
appellate Court finally affirms the judgment of conviction, the defendant applies for and is granted
probation;
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WHEREAS, probation was not intended as an escape hatch and should not be used to obstruct and delay the
administration of justice, but should be availed of at the first opportunity by offenders who are willing to be
reformed and rehabilitated;
WHEREAS, it becomes imperative to remedy the problems above-mentioned confronting our probation
system;
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NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in
me by the by Constitution, do hereby decree:
SECTION 1. Section 4 of Presidential Decree No. 968 is hereby amended to read as follows:
"SEC. 4. Grant of Probation. - Subject to the provisions of this Decree, the trial court may, after it shall have
convicted and sentenced a defendant, and upon application by said defendant within the period for
perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such
period and upon such terms and conditions as it may deem best; Provided, That no application for probation
shall be entertained or granted if the defendant has perfected the appeal from the judgment of
conviction.
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"Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An
application for probation shall be filed with the trial court. The filing of the application shall be deemed a
waiver of the right to appeal.
"An order granting or denying probation shall not be appealable." 11 (Emphasis supplied)
Thus, the present law makes an appeal and an application for probation mutually exclusive remedies. An
accused who has been sentenced to a penalty of less than six (6) years of imprisonment may only apply for
probation if he or she has not yet perfected his or her appeal from the judgment of conviction. There are no
exceptions to the rule in the text of the law. The intent to make the choices exclusive from each other is
seen in the context of the history of the amendments to this law.
The amendment to Section 4 of the Probation Law has also been the subject of several cases before this
court. Two cases, in particular, established the following principles:
1.

The Probation Law is not a penal statute that may be interpreted liberally in favor of the accused;
and

2.

Section 4 of the Probation Law clearly mandates that no application for probation shall be
entertained or granted if the defendant has perfected the appeal from the judgment of conviction.

The first of these cases applied Section 4 as it is stated in the law, effectively ruling that the law does not
admit exceptions. In Llamado v. Court of Appeals,12 Ricardo A. Llamado (Llamado) was convicted by the trial
court of violation of Batas Pambansa Bilang 22 and sentenced to imprisonment of one (1) year of prision
correccional.13

After the decision had been read to him, Llamado orally manifested before the trial court that he was taking
an appeal. The trial court forwarded the records of the case to the Court of Appeals on the same day.
Llamado received notices from the Court of Appeals to file his Appellant's Brief, to which he secured several
extensions.14
While his Appellant's Brief was being finalized by his counsel on record, Llamado sought advice from another
lawyer.15 Heeding the advice of his new counsel, he filed before the trial court a Petition for Probation under
the Probation Law.16 The Petition was not accepted by the trial court as "the records of [his] case had
already been forwarded to the Court of Appeals."17 Llamado then filed a Manifestation and Petition for
Probation before the Court of Appeals, asking it to grant his Petition or, in the alternative, to remand the
Petition to the trial court along with the records of the case. 18 While the Petition was pending before the
Court of Appeals, he filed a Manifestation and Motion formally withdrawing his appeal "conditioned . . . on
the approval of his Petition for Probation."19
The Court of Appeals denied the Petition, which prompted Llamado to file a Petition for Review before this
court, on the sole issue of whether his application for probation was filed after he had already perfected his
appeal.20
This court, however, affirmed the Court of Appeals and ruled that Llamado already perfected his appeal
when he orally manifested in open court his intention to appeal. 21 As such, he cannot be allowed to apply for
probation by virtue of Section 4 of Presidential Decree No. 968, as amended by Presidential Decree No.
1990.22 This court was also hesitant to liberally interpret Section 4 of Presidential Decree No. 968 since the
Decree was not a penal statute.23 The court stated:
Turning to petitioner's invocation of "liberal interpretation" of penal statutes, we note at the outset that the
Probation Law is not a penal statute. We, however, understand petitioner's argument to be really that any
statutory language that appears to favor the accused in a criminal case should be given a "liberal
interpretation." Courts, however, have no authority to invoke "liberal interpretation" or "the spirit of the
law" where the words, of the statute themselves, and as illuminated by the history of that statute, leave no
room for doubt or interpretation. We do not believe that "the spirit of law" may legitimately be invoked to
set at naught words which have a clear and definite meaning imparted to them by our procedural law. The
"true legislative intent" must obviously be given effect by judges and all others who are charged with the
application and implementation of a statute. It is absolutely essential to bear in mind, however, that the
spirit of the law and the intent that is to be given effect are to be derived from the words actually used by
the law-maker, and not from some external, mystical or metajuridical source independent of and
transcending the words of the legislature.
The Court is not here to be understood as giving a "strict" interpretation" rather than a "liberal" one to
Section 4 of the Probation Law of 1976 as amended by P.D. No. 1990. "Strict" and "liberal" are adjectives
which too frequently impede a disciplined and principled search for the meaning which the law-making
authority projected when it promulgated the language which we must apply. That meaning is clearly visible
in the text of Section 4, as plain and unmistakable as the nose on a man's face. The Court is simply reading
Section 4 as it is in fact written. There is no need for the involved process of construction that petitioner
invites us to engage in, a process made necessary only because petitioner rejects the conclusion or meaning
which shines through the words of the statute. The first duty of a judge is to take and apply a statute as he
finds it, not as he would like it to be. Otherwise, as this Court in Yangco v. Court of First Instance of
Manila warned, confusion and uncertainty in application will surely follow, making, we might add, stability
and continuity in the law much more difficult to achieve[.] 24 (Emphasis supplied)
The issue of whether an application for probation is allowed after the perfection of an appeal was again
taken up by this court in Francisco v. Court of Appeals.25
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In Francisco, Pablo C. Francisco (Francisco) was convicted by the Metropolitan Trial Court of four (4) counts
of grave oral defamation and sentenced to imprisonment of "one (1) year and one (1) day to one (1) year
and eight (8) months of prision correccional 'in each crime committed on each date of each case[.]'" 26 On
appeal before the Regional Trial Court, the trial court affirmed his conviction but appreciated a mitigating
circumstance in his favor. His penalty was reduced to a straight penalty of eight (8) months of
imprisonment. This Decision became final and executory upon his failure to file an appeal. Before the
Decision could be executed, however, he applied for probation before the Metropolitan Trial Court. His
application was denied, as was his subsequent Petition for Certioraribefore the Court of Appeals.27

Francisco then brought a Petition before this court, arguing that "he [had] not yet lost his right to avail
[himself] of probation[.]"28 He argued that the judgment of the Metropolitan Trial Court was such that he
could not be qualified for probation, which was precisely the reason for his appeal, so that he could avail
himself of the benefits of probation.29
This court, speaking through Justice Bellosillo, denied his Petition and ruled that Francisco was no longer
eligible for probation.30 This court stated that:
Probation is a mere privilege, not a right. Its benefits cannot extend to those not expressly included.
Probation is not a right of an accused, but rather an act of grace and clemency or immunity conferred by the
state which may be granted by the court to a seemingly deserving defendant who thereby escapes the
extreme rigors of the penalty imposed by law for the offense of which he stands convicted. It is a special
prerogative granted by law to a person or group of persons not enjoyed by others or by all. Accordingly, the
grant of probation rests solely upon the discretion of the court which is to be exercised primarily for the
benefit of organized society, and only incidentally for the benefit of the accused. The Probation Law should
not therefore be permitted to divest the stale or its government of any of the latter's prerogatives, rights or
remedies, unless the intention of the legislature to this end is clearly expressed, and no person should
benefit from the terms of the law who is not clearly within them.
Neither Sec. 4 of the Probation Law, as amended, which clearly mandates that "no application for probation
shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction,"
nor Llamado v. Court of Appeals which interprets the quoted provision, offers any ambiguity or qualification.
As such, the application of the law should not be subjected to any to suit the case of petitioner. While the
proposition that an appeal should not bar the accused from applying for probation if the appeal is solely to
reduce the penalty to within the probationable limit may be equitable, we are not yet prepared to accept this
interpretation under existing law and jurisprudence.31 (Emphasis supplied)
Moreover, this court ruled that the penalties imposed by the Metropolitan Trial Court were already
probationable since "the sum of the multiple prison terms imposed against an applicant should not be
determinative of his [or her] eligibility for, nay his [or her] disqualification from, probation." 32 It also pointed
out that Francisco appealed his conviction before the Regional Trial Court not to reduce his penalty to make
him eligible for probation but "to assert his innocence."33
Justice V. V. Mendoza, however, took exception to the majority view and voted to reverse the judgment of
the Court of Appeals.34 In his Dissenting Opinion, he stated that:
[I]f under the sentence given to him an accused is not qualified for probation, as when the penalty imposed
on him by the court singly or in their totality exceeds six (6) years but on appeal the sentence is modified so
that he becomes qualified, I believe that the accused should not be denied the benefit of probation.
Before its amendment by P.D. No. 1990, the law allowed even encouraged speculation on the outcome
of appeals by permitting the accused to apply for probation after he had appealed and failed to obtain an
acquittal. It was to change this that Sec. 4 was amended by P.D. No. 1990 by expressly providing that "no
application for probation shall be entertained or granted if the defendant has perfected the appeal from the
judgment of conviction." For an accused, despite the fact that he is eligible for probation, may be tempted to
appeal in the hope of obtaining an acquittal if he knows he can any way apply for probation in the event his
conviction is affirmed.
There is, however, nothing in the amendatory Decree to suggest that in limiting the accused to the choice of
either appealing from the decision of the trial court or applying for probation, the purpose is to deny him the
right to probation in cases like the one at bar where he becomes eligible for probation only because on
appeal his sentence is reduced. The purpose of the amendment, it bears repeating, is simply to prevent
speculation or opportunism on the part of an accused who, although eligible for probation, does not at once
apply for probation, doing so only after failing in his appeal. 35 (Emphasis supplied, citations omitted)
Justice V. V. Mendoza also submitted that the original sentence imposed on Francisco should be taken in its
totality to determine whether he was qualified for probation. 36 In his opinion, the policy of the law treats
"multiple sentences imposed in cases which are jointly tried and decided 37 as only one sentence.
Justice Vitug also offered a Separate Opinion, in that he agreed with Justice V. V. Mendoza that an accused
originally not qualified for probation must not be denied the benefit of probation if on appeal, the sentence

was reduced within the probationable period.38 He, however, concurred with the majority that "the number
of offenses is immaterial as long as all the penalties imposed, taken separately, are within the probationable
period."39
The exception suggested by Justice V. V. Mendoza, i.e., that the accused should be allowed to apply for
probation if an originally unprobationable offense is reduced to a probationable one on appeal, would
ultimately become this court's ratio in Colinares.
With all due respect, Colinares does not apply to this case.
II
In Colinares, the accused, Arnel Colinares (Colinares), was found guilty by the Regional Trial Court of
frustrated homicide. He was sentenced to an indeterminate penalty of two (2) years and four (4) months
of prision correccional as minimum to six (6) years and one (1) day of prision mayor as maximum.40
Colinares appealed before the Court of Appeals invoking self-defense. He also alternatively sought conviction
for the lesser crime of attempted homicide. The Court of Appeals denied his appeal which prompted him to
file a Petition for Review before this court.41
During the pendency of the case, this court required Colinares and the Office of the Solicitor General to
submit their respective positions on whether, assuming that Colinares was only guilty of the lesser crime of
attempted homicide, "he could still apply for probation upon remand of [this] case to the trial
court."42 Colinares argued that he was eligible while the Office of the Solicitor General argued for his
ineligibility.43
This court eventually ruled that Colinares was only guilty of attempted homicide which was punishable by
imprisonment of four (4) months of arresto mayor as minimum and two (2) years and four (4) months
of prision correccional as maximum.44 This court also found Colinares eligible for probation despite having
appealed his conviction.45 The Decision, penned by Justice Abad, stated that the accused should not be
denied the right of probation if it was through the fault of the trial court that he did not have a chance to
apply for probation:
. . . Arnel did not appeal from a judgment that would have allowed him to apply for probation. He did not
have a choice between appeal and probation. He was not in a position to say, ''By taking this appeal, I
choose not to apply for probation. " The stiff penalty that the trial court imposed on him denied him that
choice. Thus, a ruling that would allow Arnel to now seek probation under this Court's greatly diminished
penalty will not dilute the sound ruling in Francisco. It remains that those who will appeal from judgments of
conviction, when they have the option to try for probation, forfeit their right to apply for that privilege.
Besides, in appealing his case, Arnel raised the issue of correctness of the penalty imposed on him. He
claimed that the evidence at best warranted his conviction only for attempted, not frustrated, homicide,
which crime called for a probationable penalty. In a way, therefore, Arnel sought from the beginning to
bring down the penalty to the level where the law would allow him to apply for probation.
In a real sense, the Court's finding that Arnel was guilty, not of frustrated homicide, but only of attempted
homicide, is an original conviction that for the first time imposes on him a probationable penalty. Had the
RTC done him right from the start, it would have found him guilty of the correct offense and imposed on him
the right penalty of two years and four months maximum. This would have afforded Arnel the right to apply
for probation.
The Probation Law never intended to deny an accused his right to probation through no fault of his. The
underlying philosophy of probation is one of liberality towards the accused. Such philosophy is not served by
a harsh and stringent interpretation of the statutory provisions. As Justice Vicente V. Mendoza said in his
dissent in Francisco, the Probation Law must not be regarded as a mere privilege to be given to the accused
only where it clearly appears he comes within its letter; to do so would be to disregard the teaching in many
cases that the Probation Law should be applied in favor of the accused not because it is a criminal law but to
achieve its beneficent purpose.46(Emphasis supplied)
This Decision by the court was contentious in the least, with this court's En Bane voting 9-6 47in favor of the
ponencia and with Justice Peralta and Justice Villarama offering their Separate Opinions.

With all due respect, Justice Villarama correctly stated in Colinares that an application of liberality in the
interpretation of Section 4 is "misplaced."48
It is a settled principle of statutory construction that only penal statutes are construed liberally in favor of
the accused.49 It is also equally settled that the Probation Law is not a penal statute.50 The provisions of the
law, including Section 4, should be interpreted as stated, which is that once an appeal has been perfected by
the accused, he or she is not anymore entitled to the benefits of probation.
The Probation Law intends to benefit only penitent offenders, or those who admit to their offense and are
willing to undergo rehabilitation. According to Section 2 of the Probation Law:
Section 2. Purpose. This Decree shall be interpreted so as to:
(a) promote the correction and rehabilitation of an offender by providing him with individualized
treatment;
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(b) provide an opportunity for the reformation of a penitent offender which might be less probable if he were
to serve a prison sentence; and
(c) prevent the commission of offenses.

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Moreover, the law was amended precisely to prohibit those offenders from taking advantage of the benefits
of the Probation Law when their appeals for innocence are rendered futile. The first Whereas clause of
Presidential Decree No. 1990 states:
WHEREAS, it has been the sad experience that persons who are convicted of offenses and who may be
entitled to probation still appeal the judgment of conviction even up to the Supreme Court, only to pursue
their application for probation when their appeal is eventually dismissed;
It is thus abhorrent to the intention of the law if those who have appealed their convictions, i.e., those who
asked the court to review their convictions in the hope of securing an acquittal, are still allowed to apply for
probation.
In these situations, the privilege of probation becomes an "escape hatch" 51 for those whose appeals were
found unmeritorious. In Sable v. People, et al.:52
The law expressly requires that an accused must not have appealed his conviction before he can avail
himself of probation. This outlaws the element of speculation on the part of the accused to wager on the
result of his appeal that when his conviction is finally affirmed on appeal, the moment of truth well nigh
at hand and the service of his sentence inevitable, he now applies for probation as an "escape hatch," thus
rendering nugatory the appellate court's affirmance of his conviction. Consequently, probation should be
availed of at the first opportunity by convicts who are willing to be reformed and rehabilitated; who manifest
spontaneity, contrition and remorse.
This was the reason why the Probation Law was amended, precisely to put a stop to the practice of
appealing from judgments of conviction even if the sentence is probationable, for the purpose of securing an
acquittal and applying for the probation only if the accused fails in his bid. 53(Emphasis supplied)
Similarly, Justice Villarama stated in his Separate Opinion in Colinares that:
It must be stressed that in foreclosing the right to appeal his conviction once the accused files an application
for probation, the State proceeds from the reasonable assumption that the accused's submission to
rehabilitation and reform is indicative of remorse. And in prohibiting the trial court from entertaining an
application for probation if the accused has perfected his appeal, the State ensures that the accused takes
seriously the privilege or clemency extended to him, that at the very least he disavows criminal tendencies.
Consequently, this Court s grant of relief to herein accused whose sentence was reduced by this Court to
within the probationable limit, with a declaration that accused may now apply for probation, would diminish
the seriousness of that privilege because in questioning his conviction accused never admitted his guilt. It is
of no moment that the trial court's conviction of petitioner for frustrated homicide is now corrected by this

Court to only attempted homicide. Petitioner's physical assault on the victim with intent to kill is unlawful or
criminal regardless of whether the stage of commission was frustrated or attempted only. Allowing the
petitioner the right to apply for probation under the reduced penalty glosses over the fact that accused's
availment of appeal with such expectation amounts to the same thing: speculation and opportunism on the
part of the accused in violation of the rule that appeal and probation are mutually exclusive
remedies.54 (Emphasis supplied)
The underlying theory, therefore, of the amendment to Section 4 is that the grant of probation to an accused
whose sentence was reduced must proceed from an accused's remorse and willingness to undergo
rehabilitation, which is antithetical to the filing of an appeal to seek the reversal of his or her conviction.
A more lenient approach was offered by Justice Peralta in Colinares. He was more open to finding exceptions
to the rule and was of the opinion that what Section 4 of the Probation Law prohibited are only appeals from
the judgment of conviction.55 He opined that probation, even after one's filing of the notice of appeal, should
be allowed in the following instances:
1. When the appeal is merely intended for the correction of the penalty imposed by the lower court, which
when corrected would entitle the accused to apply for probation; and
2. When the appeal is merely intended to review the crime for which the accused was convicted and that the
accused should only be liable to the lesser offense which is necessarily included in the crime for which he
was originally convicted and the proper penalty imposable is within the probationable period. 56 (Emphasis in
the original)
Justice Peralta stated that in these instances, the appeal is intended to question only the propriety of the
penalty imposed, rather than review the merits of the case. 57 He believed, however, that probation should
not be granted in the following instances:
1. When the accused is convicted by the trial court of a crime where the penalty imposed is within the
probationable period or a fine, and the accused files a notice of appeal; and
2. When the accused files a notice of appeal which puts the merits of his conviction in issue, even if there is
an alternative prayer for the correction of the penalty imposed by the trial court or for a conviction to a
lesser crime, which is necessarily included in the crime in which he was convicted where the penalty is within
the probationable period.58(Emphasis and underscoring in the original)
This case is one of the instances mentioned by Justice Peralta wherein an application of Colinareswould
violate the spirit and intent of the law.
The facts state that petitioner appealed his conviction before the Court of Appeals on the basis that the trial
court erred in giving credence to the victim's testimony as it was laced with inconsistencies and
improbabilities. He argued that even if he did commit lascivious conduct against the victim, he still should
not be charged with violation of Article 336 of the Revised Penal Code since the prosecution failed to
establish the essential elements of the crime. This is tantamount to an assertion of his innocence. 59
For him to still be eligible for probation, his appeal should have argued that the trial court erred in finding
him guilty of violation of Republic Act No. 7610 since his offense was merely acts of lasciviousness.
The first appeal determines whether he comes under the exception.
Petitioner's appeal before the Court of Appeals was made for the purpose of securing an acquittal; it was not
for the purpose of lowering his penalty to one within the probationable period. To allow him to apply for
probation would be to disregard the intent of the law: that appeal and probation are mutually exclusive
remedies.
III
Even assuming that the ratio in Colinares is sound, it finds no application in this case simply because the
Court of Appeals erroneously modified the offense.

Petitioner had been convicted by the trial court of violation of Article III, Section 5(b) of Republic Act No.
7610 for allegedly molesting a 16-year-old girl. The provision states:
Section 5. Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money,
profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group,
indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and
other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the
following:
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in
prostitution or subject to other sexual abuse; Provided, That when the victim is under twelve (12) years of
age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No.
3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be; Provided,
That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion
temporal in its medium period[.]
In Garingarao v. People,60 the elements of this offense are as follows:
1. The accused commits the act of sexual intercourse or lascivious conduct;

cralawlawlibrary

2. The said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and
3. The child, whether male or female, is below 18 years of age. 61
Lascivious conduct is defined as:
[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner
thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person,
whether of the same or opposite sex, with the intent to abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic
area of a person.62
Here, petitioner is accused of touching the breast and vagina of a 16-year-old girl. 63 On appeal, however, the
Court of Appeals modified the offense, finding that the prosecution failed to prove that the lascivious conduct
was done with coercion or intimidation.64 It found petitioner to be guilty only of acts of lasciviousness under
Article 336 of the Revised Penal Code.65 The provision states:
ARTICLE 336. Acts of Lasciviousnes. - Any person who shall commit any act of lasciviousness upon other
persons of either sex, under any of the circumstances mentioned in the preceding article, shall be punished
by prision correccional.
The Court of Appeals, however, erred in modifying the offense. According to Navarrete v. People,66the
elements of Article 336 of the Revised Penal Code are:
(1) The offender commits any act of lasciviousness or lewdness;

cralawlawlibrary

(2) It is done under any of the following circumstances:

a. By using force or intimidation; or.
b. When the offended party is deprived of reason or otherwise unconscious; or
c. When the offended party is under 12 years of age; and
(3) The offended party is another person of either sex. 67 (Emphasis supplied)
In the first place, it is illogical for the Court of Appeals to have found the offense committed with force or

intimidation and, at the same time, without coercion or intimidation. Second, the fact that the victim in this
case was a minor who was molested by an adult is enough to prove that the victim's free will was subdued
in view of her minority and immaturity. The moral ascendancy of the adult offender was enough to
intimidate the minor victim. In Garingarao:
The Court has ruled that a child is deemed subject to other sexual abuse when the child is the victim of
lascivious conduct under the coercion or influence of any adult. In lascivious conduct under the coercion or
influence of any adult, there must be some form of compulsion equivalent to intimidation which subdues the
free exercise of the offended party's free will. 68 (Emphasis supplied)
Thus, petitioner was correctly found by the trial court guilty of violation of Article III, Section 5(b) of
Republic Act No. 7610. Since this offense is punishable by reclusion temporal or an imprisonment of more
than six (6) years, petitioner is not eligible for probation.
Accordingly, I concur with the ponencia.

G.R. No. 177768

July 27, 2009

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
CHARMEN OLIVO y ALONG, NELSON DANDA y SAMBUTO, and JOEY ZAFRA y
REYES, Appellants.
DECISION
QUISUMBING, J.:
This is an appeal from the Decision1 dated November 30, 2006 of the Court of Appeals in CA- G.R.
CR HC No. 00595 which had affirmed in toto the Decision2 dated August 24, 2004 of the Regional
Trial Court (RTC) of Quezon City, Branch 81, finding accused-appellants Charmen Olivo (Olivo),
Nelson Danda (Danda), and Joey Zafra (Zafra) guilty beyond reasonable doubt of the crime of
robbery with homicide, with no aggravating nor mitigating circumstance, and sentencing them to
suffer the penalty of reclusion perpetua and to indemnify, jointly and severally, the heirs of the victim,
Mariano Constantino, P65,000 as actual damages, P50,000 for the death of the victim, and P50,000
as moral damages.
Accused-appellants Olivo, Danda and Zafra were charged in an Information dated November 29,
2000, as follows:
The undersigned accuses CHARMEN OLIVO Y ALONG alias Lipay, NELSON DANDA Y SAMBUTO
alias Teng, and JOEY ZAFRA Y REYES, of the crime of Robbery with Homicide, committed as
follows:
That on or about the 21st day of November 2000, in Quezon City, Philippines, the said accused,
conspiring and confederating together and helping one another, with intent to gain and by means of
force, violence, and intimidation against persons, to wit: by then and there armed with guns forcibly
entered the hardware store of Mariano Constantino [y] Zoleta located at Eagle Street, Sitio Veterans
B, Bgy. Bagong Silangan, this City, then announced that it was [a] HOLD-UP and ordered Maricel
Permejo, storekeeper thereat, at gunpoint to give them the money of said store, did then and there
wilfully, unlawfully and feloniously took, rob and carry away the total amount of P35,000.00
Philippine Currency, representing the days earnings of said hardware store, that on the occasion of
and by reason of the said robbery and in pursuance of their conspiracy, the said accused with intent
to kill, did then and there wilfully, unlawfully and feloniously attack, assault and employ personal

violence upon the person of one MARIANO CONSTANTINO Y ZOLETA, by then and there shooting
him with a gun hitting him on the trunk and extrem[i]ties, thereby inflicting upon said Mariano
Constantino [y] Zoleta serious and mortal wounds which were the direct and immediate cause of his
death, to the damage and prejudice of the heirs of said Mariano Constantino [y] Zoleta.
CONTRARY TO LAW.3
When arraigned on January 22, 2001, all of the accused-appellants pleaded not guilty.4
The evidence for the prosecution consisted of the oral testimonies of Maricel Permejo, storekeeper
of the victim Mariano Constantino, Pablito Constantino, the victims brother, SPO2 Joseph Dino
(SPO2 Dino), medico-legal officer Dr. Winston Tan, and Emelita Constantino, the victims wife. The
defense, for its part, presented accused-appellants Olivo and Zafra, Dominica Bernal, who was the
landlady of Olivo and Danda, and Rodel de Belen who corroborated Zafras testimony.
The prosecution, through the Office of the Solicitor General, narrates its version of the facts as
follows:
On November 21, 2000, around 6:30 oclock in the evening, Maricel [Permejo] was tending the store
of the victim, Mariano Constantino in Bagong Silangan, Quezon City. Suddenly, three (3) armed men
entered the store and demanded money. When Maricel did not accede to the demand, one of the
armed men later identified as appellant Nelson Danda kicked her in the leg while his other
companion, appellant Joey Zafra got money from the cash register. When the store owner, Mariano
Constantino, went inside the store and shouted, the third companion, appellant Charmen Olivo
poked a gun at him. Mariano ran towards the back of the house but appellant Olivo nevertheless
chased him. Thereafter, Maricel heard successive shots and saw appellants Danda and Zafra going
out of the store while the bloodied body of Mariano was lying at the stairway of the house. The victim
was taken to the hospital where he died upon arrival.
Two days after the incident SPO2 Joseph Dino received an information from the Batasan Police
Station that they have three (3) suspects for drug violations and illegal possession of firearms. He
borrowed the suspects for identification by Maricel. When presented to her, she identified them as
the men who staged a hold up and shot the deceased. 5
The defense, through the Public Attorneys Office, summarized its version of facts as follows:
EVIDENCE FOR THE PROSECUTION:
To prove the allegations in the Information, the prosecution presented Maricel [Permejo], Pablito
Constantino, SPO2 Joseph Dino, Dr. Winston Tan, and Emelita Constantino.
The evidence for the prosecution tends to establish that while Maricel [Permejo] was tending the
store of the late Mariano Constantino on 21 November 2000, three (3) armed men barged in at
around 6:30 oclock in the evening and ordered her to bring out the money. When she refused,
accused Nelson Danda kicked her leg while accused Joey Zafra proceeded to get the money
amounting to P35,000.00 from the cash register.
Meanwhile, the owner Constantino entered his store and shouted. Accused Charmen Olivo pointed a
gun at him. Constantino ran to the back of the house and accused Olivo chased him. Successive
gunshots were subsequently heard.

[Permejo] looked for her employer and found him wounded and bloodied along the stairway of the
house. She sought help from a neighbor and the victim was brought to the Fairview [General]
Hospital where he expired.
The cadaver was brought for autopsy to Camp Crame and Dr. Winston Tan, after the procedure,
found several gunshot wounds, the fatal among which was the one sustained on the right chest.
The cadaver was thereafter brought to the Dela Paz Funeral where he stayed for a day and a night.
The remains were then brought to Marinduque for the wake which lasted four (4) days and four (4)
nights. EmelitaConstantino testified on the civil aspect of the case.
SPO2 Joseph Dino, an investigator at Camp Karingal, was designated to handle the case. He went
to the place of the incident and took the statement of Maricel [Permejo]. Two (2) days after, their
office received information that the Batasan Police Station has three (3) suspects for violation of
Republic Act (RA) 6425. SPO2 Dino borrowed the suspects and when he presented them to
Permejo, the latter identified them as the same persons who held them up and shot her employer.
EVIDENCE FOR THE DEFENSE:
The defense presented the following witnesses, to wit: Charmen Olivo, Dominica Bernal, Joey Zafra
and Rodel de Belen.
The evidence for the defense of accused Charmen Olivo and Nelson Danda shows that at around
6:30 oclock in the evening of 21 November 2000, the accused were cleaning the house that they
rented from Dominica Bernalon 20 November 2000.
While accused Olivo was fetching water along Barangay Holy Spirit in Payatas, Quezon City on 24
November 2000, policemen in civilian clothes mauled and arrested him sans a warrant. Together
with two (2) others, they were brought to Station 6 allegedly for violation of R.A. 6425. A woman
came and accused Olivo was taken out. The policemen asked her, "ito ba?" which she answered in
the negative. The same question was repeated twice but the answer was not changed.
After a few days, the accused were imprisoned at Camp Karingal. They were asked their names.
The same woman arrived thereat and at a distance of 1 meters, accused Olivo heard the
policemen telling the woman "ituro mo na". The woman then mentioned accused Olivos name.6
On August 24, 2004, the RTC rendered a decision convicting accused-appellants of the crime of
robbery with homicide. The dispositive portion of the decision states:
WHEREFORE, premises considered, the Court finds accused Charmen Olivo y Along, Nelson
Danda y Sambuto and Joey Zafra y Reyes guilty beyond reasonable doubt of the crime of Robbery
with Homicide. There being no mitigating or aggravating circumstance, each accused is hereby
sentenced to suffer the penalty of Reclusion Perpetua and is hereby ordered to indemnify, jointly and
severally, the heirs of the victim in the following amounts:P65,000.00 as actual
damages, P50,000.00 for the death of the victim and P50,000.00 as moral damages.
SO ORDERED.7
Accused-appellants Olivo and Danda appealed to the Court of Appeals.

In a Decision dated November 30, 2006, the Court of Appeals affirmed in toto the RTCs decision, as
follows:
WHEREFORE, premises considered, the instant appeal is hereby DISMISSED. The assailed
decision isAFFIRMED in toto.
SO ORDERED.8
Before this Court now, the issues raised by the accused-appellants are the following:
I.
the court a quo gravely erred in convicting the accused-appellants charmen olivo and nelson danda
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 finding that there was conspiracy in the case at bar.
iii.
assuming arguendo that accused-appellants charmen olivo and nelson dandas culpability was
established, the court a quo gravely erred in convicting them of the complex crime of robbeRy with
homicide.9
The accused-appellants argue that in criminal prosecutions, the State has the burden of proving the
guilt of the accused beyond reasonable doubt. It has to prove the identity of the accused as the
malefactor, as well as the fact of the commission of the crime for which he is allegedly
responsible.10 They argue that it can be gleaned from the records of the case that the prosecution
relied mainly on the testimony of the alleged eyewitness Maricel Permejo, but her testimony leaves
much to be desired.11 They argue that Maricel Permejo did not point to them as the malefactors and
she only did so upon the instruction given in Camp Karingal. They point out that they were invited
allegedly for violation of the anti-drugs law and were appalled to learn that they were charged with a
different crime and the alleged witness was coached to identify them. Evidently, they stress, their
guilt has not been proved with the required quantum of evidence. Where the peoples evidence fails
to meet the quantum required to overcome the constitutional presumption of innocence, the accused
is entitled to acquittal regardless of the weakness of his defense of denial and uncorroborated alibi,
for it is better to acquit a guilty man than to unjustly keep in prison one whose guilt has not been
proven beyond the required quantum of evidence. 12
The appellants further argue that while the alleged eyewitness claimed she saw the accusedappellant Joey Zafra take the money from the cash register, she did not see how and who killed
Mariano Constantino. She merely claimed that she saw the accused-appellants armed and chased
the deceased outside the store. They conclude that whether or not the accused-appellants indeed
committed homicide on the occasion of the robbery is a matter that has not been proven with the
required moral certainty of guilt.13
On the other hand, the prosecution, through the Office of the Solicitor General, argues that findings
of fact of the trial court are generally upheld on appeal and the accused-appellants are assailing the
correctness of the findings of fact of the trial court by impugning the credibility of the prosecution

witness Maricel Permejo.14 The prosecution claims that contrary to the accused-appellants claim that
the police officers taught the witness Maricel Permejo to point to them as the perpetrators, her
testimony is straightforward and direct.15
After review, we find that the accused-appellants should be acquitted.
It is settled that when the issue is the evaluation of the testimony of a witness or his credibility, this
Court accords the highest respect and even finality to the findings of the trial court, absent any
showing that it committed palpable mistake, misappreciation of facts or grave abuse of discretion. It
is the trial court which has the unique advantage of observing first-hand the facial expressions,
gestures and the tone of voice of a witness while testifying.16
The well-entrenched rule is that findings of the trial court affirmed by the appellate court are
accorded high respect, if not conclusive effect, by this Court, absent clear and convincing evidence
that the tribunals ignored, misconstrued or misapplied facts and circumstances of substances such
that, if considered, the same will warrant the modification or reversal of the outcome of the case.17
Factual findings of trial courts, when substantiated by the evidence on record, command great
weight and respect on appeal, save only when certain material facts and circumstances were
overlooked and which, if duly considered, may vary the outcome of the case. 18
In this case, the material fact and circumstance that the lone alleged eyewitness, Maricel Permejo,
was not able to identify the accused-appellants as the perpetrators of the crime, varies the outcome
of this case. This circumstance was established during the direct examination of Olivo and was not
rebutted by the prosecution during cross-examination or in its pleadings. Olivos testimony reads as
follows:
xxxx
Q: Mr. Witness, when they brought you to Station 6[,] what happened there in Station 6?
A [(Charmen Olivo)]: A woman [(Maricel Permejo)] came in and the police took me out.
Q: After bringing you out[,] what happened when the certain woman arrived?
A: They questioned the woman sir.
Q: What did they ask the woman?
A: They asked the woman, ["ito ba"]? [T]he woman answered, ["he is not the one sir".]
Q: How many times did they ask the woman that question, if they asked more than
[once]?
A: Three (3) times sir.
Q: And what was the answer of that woman for the second and third time that they
asked her again?
A: Hindi po yan sir.19 (Emphasis supplied.)

xxxx
It was only a few days after, when the accused-appellants were brought to Camp Karingal,
that Maricel Permejo was again asked to identify the accused-appellants. This time, she
identified them as the perpetrators of the crime. Olivos testimony reads as follows:
xxxx
Q: After that what happened?
A: The woman gave a negative answer.
After a few days, we were brought to Camp Karingal sir.
Q: When you were brought to Camp Karingal what happened there?
A: Our names were asked sir.
Q: Who took your names?
A: I do not know sir.
Q: What happened after somebody took your names while you were there at Camp
Karingal?
A: We were put in prison sir.
Q: What happened after you were brought to the cell?
A: A woman arrived sir.
Q: Are you saying that that woman who arrived was the same woman that you saw there at
Station 6?
A: Yes sir.
Q: When she arrived what did you notice that the poli[c]emen were doing while the woman
arrived?
A: I saw the poli[c]emen teaching the woman sir.
Q: How do you know that the poli[c]em[e]n [were] te[a]ching the woman?
A: I heard them sir.
Q: How far were you from the police and this woman when you said you overheard them?
A: About one and one half me[t]ers sir.

Q: And what did the policem[e]n [do] when you said the policemen were teaching the
woman[?] What did the policem[e]n tell the woman?
A: The police said ["ituro mo na"].
Q: What did the woman do after the policem[e]n said ["ituro mo na"] did the[y] point at you
and your companion?
A: She mentioned my name sir.
Q: What did the woman [do] aside from mentioning your name?
Aside from the woman [giving] your name, [what else] did she do, if she did any?
A: No more sir.20
xxxx
The fact that Permejo was not able to identify accused-appellants as the perpetrators of the crime
impinges heavily on the credibility of prosecutions evidence. For if, indeed, the accused-appellants
were the malefactors of the crime who did not hide their faces during the robbery, the eyewitness,
who had such close, traumatic encounter with them, should automatically have recalled their faces
upon seeing them. It behooves this Court to declare that she was not able to do so positively.
Having ignored the abovementioned important circumstance, the trial court misconstrued and
misapplied facts and circumstances of the case, warranting the modification or reversal of the
outcome of the case. The trial court grievously erred when it ruled that the lone prosecution
eyewitness categorically and positively identified accused-appellants as the perpetrators of the
crime.
Other circumstances tend to prove that the accused-appellants were not the perpetrators of the
crime.
One, they were not arrested for the crime of robbery with homicide but were arrested during a buybust operation. The records are bereft as to whether or not the case against them for violation of
Republic Act No. 642521prospered.
Two, they were brought to Camp Karingal for dubious reasons. When SPO2 Dino was asked during
direct examination why he was called to investigate the robbery with homicide which occurred in the
Batasan area when he was in Camp Karingal, SPO2 Dino replied that it was standard operating
procedure (SOP) that when the case is murder and robbery and the amount is more than P1 million,
the case will be handled by the Criminal Investigation Unit (CIU). Apparently realizing his mistake
that the amount taken was only P35,000.00 when asked the same question during crossexamination, SPO2 Dino replied that it was SOP that if the case is murder or homicide and if there is
no available police investigator for that police station, then Camp Karingal will be the one to conduct
the investigation. SPO2 Dinos testimony during direct examination goes:
xxxx
Q: How did you learn of the death of the same person?

A: The case was called at the Batasan Police Station, in our station, and our desk officer told
me to handle the case.
Q: By the way, can you tell this court why the case/incident happened in Batasan and you
were called to investigate when in fact you were in Camp Karingal?
A: It was SOP in the [Central Police District (CPD)] that when the case is Murder and
Robbery [and the amount] is more than 1 million, the case is to be handled by the
[Criminal Investigation Unit (CIU)].22(Emphasis supplied.)
xxxx
On cross-examination, he replied:
xxxx
Q: Now, Mr. [P]oliceman, would you tell us why you were assigned to conduct the
investigation in this case when they have other police investigator[s] at Batasan Hills,
Quezon City?
A: Because that was the standard [operating] procedure that if the case is [murder] or
[h]omicide that if there is [no] available police investigator for that police station, then
Camp Karingal will be the one to conduct the investigation.
Q: In your direct examination, I did not remember you tell before this Court that you
conduct[ed] the investigation of this case. Since it involved robbery with [h]omicide, do you
know how much was involved in the robbery?
A: If I remember, it was P[h]p 30,000.00 sir.
Q: It was not one (1) million?
A: Yes sir.
Q: By the way, who is the one making the assignment in case of destination of [a] case like
this[?]
A: The criminal investigator, sir.
Q: You are referring to Camp [K]aringal or Batasan Hills?
A: Camp Karingal, sir.
Q: You are saying that even if the offense is committed at another place, Camp Karingal will
be the one to investigate?
A: Yes sir.
Q: This case was reported to the Batasan Hills Police Station?

A: Yes sir.
Q: And it was not directly reported to Camp Karingal?
A: The Batasan Police Station Desk Officer reported the case to Camp Karingal.
Q: How do you know that?
A: The Desk Officer called the Camp Karingal Office, sir.23 (Emphasis supplied.)
xxxx
The abovementioned testimony of SPO2 Dino makes his credibility doubtful.
Apparently, the accused-appellants were arrested without a warrant during a buy-bust operation on
November 24, 2000,24 transferred to Camp Karingal under dubious circumstances, and made to
stand in a police line-up and identified by an eyewitness who failed to identify them three times.
These circumstances were ignored by the trial court who gave too much credence on the positive
identification of the accused-appellants by the same eyewitness during direct examination.
Trial courts are mandated not only to look at the direct examination of witnesses but to the totality of
evidence before them. In every case, the court should review, assess and weigh the totality of the
evidence presented by the parties. It should not confine itself to oral testimony during the trial. 25
We cannot convict appellants for the special complex crime of robbery with homicide when the
evidence relied upon by the trial court is plainly erroneous and inadequate to prove appellants guilt
beyond reasonable doubt. Conviction must rest on nothing less than moral certainty, whether it
proceeds from direct or circumstantial evidence.26
In view of the foregoing, acquittal of the accused-appellants is in order.
One final note. The other accused, Joey Zafra, who is identically circumstanced as the other
appellants and who was likewise convicted on the same evidence, does not appear to have
perfected an appeal from the trial courts judgment. The record does not show the reason therefor.
Be that as it may, the present rule is that an appeal taken by one or more several accused shall not
affect those who did not appeal, except insofar as the judgment of the appellate court is favorable
and applicable to the latter.27 Our pronouncements here with respect to the insufficiency of the
prosecution evidence to convict appellants beyond reasonable doubt are definitely favorable and
applicable to accused Joey Zafra. He should not therefore be treated as the odd man out and should
benefit from the acquittal of his co-accused. In fact, under similar conditions and on the same
ratiocination, Section 11(a), Rule 122 of the Rules of Court has justified the extension of our
judgment of acquittal to the co-accused who failed to appeal from the judgment of the trial court
which we subsequently reversed.28
WHEREFORE, the Decision dated November 30, 2006 of the Court of Appeals in CA-G.R. CR HC
No. 00595 and the Decision dated August 24, 2004 of the Regional Trial Court of Quezon City,
Branch 81 are REVERSED AND SET ASIDE. Accused-appellants Charmen Olivo and Nelson
Danda are hereby ACQUITTED of the crime charged on the ground of reasonable doubt. Pursuant
to Rule 122 of the Rules of Court, their co-accused Joey Zafra is declared entitled also to
ACQUITTAL. Let a copy of this decision be furnished the Director of the New Bilibid Prison,

Muntinlupa, Rizal, who is ordered to IMMEDIATELY RELEASE them from confinement unless held
for some other legal cause, and to report to this Court any action taken by him within ten days from
notice.
No pronouncement as to costs.
SO ORDERED.
G.R. No. L-31102 May 5, 1979
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FELIPE DUEO alias FELIPE CATALAN, SOFRONIO DUEO and ANDRESITO BELONIO alias
HAPON,defendants-appellants.
R. B. Agrava for appellants.
Solicitor General Felix Q. Antonio for appellee.

SANTOS, J.:
This is an appeal interposed on April 22, 1969 by the above named three defendants from a decision
of the Court of First Instance of Capiz, 11th Judicial District, Roxas City, Hon. Judge Jose A. Aligaen
presiding, in Criminal Case No. 3771 for murder, finding them guilty as charged and imposing upon
them the penalty of life imprisonment or reclusion perpetua with all accesory penalties and to pay,
jointly and severally, the heirs of the victim the amount of Six Thousand Pesos (P6,000.00). 1
It appears that on November 27, 1963, the Provincial Fiscal of Capiz filed an Information for murder
against the three accused thus That on or about the 21st day of January, 1963, in the municipality of Maayon,
province of Capiz, Philippines, and within the jurisdiction of this Honorable Court, the
said accused, all armed with pistol, revolver and fighting bolo, conspiring,
confederating and helping one another, with evident premeditation and treachery, did
then and there wilfully, unlawfully and feloniously shoot and hit one Bernardo
Demontano thereby inflicting upon the latter a "bullet wound passing through the
body, entering the left costal arch mammary line and passing out of the right-midinfra clavicular lines, which resulted in the instantaneous death of the said Bernardo
Demontano that due to the death of the said Bernardo Demontanio and the
consequent loss of his earning capacity, (the deceased having no permanent
physical disability at the time of his death), his heirs have suffered damages in the
sum of P8,000.00 in consonance with the provision of Article 2206 of the New Civil
Code.
Contrary to law. 2
Upon arraignment on June 13, and July 25, 1964 all of the accused pleaded not guilty. At the trial,
the prosecution presented its evidence consisting of the testimonies of Dra. Teresa C. Andrada,
Federico Dolfo, Roque Dellomos and Sets. Ramon Espeleta and Fidel Soberano and Exhibit A

before Judge Ignacio Debuque. 3Thereafter, the sala became vacant for four years. It was only in 1968
that the defense presented its evidence consisting of the testimonies of Herminda del Rosario,
Federico Bitoon and the three accused before the Hon. Judge Jose Aligaen who rendered judgment on
March 24, 1969 convicting all the accused. 4
The appeal was directed to the Court of Appeals, but, in view of the penalty involved, the records
were forwarded to this Court on October 4, 1969. 5 On January 2, 1977, and May 8, 1978 after the
case had been submitted for decision on February 1, 1972 - appellants Felipe Dueno and Sofronio
Dueno, respectively, withdrew their appeals. These withdrawals were allowed in resolutions dated
January 2, 1977 and June 28, 1978. 6 hence, only the appeal of accused appellant Andresito Belonio is
wider review in this decision.
The evidence for the prosecution and the defense, as correctly synthesized by the Solicitor General
in the People's brief 7 are as follow
At about five thirty o'clock in the afternoon of January 21, 1963, while Roque
Dellomos was on his way to the hacienda of the Central Azucarera del Pilar, at
Maayon, Capiz, he met the three accused Felipe Dueo, Sofronio Dueo and
Andresito Belonio near the house of Federico Dolfo (p. 101, t.s.n., Dec. 10, 1964,
Dellomos). Upon seeing Roque Dellomos, Felipe Dueno fired a shot at Dellomos
from a Caliber. 45 pistol he had at the time (p 102, Id). Roque Dellomos immediately
ran away and while running he heard a second shot fired from the gun of the said
accused. (p. 106, Id).
In the evening of that day, January 21, 1963, at about post 9:00 o'clock just after
Roque Dellomos and Bernardo Demontano a nephew of the former, had taken their
supper at Dellomos house in Balighot Maayon, Capiz, Bernardo Demontanio opened
the door of the house preparatory to going down. (p. 113, t.s.n., Dec. 10, 1964,
Dellomos). At that moment, Roque Dellomos, who was fixing the plates they use in
eating heard a shot from a gun and at the same time heard his nephew Bernardo
Demontano fall from the stairs of the house pp. 113, Id). Dellomos immediately got
his flashlight and blew out the light from his lamp on the table where they ate. (Id)
He went towards the door where his nephew fell and focused his flashlight outside
his house while his body was behind the bayong full of palay beside the door and
peeped from a hole on their wall. (p. 112. t.s.n., Dec. 11, 1964, Dellomos). He saw
the accused Felipe Dueno with a gun in hand which was fired but missed him. He
also saw the two accused, named Sofronio Dueo with a gun in hand and accused
Andresito Belonio with a bolo in hand. (p. 113, 114 and 117, t.s.n., Dec. 10, 1964,
Dellomos).
When the three accused left the house of Roque Dellomos, the latter verified what
happened to his nephew Bernardo Demontanio and he saw his dead body
downstairs of his house just in line with the eves of the roof. (p. 129, t.s.n., Dec. 10,
1964, Dellomos).
The next morning, Roque Dellomos reported the incident to the municipal authorities
of Maayon, Capiz (p. 130, Id); Dr. Teresa Capote Andrada the Rural Health Physician
of Maayon examined the body of the deceased Bernardo Demontano (p. 25, t.s.n.,
Aug. 7, 1964, Andrada) and found gun shot wounds which caused his death
instantaneously. (Exh. "A").

On that same night of January 21, 1963, one Federico Dolfo, a neighbor of Roque
Dellomos, while the former was preparing the milk of his infant child in their house,
he heard two gun shots from the direction of the house of Roque Dellomos. (p. 61,
t.s.n., Nov. 4, 1964, Dolfo). Having been almost also a victim of the attack by the
accused that same afternoon with Roque Dellomos, he thought that it might be the
accused attacking Roque Dellomos, his neighbor, so he got his flashlight and his
bolo and went down his house and hid himself from the banana plantations infront of
his house near the barrio trail, (p. 61, t.s.n., Nov. 4, 1964, Dolfo). While thus hiding
he heard noises of persons passing the trail near him and when He saw persons
running by that trail, which was about five meters from where he was, he lighted his
flashlight and focused it on the persons running and recognized them to be accused
Felipe Dueo, Sofronio Dueo and Andresito Belonio. (p 64, t.s.n., Nov. 4, 1964,
Dolfo).
Appellants relied on alibi as their common defense.
That on or about the same time that the crime for which they were convicted was
committed, appellant Sofronio Dueo and Andresito Belonio were at the house of
Herminea del Rosario at Barrio Guba Pontevedra, Capiz (p. 238, t.s.n., July 12,
1968). Appellants tried to support their alibi with the testimony of Herminea del
Rosario of Barrior Guba Pontevedra, Capiz.
Appellant Felipe Dueoalleged that at the time the crime was allegedly committed he
was in Barrio Hipona Pontevedra, Capiz, having slept in the evening of January 21,
1963 at the house of Federico Bitoon at Barrio Hipona Pontevedra, Capiz. Federico
Bitoon corroborated such testimony of the appellant. (p. 286, t.s.n. Sept. 17, 1968,
Dueo)
The trial Court after considering the prosecution evidence and the alibi put up by the three
accused found as the motive for the commission of the offense that the three accused were angry
at Roque Dellomos and Federico Dolfo because the latter returned the stolen carabao to its owner in
Malagit, Pontevedra. The stolen carabao was left by Felipe Dueo on the care of his father-in-law.
The deceased Bernardo Demontanio was mistaken for Roque Dellomos. It further found that the
three accused conspired in committing the offense, as shown "by the fact that in an incidents of their
criminal adventure they were always together. Even in their gayest moment while drinking tuba in the
house of their principal witness, Mrs. Herminda del Rosario, they were together." The defense of alibi
was considered very weak, since "(t)he distance of the alleged hide-outs of the three accused in the
town of Pontevedra to the town of Maayon, the seat of the crime, is not very far. Maayon, was
formerly a barrio of the town of Pontevedra and a good road now running vast sugarcane
plantations, connects the two towns which are very accessible to each other by trucks, jeeps and
automobiles. The crime took place at about nine o'clock in the evening. One can be catching fish or
doing carpentry work in Pontevedra during daytime and commit murder in Maayon in the evening."
After weighing the evidence, the trial Court found the three defendants Felipe Dueo, Sofronio
Dueo and Andresito Belonio "guilty beyond reasonable doubt of the crime of murder with the
qualifying circumstances of treachery and evident premeditation, with the aggravating circumstance
of nighttime to facilitate its commission," and imposed "life imprisonment or reclusion perpetua with
all necessary penalties attached to it; to pay jointly severally the heirs of Bernardo Demontano the
amount of six thousand (pesos) ... with costs. 8
Accused-appellants in this appeal seek the review and reversal of the decision alleging that the
lower Court erred

I ... IN FINDING, ON THE BASIS OF THE INCREDIBLE TESTIMONIES OF

DELLOMOS AND DOLFO, THAT APPELLANTS SHOT BERNARDO DEMONTANO
IN THE EVENING OF JANUARY 21, 1963.
II ... IN FINDING THAT THERE WAS A SUFFICIENT MOTIVE FOR APPELLANTS
TO COMMIT THE MURDER OF WHICH THEY STAND CHARGED.
III ... IN NOT GIVING CREDENCE TO APAPPELLANTS' DEFENSE OF ALIBI.

Appellants' counsel 10 undertook with notable zeal a detailed and painstaking scrutiny of the testimonies
of the prosecution witnesses and now argue in support of the assigned errors as follows:
1. On the alleged incredibility of the testimonies. That the declarations of Roque Dellomos and
Federico Dolfo who witness the incident in the afternoon and Identified the defendents as the
ones responsible for the death of the victim Bernardo Demontao in the evening "are so
inherently improbable as not to be credible"; 11 that Dellomos' act of extinguishing the kerosene lamp
and immediately switching on his flashlight is illogical; 12 that Dellomos' testimony that he focused his
flashlight for three (3) minutes runs counter to the natural reaction of a person who had just n fired
upon; 13 that Dolfo's testimony that he recognized the three accused after focusing his flashlight on them
is also incredible since he also admitted that he went behind some banana trees for his own safety; 14 that
if Dolfo's testimony were true, appellants would have stopped to investigate the person who flashed the
light on them. 15
2. On the insufficiency of motive. That the motive as found by the trial court has no factual basis for
"if it is true that Felipe (Dueo) stole the carabao, he would not have kept it in Bo.Balighot in the yard
of his father-in-law, but would. 16 have brought it somewhere else. And,
3. On the alibi. That it is unfortunate that the lower court rejected the alibi which was corroborated by
witnesses who had no reason to lie. 17
And now to consider the merits of the foregoing assigned errors and the arguments in support
thereof.
1. Appellants' contention that the testimonies of the eyewitnesses Dellomos and Dolfo are inherently
improbable as not to be credible has been successfully traversed by the Solicitor General. 18 For,
Dolfo and Dellomos, having been the target of accused-appellants only a few hours earlier in the
afternoon of the same day, may and should be expected to take some risk to the point perhaps of
being illogical and reckless to identify and, if possible, frustrate any further attempts on the part of the
three accused to assault and to try to kill them again. As the People's brief explains
There is nothing illogical in Dellomos putting out their kerosene lamp upon hearing
the first gunshot just outside his house Find upon hearing his nephew (Bernardo
Demontao supplied) fall from their stairs. It could be stated that the thought that he
almost cost his life to a gun from the three accused that same afternoon must hate
made him thought (sic, should be think) that he was again the target of said
gun Putting out the light would conceal his indentity and his whereabouts inside the
house from anyone outside. The fact that he got his flashlight and focused a fight
from it outside the house from the door opening where his nephew fell and at the
same time concealing his body with a sackfull of palay near the door and at the same
time peeping from a hole away from the lighted flashlight he was holding is not an
unnatural thing to do for any person similarly situated Instead of being an unnatural
reaction of a person in such situation, as appellant asserts, it is but a natural instinct

for anyone to investigate from who and where was the source of the gunfire, (sic)
taking safety precaution for himself from any possible harm as witness did when he
hid his body behind a sack-full (bayong) of palay by their open door, if not to scare
away those intruders who use the darkness of night as a means of attaining any evil
purpose. On this point, witness Dellomos testified as follows:
xxx xxx xxx
Q. And after that you flashed your flashlight directing to the opening
of the door where Bernardo Demontano passed, am I right?
A Yes., sir.
Q Now, when you flashed your flashlight to that open- ing of the door
you saw Bernardo Demontano on the ground, am I right?
A. No sir. The first person I saw was Felipe Dueflo who was near the
stairs and I was behind a big bayong of palay.
Q. Where is that big bayong of palay where you were posted?
A. By the side of our table.
Q. How far is that bayong where you have posted yourself from the
opening at the door where Bernardo Demontano passed in going
downstairs?
A. Very near. The distance of the bayong from the panel of the door is
fifteen inches to my estimate.
Q You do not answer my question. My question is, how far is that
bayong where you were posted from the opening of the door where
Bernardo Demontano passed?
A. That is what I have told, fifteen inches,
Q. And that bayong where you have posted is at the side of the door,
am I right?
A. Yes, sir.
Q. So since it is near the door it will obstruct the opening of the door,
am I right? Fiscal DELFIN:
Your Honor, please, the question is already a conclusion of fact.
COURT:
Reform the question. What do you mean by that? You are using a
future tense. This is all past.

Atty. CORDENILLO :
Q. When you flashed your light through the opening of the door you
allegedly saw Felipe Dueno, am I right?
A. Yes, sir.
COURT:
Q. Where was Felipe Dueno the first time you saw him after you have
focused your flashlight?
A. On the side of our house because you know the wall of our house
had a hole and the first time I focused my flashlight I saw him through
the hole.
Q. Where were you at that time when you first saw Felipe Dueno?
A. I was behind the bayong of palay and peeping when I focused my
flashlight looking for the place where the shot came from.
Q. How far were you from Felipe Dueno when you saw him for the
first time? A.
A. About two or three brazas away because the elevation of my
house to the ground is a little bit high because the rung of my stairs
was six rungs.
xxx xxx xxx
Q. While you were looking at Felipe Dueno where were his
companions, how far were they from Felipe Dueno?
A. The companions were about two brazas away from him.
Q. What were they doing, what were his companions doing
A. Andre sito was holding are revolver .38 caliber aiming the revolver
forward. The other one was holding fighting bolo hanging on his side.
Q. Were the two companions standing?
A. Yes, sir.
Q. They did not advance towards Felipe Dueo, is that right?
A. No, sir, they did not go near Felipe Dueno, but they were holding
their weapons. (pp. 227-235, Transcript 1)

Such evidence clearly and positively proves that the accused herein were Identified
as the perpetrators of the crime, as the trial Court correctly found.
In the absence of any showing that the court a quo disregarded a material fact which
would damage the conclusion made, this finding must be upheld. (People vs.
Dorado, 30 SCRA 53. Accord: People vs. Ruben Ablaza, 30 SCRA 173).
xxx xxx xxx
Another point that appellant asserts in support of their arguments that the testimony
of Roque Dellomos is improbable is the fact that said witness focused his lighted
flashlight upon the accused for three minutes more or less. It is argued that such fact
'runs counter to the natural reaction of a person who has just been fired upon. (p. 18,
Appellant's brief),
On cross-examination, witness Dellomos testified as follows:
Q. Atty. CORDENILLO
A. We are sure now Mr. Dellomos, that you allegedly saw Felipe
Dueno below your house through a hole at the wall of your house, but
not through the opening of the door of our house, am I right?
Q. Yes, sir.
A. And where did you let the light of your flashlight pass through,
through the opening of the door, or through the hole of the wall of
your house?
Q. I focused my flashlight on the stairway, but because of the
illumination of the light I saw Felipe Dueno through the hole of the
wall of the house.
A. How long was it from the first shot to the time when you focused
the light of your flashlight through the door?
Q. Immediately after hearing the shot I took hold of my flashlight and
focused my flashlight because I was surprised that Bernardo
Demontano had fallen.
Q. Shall we say five minutes?
A. Perhaps about a minute. That is only an estimate because I had to
stand yet and get the flashlight.
Q. How long have you focused the light of your flashlight through the
door?
No sir I did not expose my flashlight out of the door, but I just put the
inner part of my flashlight in the opening of the door but the rays of
the light has spread up to the wall of the house. (pp. 124-126, t.s.n) 19

xxx xxx xxx

Again appellant assails the testimony of witness Federico Dolfo as not worthy of
credit and as unnatural His testimony is that while hiding among the banana
plantation in front of bis house near the barrio trail, he lighted (sic) his flashlight and
focused the same upon the running persons whom he recognized to be the accused,
(pp. 64, t.s.n., Nov. 4, 1964, Roque). Admittedly, this testimony is in corroboration to
that of Dellomos as regards the Identity of the accused. Appellants ask: If the aim of
Dolfo in going down his house was for his own safety, what purpose would there be
to flash his light upon them while passing? (p. 20, Appellant's brief Contrary to
appellants assertion of falsity, such act of lighting on the running persons by witness
was but a natural and instinctive act of anyone under such situation He was not sure
that the gun shots he heard were from the accused ... The fact that the accused did
not stop to investigate who was lighting on them and did not fire on him is but a lucky
stroke of fate. 20
2. The position of the Solicitor General on the second assigned error, is also well taken. Thus
It is respectfully submitted that the Identity of the accused as the perpetrators of the
crime was clearly established by the evidence in the instant case and it being so we
submit that the question of motive is not important (People vs. Bautista, 30 SCRA
558).
xxx xxx xxx
Motive is relevant where the Identity of the persons accused of having committed the
crime is in dispute, where there are no eyewitness, and where suspicion is likely to
fall upon a number of persons (People vs. Portugueza, L-22604, July 31, 1967). In
the case at bar, the Identity of the accused was positively proved by eyewitnesses,
so motive is irrelevant. 21
3. And finally, on the alibi, the People's brief correctly justifies the lower court's finding and
conclusion. Thus
The trial court did not err in rejecting alibi as appellants defense. The evidence does
not show that it was inherently impossible for the appellants to be at the scene of the
crime on that fatal evening. It must be clearly shown not only that the accused was at
some other place but as well that it was physically impossible for him to be at the
scene of the crime at the time of its commission. (People vs. Marquez, L-24373-74,
Nov. 28, 1969).
The trial court stated:
The distance of the alleged hide-outs of the three accused in the
town of Maayon, (Capiz) the seat of the crime is not very far. Maayon
was formerly a barrio of the town of Pontevedra and a good road now
running between vast sugarcane plantations, connects the two towns
which are very accessible to each other by trucks, jeeps and
automobiles. The crime took place about nine o'clock in the evening.
Once can be catching fish or doing carpentry work in Pontevedra
during daytime and commit murder in Maayon in the evening. (p. 253,
Rec.).

By way of resume then. The evidence for the prosecution establish that in the afternoon of January
21, 1963, the three accused-appellants fired upon Roque Dellomos and Federico Dolfo but mis
them; and theft in the evening of the same day, the three again were Identified as the assailants who
fired upon and killed Bernardo Demontao who was mistaken for Roque Dellomos and/or Federico
Dolfo. It also appears that their defense of alibi was not worthy of credence. The guilt of the three
accused-appellants, therefore, has been established and proved beyond reasonable doubt.
In specific regard to the circumstances attendant in the commission of the offense, Article 248 of the
Revised Penal Code is clear that only one qualifying circumstance is necessary to qualify the
offense as murder. In the present case, the trial court found that the two qualifying circumstances
treachery and evident premeditation attended the commission of the offense and utilized both
conjointly to qualify it to murder. This is error. As treachery sufficiently qualifies the killing to murder
evident premeditation having been also alleged in the information and proved, should be
considered as a generic aggravating circumstance only. 22 However, jurisprudence is settled that
evident premeditation cannot be appreciated in a case where, although the accused had planned the
perpetration of the killing, the victim was different from the person whom the accused had originally
intended to kill. 23 Thus, in the Mabug-at case, 24 We said that "(e)ven when there is sufficient proof of
premeditation ..., it cannot be considered as a qualifying circumstance ..., because the person whom the
accused intended to kill was not Perfecta Buralo, who was hit by the bullets, but her aunt Juana Buralo."
In the case at bar, it was Roque Dellomos who accused-appellants intended to kill, but it was his nephew,
Bernardo Demontano instead, who was shot at and hit and in instantaneously died.
With respect to nighttime, the rule in People v. Magsilang 25 that except in special cases, the
circumstances of treachery and nocturnity "always go together and are absorbed in the same offense"
and that both "may well be regarded as complementing each other and (are) to be considered as one
circumstance only, to qualify the killing as murder, 26 applies in this case Nocturnity, like abuse of
superiority is absorbed in treachery because it forms part of the peculiar treacherous means and manner
adopted to insure the execution of the crime. If facilitates the treacherous character of the attack. As an
element of treachery, it would not be just to use it again as an aggravating circumstance. 27 Accordingly,
nighttime, like evident premeditation, cannot be separately appreciated in the instant case.
There being no mitigating or aggravating circumstance, the penalty of life imprisonment or reclusion
perpetua is the proper penalty in accordance with Art. 248, in relation to Articles 64, par. 1, and 77 of
the Revised Penal Code.
The civil indemnity to the heirs of the deceased, however, should be raised from P6,000.00 to
P12,000.00. The trial court's decision should accordingly be modified. 28
As noted earlier, accused-appellants Felipe Dueno and Sofronio Dueno had withdrawn their appeals,
and the decision of the trial court already became final and executory as to them. The decision is
binding as to the third accused-appellant, Andresito Belonio, who pursued his appeal.
WHEREFORE, with the modification that the indemnity to be paid to the heirs of the deceased
should be raised from P6,000.00 to P12,000.00 without subsidiary imprisonment in case of
insolvency, the decision appealed from is hereby AFFIRMED. No cost.
SO ORDERED.
G.R. No. 141443

August 30, 2000

IN THE MATTER OF PETITION FOR THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS :

AZUCENA L. GARCIA, petitioner.

DECISION
DE LEON, JR., J.:
Azucena L. Garcia petitions this Court to issue a writ of habeas corpus in order "to free, relieve and
exonerate her from the penalty of imprisonment adjudged and imposed upon her, in gross violation
of her constitutional rights to due process of law and other fundamental rights" 1 pursuant to an
allegedly void judgment rendered on April 20, 1995 by the Regional Trial Court (RTC) of Quezon
City, Branch 86, in Criminal Case No. Q-94-53589.
The antecedent facts, as found by the trial court, are as follows:
On October 27, 1989, herein accused, Azucena Locsin Garcia, filed an application for land
registration with the Regional Trial Court of Quezon City (Branch 80) docketed as LRC Case No. 89007 covering two parcels of land identified as Lots Nos. 822-C-1 and 822-C-2 with an area of 32,350
and 28,750 sq. m., respectively. Appended to said application were the following documents, to wit:
(1) Tax Declaration No. 2273 with PIN-21-11773-1 for Lot 822-C-1; (2) Tax Declaration No. 22732
with PIN-21-11773-2 for Lot 822-C-2; Subdivision Plan Psd-19954; (4) Technical Description of Lot
822-C-1; and Technical Description of Lot 822-C-2.
There is no evidence as to the proceedings taken, if any, in the said application for land registration.
It would appear, though, as borne out by subsequent events, that said application was abandoned
because on May 8, 1991 accused, who is the applicant in the land registration case, filed an
application this time for administrative reconstitution of Transfer Certificate of Title No. 308462 with
the Land Registration Authority (Exh. "F"). Attached to the application for reconstitution, aside from
the documents appended to the previous application for land registration which were reproduced in
the former, were the owners copy of Transfer Certificate of Title No. 308462 (Exh. "N" for the
prosecution which is similar to Exh. "2" for the defense) in the name of the accused and Real
Property Tax Bill-Receipts (Exhs. "12," "12-A" to "12-G").
On June 7, 1991, at the request of the accused, Edgardo Castro, Deputy Register of Deeds of
Quezon City, issued a certification (Exh. "B"; Exh. "1") stating that the original of TCT No. 308462
was among those burned during the fire that razed the Quezon City Hall on June 11, 1988.
On June 20, 1991 (not 1992 as appearing in the Information in Criminal Case No. Q-94-53589), TCT
No. 308462 was ordered reconstituted, along with other TCTs in the names of other applicants,
pursuant to Administrative Order No. Q-283(91) signed by Benjamin M. Bustos, Reconstituting
Officer of the Land Registration Authority (Exh. "6").
On September 10, 1991, complainant [Antonio de] Zuzuarregui wrote the Quezon City Assessors
Office (Exh. "L") requesting for certification as to the authenticity of Declaration of Real Property No.
2273, Property Index No. 21-11773-1 Piedad Estate (Exh. "L-1") and Declaration of Real Property
No. 22732, Property Index No. 21-11773-2, Piedad Estate ("Exh. L-2"), both issued in the name of
Domingo R. Locsin and purportedly signed by Jose C. Gonzales, then acting City Assessor of
Quezon City, because the lot embraced by the said declarations are allegedly within the boundary of
said complainants property per his TCT No. 181095.

In reply to the above letter, Q.C. City Assessor Constantino P. Rosas wrote Zuzuarregui on
September 11, 1991 stating that no such records (Declarations of Real Property Nos. 2273 and
22732) exist in their office and the same appear to be spurious (Exhs. "J" and "J-1").
Meanwhile, on September 23, 1991, accused, thru counsel, filed a Motion to Withdraw her
application for land registration with the RTC Q.C. (Br. 80) which was granted by the court in its
Order dated September 25, 1991 (Exhs. "I" & "11").
On October 4, 1991, Zuzuarregui wrote another letter this time to Mrs. Brigida Llave, Technical
Records Section of the Bureau of Lands, NCR, Q.C. (Exh. "C") requesting for certification as to the
authenticity of the documents attached to the letter, namely Annex "1" xerox copy of Plan Psd19954 of Lot 822-C in the name of Domingo R. Locsin; Annex "2" xerox copy of the technical
description of Lot 822-C-1, Psd-19954, also in the name of Domingo R. Locsin (Exh. "C-2"); and
Annex "3" xerox copy of the technical description of Lot 822-C-2, Psd-19954, likewise in the name
of Domingo R. Locsin (Exh. "C-3", all of which were appended to and used in support of the abovementioned application for administrative reconstitution. Said xerox copies of the plan and technical
descriptions were respectively referred to Brigida Llave of the Technical Records Section and Engr.
Elpidio de Lara of the Technical Services Section of the Bureau of Lands, for their Comments (Exh.
"C-1").
In Llaves reply of October 7, 1991 (Exh. "E"), she stated that the alleged plan, Psd-19954, is nonexisting in their files and called attention to the fact that she has no signature over her stamped
name "Brigida R. Llave" on said plan. De Lara, for his part, in an interoffice memorandum dated
October 14, 1991 (Exh. "D"), disputed the authenticity of the technical descriptions (Annexes "2" and
"3" to the letter of Zuzuarregui) by stating that the signatures thereon are not his (T.S.N., April 1,
1994, p. 10.)
Based on the above developments tending to discredit the authenticity and credibility of the
documents presented by the accused in support of her application for reconstitution with the LRA, on
complaint of Zuzuarregui, Benjamin Bustos caused a review of his previous order giving due course
to the reconstitution of TCT No. 308462 and on the basis of his findings, recalled and set aside, said
previous order as far as TCT No. 308462 is concerned in a Supplemental Order dated October 8,
1991. From said Supplemental Order, herein accused interposed an appeal to the LRA
Administrator.
On or about November 11, 1991, Zuzuarregui instituted a criminal complaint with the Fiscals Office
of Quezon City charging the herein accused of falsifying the technical descriptions and tax
declarations all issued in the name of Domingo R. Locsin, father of the accused. Said complaint was
dismissed in an order dated May 15, 1992. On July 16, 1992, Zuzuarregui filed a Motion for
Reconsideration of the Order dismissal (Exh. "14"").
xxx
Meanwhile, on August 14, 1992, Samuel C. Cleofe, Register of Deeds of Quezon City, in his reply to
a letter from herein complainant Zuzuarregui, stated that per verification from their Control Log Book,
TCT No. 308462 is not shown as among those filed in their office (Exh. "A").
On September 18, 1992, Zuzuarreguis Motion for Reconsideration of the order dismissing his
criminal complaint against the accused was granted in a resolution issued by Asst. City Prosecutor
Dimaranan Vidal (Exh. "15"). Accordingly, herein accused was formally charged with three counts of
falsification of public documents in three separate criminal informations filed with the RTC of Quezon
City and docketed as Criminal Cases Nos. 36490-92, the first being for falsification of technical

description of land and the other two being for falsification of Declarations of Real Property (Exhs.
"13"; "13-B" and 13-C").
In the meantime, upon request of certain Miguel V. Sison, Jr., Officer in Charge, Director IV, Office of
the Executive Secretary, Presidential Action Center, Malacaang, the National Bureau of
Investigation conducted an examination of both the specimen and questioned signatures of Vicente
Coloyan, former Register of Deeds of Quezon City, the questioned signatures being those appearing
on TCT No. 308462. On March 9, 1993, Director Epimaco Velasco of the NBI wrote Miguel V. Sison,
Jr. (Exh. "3") transmitting copy of their findings contained in a Questioned Document Report No.
151-393, dated March 9, 1993 (Exh. "4") signed by Rogelio G. Azores, Document Examiner IV of the
NBI (Exh. "4-B"), as approved by Arcadio A. Ramos, Chief of the Questioned Document Division
(Exh. "4-C") and noted by Manuel C. Roura, Deputy Director, Technical Services (Exh. "4-D"). The
conclusion arrived at as per the Report is that the questioned and standard signatures of Vicenter
[sic] Coloyan were written by one and the same person.
On October 13, 1993, in response to a request of Rogelio Azores who rendered the above
Questioned Document Report, Quezon City Assosor [sic] Constantino P. Rosas issued a Certification
(Exh. "K") to the effect that Tax Declarations Nos. 22731 for Lot 822-C-1 Piedad Estate and 22732
for Lot 822-C-2 "Piedad Estate, both in the name of Domingo R. Locsin, do not appear in their Office
Tax Map, Property Index System as well as in the Assessment Roll.
On April 15, 1994, Assistant Quezon City Assessor Benjamin Kasala issued still another Certification
to the effect that per assessment records of their office, there is no property whether land or
improvement registered for taxation purposes in the name of accused Garcia (Exh. "M").
Meanwhile, Criminal Cases Nos. 36490-92 for falsification of public documents filed by the herein
complainant against the herein accused were raffled to Branch 85 of this Court then presided by the
Honorable Benjamin P. Abesamis and subsequently by the Honorable Judge Mariano M. Umali. In a
decision penned by the latter, dated May 17, 1994, the herein accused was acquitted of all the
above charges on reasonable doubt (Exh. "16-C").
On June 9, 1994, in the course of the trial of the present case, counsel for the accused, Atty. Ciriaco
O. Atienza, wrote the Land Registration Authority (Exh. "9") requesting, among others, clarification
on the finality of an order of reconstitution, apparently referring to the order of August 20, 1991 by
Reconstituting Officer Bustos (Exh. "6," supra.) which was later set aside in a Supplemental Order of
the same officer dated October 8, 1991. x x x
On August 5, 1994, herein complainant wrote another letter-request this time addressed to Mr.
Ernesto Erive, Land Management Services Chief of Surveys Division, Bureau of Lands (Exh. "V"),
for the latter to certify as to the authenticity of the technical description of Lot 822-C-2, Psd-19954, in
the name of Domingo Locsin attached to the letter-request which was one of the documents
submitted by the accused in support of her application for administrative reconstitution. In reply
thereto, Erive wrote Zuzuarregui on August 18, 1994 (Exh. "U") informing the latter that their office
(Department of Environment and Natural resources, National Capital Region) has no record of Lot
822-C-2, Psd-19954 and, hence, said technical description was not prepared by their office.
On September 30, 1994, the LRA Administrator Reynaldo Maulit came out with a Resolution (Exh.
"20") on the appeal interposed by the accused affirming the finality of LRA Administrative
Reconstitution Order No. Q-283(91) dated August 20, 1991 directing the Register of Deeds of
Quezon City to reconstitute, among others, the original of TCT No. 308462 in the name of petitionerappellant Azucena L. Garcia, accused herein and, therefore, the Supplemental Order dated October
8, 1991 could not have validly amended the aforestated order of August 20, 1991. It added, however,

that the reconstitution does not confirm nor adjudicate ownership over the property subject thereof
citing the case of Serra, Serra vs. Court of Appeals, 195 SCRA 482 (Exh. "S"). 2
Thus, petitioner was charged in Criminal Case No. Q-94-53589 with falsifying the entries in Transfer
Certificate of Title (TCT) No. 308462, forging the signature therein of Vicente N. Coloyan, and
introducing or using said TCT in support of her application for reconstitution of title. Similarly, in
Criminal Case Nos. Q-94-53590 and Q-94-53591, petitioner was charged with falsifying the entries
in Declaration of Real Property Nos. 22731 and 22732, respectively, forging the signatures therein of
Jose C. Gonzales, and introducing or using the same in support of her application before the Land
Registration Administration (LRA).
In its Decision dated April 20, 1995, the trial court found petitioner guilty of three (3) counts of
falsification of public documents. Petitioner appealed to the Court of Appeals. The appellate court,
and subsequently this Court, affirmed petitioners conviction. Entry of judgment was made on April 8,
1999.
In the instant petition, petitioner only questions the validity of the judgment rendered in Criminal
Case No. Q-94-53589. She contends that where proceedings were attended by violations of the
constitutional rights of the accused, the judgment of conviction is void thereby warranting relief by
the extraordinary legal remedy of habeas corpus. Hence, in her case, the fundamental unfairness of
the judgment, when viewed in light of the record, renders the same subject to attack for being
violative of her right to due process of law. Petitioner explains that this fundamental unfairness stems
from the omission and failure of the trial court, the prosecution and the defense counsel "to formally
project into the evidentiary stream the evidence decisive on the merits of the case, consisting of
official determinations and findings3 on the genuineness and authenticity of Vicente Coloyans
signature on the owners copy of TCT No. 308462, which underlay the different official acts of office
holders participating in the proceeding on administrative reconstitution of the original of said [TCT]
No. 308462 of the Q.C. Register of Deeds."4
Petitioner explains that the disquisition of the trial judge was totally silent on the official findings and
determinations that Coloyans signature on the owners copy of the TCT No. 308462 was genuine.
Instead, the trial judge merely relied on the testimony of Coloyan that the signature appearing on the
photocopy of TCT No. 308462 is not his. Petitioner points out that the unfairness of such reliance
becomes apparent when official determinations and findings as to the genuineness of Coloyans
signature on TCT No. 308462 are considered.
Petitioner then alleges that the prosecution failed to call the attention of the trial court to these official
determinations and findings which constituted exculpatory evidence in her favor. Petitioner further
faults the prosecution in willfully presenting Coloyan as a witness to disclaim his signature
notwithstanding indications in the record that he was hired and was possibly a corrupt witness. She
maintains that "the prosecution should have exerted their best efforts to safeguard the trial process
against this type of witness, who from all reasonable indicators is a paid and perjured witness." 5
Petitioner likewise claims that she was denied due process of law by reason of her being
represented by ineffective counsel. Petitioner illustrates that her counsel failed to formally offer in
evidence exhibits, consisting of the official acts of the Register of Deeds of Quezon City and officials
of the LRA,6 for the specific purpose of proving the genuineness of Coloyans signature. Petitioners
counsel also took no steps to bar Coloyan from being presented as a witness for the prosecution
and was not especially alert to the danger or risk of a perjured witness. In this regard, petitioner
maintains that her counsel could have asked for a deferment of the trial to give him time to make a
full investigation of the circumstances attending the presentation of Coloyan as a witness.

Petitioner concludes that the foregoing arguments and precedents warrant the grant of preliminary
injunctive relief in the form of a status quo order, and, after consideration of the merits of the case, a
writ of habeas corpusannulling the judgment of conviction rendered against her.
The Office of the Solicitor General (OSG), on the other hand, states that the writ of habeas corpus is
a remedy available to a person who is illegally imprisoned or restrained of his liberty. Consequently,
a person discharged or out on bail, like petitioner, is not entitled to the writ.
Furthermore, the ground invoked by petitioner pertains to the appreciation of evidence, a matter
which falls within the exclusive discretion and prerogative of the trial court. The OSG stresses that a
writ of habeas corpus can issue only for want of jurisdiction of the sentencing court, and cannot
function as a writ of error. As such, the writ will not lie to correct alleged mistakes of fact or of law
committed by a court in the exercise of its functions. The OSG also points out that the ground
invoked by petitioner is one which has been considered, passed upon and found to be without merit
not only by the Court of Appeals but by this Court as well. The OSG is of the view that the instant
petition is merely intended to delay the administration of justice.
We deny the petition.
The high prerogative writ of habeas corpus was devised and exists as a speedy and effectual
remedy to relieve persons from unlawful restraint.7 Its object is to inquire into the legality of ones
detention, and if found illegal, to order the release of the detainee. 8 However, it is equally well-settled
that the writ will not issue where the person in whose behalf the writ is sought is out on bail, 9 or is in
the custody of an officer under process issued by a court or judge or by virtue of a judgment or order
of a court of record, and that the court or judge had jurisdiction to issue the process, render the
judgment, or make the order.10 In the case at bar, therefore, petitioner can no longer seek relief via a
petition for habeas corpus having been convicted by final judgment of the crime of falsification of
public document and use thereof. Said judgment is already final and executory. Petitioner even
discloses that entry of judgment was made on April 8, 1999, or eight (8) months prior to the filing of
this petition. The OSG has also pointed out that petitioner is still out on bail. To this petitioner merely
replied that:
For purposes of habeas corpus, "RESTRAINT" is not confined to imprisonment or actual physical
custody. Recent federal jurisprudence has extended this to accused under final conviction, who are
out on bail, and to convicts on parole. Such jurisprudence is part of Anglo-American jueisprudence
(sic), which is highly persuasive in this jurisdiction because our law on Habeas Corpus is of AngloAmerican origin.11
Even if we disregard the fact that petitioner is out on bail, the writ prayed for should not be granted.
Indeed, we have held that once a deprivation of a constitutional right is shown to exist, the court that
rendered the judgment is deemed ousted of jurisdiction and habeas corpus is the appropriate
remedy to assail the legality of his detention.12 Petitioner, however, has failed to persuade this Court
that the proceedings before the trial court were attended by violations of her right to due process, or
for that matter, other constitutional rights.
It is apparent from the arguments advanced by petitioner that the purpose of this petition is to cause
this Court to once again re-examine and pass judgment upon the trial courts appreciation of the
evidence presented, especially the credibility of Coloyan as a witness. The Decision dated April 20,
1995 of the Court of Appeals, affirming the disquisition of the Court of Appeals, and the Resolution
dated October 27, 1998 of the Third Division of this Court, finding that no reversible error was
committed by the trial court, should have impressed upon petitioner that issues relating to the trial
courts appreciation of the evidence have already been settled and thus, can no longer be reviewed

anew by this Court. As early as the 1913 case of Trono Felipe v. Director of Prisons,13we have laid
down the rule that an application for habeas corpus cannot function as a writ of error. We explained
therein that:
But the writ of habeas corpus is not a remedy for the correction of such errors.14 Court cannot,
in habeas corpusproceedings, review the record in a criminal case after judgment of conviction has
been rendered, and the defendants have entered on the execution of the sentence imposed, to
ascertain whether the facts found by the trial court were in accordance with the evidence disclosed
by the record, or to pass upon the correctness of conclusions of law by the trial court based on the
facts thus found. Under the statute, a commitment in due form based on a final judgment convicting
and sentencing a defendant in a criminal case is conclusive evidence of the legality of his detention
under such commitment, unless it appears that the court which pronounced the judgment was
without jurisdiction or exceeded its jurisdiction in imposing the penalty. Mere errors of fact or law,
which did not have the effect of depriving the trial court of its jurisdiction over the cause and the
person of the defendant, if corrected at all, must be corrected on appeal in the form and manner
prescribed by law.15
As to the charge that the prosecution committed "manifest prosecutorial misconduct," we find the
same bereft of merit. First, the existence of exculpatory evidence is a matter of defense. As such, it
is principally the duty of the accused, not the prosecution, to bring its existence to the attention of the
court. Second, whether the Orders of Reconstitution issued by the reconstitution officer and the LRA
administrator on August 20, 1991 and September 30, 1994, respectively, as well as the reconstituted
TCT No. 308462 constitute sufficient evidence to exonerate petitioner from criminal liability, involves
appreciation and weighing of evidence, and for reasons already stated, this Court is proscribed from
again considering. Even petitioners accusation that Coloyan was a paid and perjured witness was
not supported by evidence.
Similarly, apart from her bare allegations, petitioner offered no convincing evidence to substantiate
her claim that the ineffectiveness of her counsel deprived her of her right to counsel. We specifically
note that petitioners own documentary evidence in support of the instant petition actually belies her
allegation that her counsel failed to adduce exculpatory evidence. Petitioners Formal Offer of
Exhibits before the trial court shows that among the evidence offered by her counsel were the
following:
1wphi1

Exhibit(s)

Description(s)

Purpose(s)

xxx

xxx

xxx

3, 4 and 4-A 4-B,

4-C and 4-D

(a) NBI Director's Letter dated

March 9, 1993, (Exh. 3) transmitting
to Hon. Miguel V. Sison, Jr the NBI
Questioned Documents Report No.
151-393
(b) Questioned NBI Documents
Report No. 151-391 dated March 9,
1993

(1) To prove that the NBI examined

TCT No. 308462 and the signature
of Vicente N. Coloyan
(2) To prove that the NBI findings is
that the signature of Vicente N.
Coloyan appearing n (sic) TCT No.
308462 is written by one and the
same Vicente N. Coloyan, Acting
Register of Deeds, whose standard
signatures appear on various titles

on file with the Registry of Deeds,

Quezon City
(3) to prove that this Questioned
Documents Report No. 151-393
submitted by Document Examiner
Rogelio G. Azores was approved by
NBI
(4) To prove that TCT No. 308462 is
genuine, not falsified

xxx

xxx

xxx

6
Adm. Reconstitution Order No. Q283 (91) issued on August 20, 1991
by Land Registration Authority (LRA)
through the Reconstitution Officer,
Atty. Benjamin Busto

(1) To prove that the LRA approved

the Administrative Reconstitution of
the Accused's TCT No. 308462 for
Lot 822-C-1 and Lot 822-C-2,
Piedad Estate
(2) To prove that this Adm.
Reconstitution Order had already
acquired finality when the
reconstitution of TCT No.308462
was recalled by Atty. Busto
(3) To prove that TCT No. 308462 is
genuine, not falsified16 (Underscoring
ours)

It appears, however, that these documents were among the official acts repeatedly cited by
petitioner as presupposing official determination and findings that Coloyans signature on TCT No.
308462 was genuine and, therefore, allegedly constituted evidence exempting petitioner from
criminal liability. Petitioner faulted her counsel in Criminal Case No. Q-94-53589 for being ineffective
in that her counsel allegedly failed to formally offer in evidence the said documents but the record
shows that her counsel did not fail to do so.
1wphi1

Significantly, it is not disputed that petitioner appealed the adverse Decision or judgment of
conviction dated April 20, 1995 of the RTC of Quezon City to the Court of Appeals; that the Court of
Appeals and later this Court affirmed the conviction of the petitioner; and that Entry of Judgment was
made on August 8, 1999. The petitioner, therefore, may not validly resort to this present petition for
habeas corpus in lieu of her lost or dismissed appeal in the said criminal case. The petition of herein
petitioner who is out on bail, appears to be patently intended for delay.
WHEREFORE, petitioner Azucena L. Garcia, having failed to establish sufficient cause to warrant
issuance of a writ of habeas corpus, the instant petition is hereby DENIED.

SO ORDERED.