SECOND DIVISION On April 28, 1995, Lateo, Elca, and Baldemor

(petitioners), along with Orlando Lalota (Lalota) and

Nolasco de Guzman (De Guzman), were charged
ELVIRA LATEO y ELEAZAR, FRANCISCO ELCA y ARCAS, G.R. No. estafa in an information, which reads:
with161651

and BARTOLOME BALDEMOR y MADRIGAL,

Petitioners, Present:
That on or about April 27, 1995, in Pasay
City, Metro Manila and within the
jurisdiction of this Honorable Court,
CARPIO, J.,
accused ELVIRA LATEO y ELEAZAR,

Chairperson, conspiring and confederating with

FRANCISCO ELCA y ARCAS,
- versus - NACHURA,
BARTOLOME BALDEMOR y MADRIGAL,

BERSAMIN,* ORLANDO LALOTA and NOLASCO DE

GUZMAN, and mutually helping one
ABAD, and
another, acting in common accord, by
means
DEL CASTILLO, *
JJ. of deceit, that is, by falsely
representing themselves to be the true
PEOPLE OF THE PHILIPPINES, and [lawful] owner of a piece of land

Respondent. Promulgated:located in the province of Cavite, and

possessing power, influence,

qualification, property, credit, agency,

June 8, 2011 business, or imaginary transactions and

by means of other similar deceits, did

then and there, willfully, unlawfully and

x---------------------------------------------------------------- feloniously induce ELEONOR LUCERO to

--------------------x part with her money in the amount of

TWO MILLION (P2,000,000.00) PESOS,

Philippine Currency, as indeed she

DECISION parted only with the amount of Two

Hundred Thousand (P200,000.00)
PESOS, Philippine Currency, which said

NACHURA, J.: accused actually received in marked

Philippine Currency, to the damage and

prejudice of said ELEONOR LUCERO in

the aforestated amount of Two Hundred

On appeal is the August 7, 2003 Decision [1] of the
Court of Appeals (CA) in CA-G.R. CR No. 23240, which Thousand Pesos (P200,000.00) PESOS

affirmed with modification the March 17, 1998 Philippine Currency.

decision[2] of the Regional Trial Court (RTC) of Pasay City,
Branch 109, convicting Elvira Lateo (Lateo), Francisco Elca
(Elca), and Bartolome Baldemor (Baldemor) of CONTRARY TO LAW.[3]
attempted estafa.

1
 When arraigned on May 31, 1995, petitioners, seven (27) hectares of Plan A-7 of the
with the assistance of their counsel, entered their Mutinlupa Estate, situated in Barrio
respective pleas of not guilty. Accused Lalota and De Magdaong, Poblacion,
Guzman remained at large. Muntinlupa. However, [in] December

1994, when [Lucero] verified with the

Registry of Deeds of Makati, she
Trial on the merits then ensued. The prosecutions
discovered that the aforesaid titles of the
version of the facts is summarized by the CA in this wise:
property were actually registered in the

names of Marc Oliver R. Singson, Mary

Sometime in 1994, [petitioners] Jeanne S. Go and Feliza C. Torrigoza.

Lateo and Elca proposed that [Lucero]

finance the titling of the 122 hectares of

land located in Muntinlupa allegedly [Lucero] confronted [petitioners] and

owned by [petitioner] Elca as the sole demanded from them [the] return of the

heir of Gregorio Elca. Title to the money. She was told that they did not

property had not been transferred to have any money to return. They instead

[petitioner] Elcas name because of a offered a five (5) hectare property

certain discrepancy between the Deed of identified as Lot 10140 of Plan Sgs 04213-

Sale and TCT No. 77730. [Petitioner] Elca 000441 located at

offered to assign to [Lucero] 70 hectares Bacoor, Cavite allegedly owned by

of said land. She was then introduced to [petitioner] Elca. [Petitioner] Elca,

[petitioner] Baldemor, Orlando Lalota however, demanded an additional P2

and Nolasco de Guzman. million for the transfer of title.

[Lucero] released to [petitioners] When [Lucero] verified with the Land

about P4.7 million in staggered Management Bureau (LMB), she

amounts. [Petitioner] Elca told [Lucero] discovered that [petitioner] Elca only had

that certain portions of the property will a pending application for the sales

first be put in the name of [petitioner] patent over a four (4)[-hectare] area of

Lateo and would later be assigned to the subject land. These

her. [Lucero] was given a Deed of Sale misrepresentations prompted her to file

dated March 27, 1987. [Petitioner] Elca a complaint with the Task Force

likewise executed an irrevocable Special Kamagong, PACC, Manila.

Power of Attorney in favor of

[Lucero]. Later, she was presented

certified true copies of three (3) titles, On April 26, 1995, the task force

TCT Nos. 195550, 195551 and 195552 conducted an entrapment at Furosato

issued by the Register of Deeds of Restaurant. [Petitioners] were

Makati City in the name of [petitioner] apprehended in possession of marked

Lateo covering approximately twenty- 100-peso bills amounting to P100,000.00,

supposedly in exchange for the Deed of

2
 Assignment prepared by [Lucero] for [Lucero]. [Petitioner] Elca would guard

their transaction.[4] the property to keep off squatters. He

and his wife were instructed to sign all

documents prepared by Oscar Lalota.

Petitioners version, on the other hand, is summed up as
follows:

In December 1994, [Lucero] told

[petitioner] Elca that upon verification

Sometime in 1994, [Lucero], [petitioner]
from the Registry of Deeds of Makati
Lateo, Oscar Lalota met with [petitioner]
City, she found out that all the
Elca in Muntinlupa to discuss the
documents submitted by Oscar Lalota
proposal of [Lucero] to finance the titling
pertaining to their transaction were
of [petitioner] Elcas land.
falsified. Oscar Lalota disappeared after

getting the money.

On June 28, 1994, in a meeting called by

[Lucero], she laid down the terms and

In order to recover her losses from the
conditions regarding her plans to finance
anomalous transaction, [Lucero] offered
the titling of [petitioner] Elcas land. She
to purchase [petitioner] Elcas property
proposed that 22 out of the 122 hectares
in Cavite. [Petitioner] Elca agreed to sell
of the land would be given to the old
2 hectares of his property at a price
tenants of the property, the 30 hectares
of P100.00 per square meter. [Petitioner]
would be titled in the name of
Elca informed [Lucero] that the land was
[petitioner] Elca as his retained share and
not yet titled although the documents
the other 70 hectares would be her profit
had already been completed. [Lucero]
as financier of the transaction. [Lucero]
agreed to pay in advance the amount
would also pay P10.00 for every square
of P200,000.00 for the immediate titling
meter of the 70 hectares or a total
of the land.
amount of P7 million. All the expenses
for the titling and management of the
land would be deducted from P7
On December 21, 1994, however,
million. The remaining balance would
[Lucero] gave no advance
then be given to [petitioners].
payment. [Petitioner] Elca was made to
return [in] January 1995. On that date still

[Lucero] made no payment.

[Lucero] assigned Oscar Lalota to work
for the titling of the land and to prepare

all documents necessary thereto.

On [April] 25, 1995, [Lucero] promised to
[Petitioner] Baldemor would act as
give the P200,000.00 advance payment
overseer of the transaction as [Luceros]
at Furosato Restaurant [on] Roxas
attorney-in-fact. [Petitioner] Lateo would
Boulevard, Pasay City. Having failed to
serve as secretary and assistant of
contact his lawyer, on [April] 26, 1995,
3
[petitioner] Elca went alone to Furosato After trial, the RTC rendered a decision[6] dated March 17,
Restaurant. Because of the absence of 1998, viz.:

[petitioner] Lateo, [Lucero] postponed

their meeting to [April] 27, 1995.

It should be noted that the transaction
over the Cavite property was a
continuation of and is somehow related
When [petitioner] Elca arrived at
to their first transaction. The same was
Furosato Restaurant on [April] 27, 1995,
offered to [Lucero] in lieu of the
[Lucero] and her lawyer Atty. Velasquez,
Muntinlupa property with Francisco Elca
[petitioners] Lateo and Baldemor and
telling [Lucero] just to add another two
Atty. Ambrosio were already there. Atty.
million (P2,000,000.00) pesos plus
Velasquez, upon the order of [Lucero],
expenses for titling and the property can
produced a document entitled Contract
be transferred to her.
to Sell outlining their agreement over
the 2 hectares of land in
Bacoor, Cavite.Atty. Ambrosio examined
The second transaction which covers the
the contract to find out if it contains the
Bacoor property was again an attempt to
terms and conditions agreed
defraud [Lucero] when Francisco Elca
upon. Attys. Velasquez and Ambrosio
again represented himself as the owner
made their own handwritten corrections
of the said property when in truth and in
in the contract including the change of
fact his right was merely derived from his
the title from Contract to Sell to Deed of
application to purchase Friar Lands
Assignment, after which, both of them
dated June 25, 1992 which at the time of
signed the document. [Petitioner] Elca
the transaction was still being protested
and [Lucero] signed the document as
as shown by the Investigation Report of
parties while [petitioners] Lateo and
Rogelio N. Bruno, Special Investigator II,
Baldemor signed as witnesses.
DENR, Land Management Bureau
(Exhibit LLLL) hence accused has no right
and/or authority to deliver or transfer
After the signing of the Deed of
the ownership over said parcel of land to
Assignment, [Lucero] brought out
[Lucero].
the P200,000.00 as the promised
payment for the land. While [petitioner]
Baldemor was counting the money, Atty.
In the case of Celino vs. CA 163 SCRA 97,
Velasquez and [Lucero] went to the
it was held that Estafa under Art. 315 (2)
comfort room. Thereafter, several agents
(a) of the Revised Penal Code is
of the PACC approached them. They
committed by means of using fictitious
were arrested and brought to the NBI
name or falsely pretending to possess
Headquarters.[5]
power, influence, qualifications, property,
credit, agency, business or imaginary

transaction or by means of other similar

4
deceits. Further, in the case of Villaflor vs. absence of proof thereof, the offender
CA 192 SCRA 680, the Supreme Court would x x x be guilty of attempted
held: what is material is the fact that estafa. Appellant commenced the

appellant was guilty of fraudulent commission of the crime of estafa but he

misrepresentation when knowing that failed to perform all the acts of execution
the car was then owned by the Northern which would produce the crime not by
Motors, Inc., still he told the private reason of [their] spontaneous desistance
complainant that the car was actually but because of his apprehension of the

owned by him for purposes of and at the authorities before they could obtain the

time he obtained the loan from the amount. Since only the intent to cause
latter. Indubitably, the accused was in damage and not the damage itself has
bad faith in obtaining the loan under been shown respondent court correctly

such circumstance. convicted appellant of attempted estafa.

The attempt to defraud the complainant The culpability of x x x the

did not materialize due to the timely accused is strengthened by the transfer
intervention of the Task Force of his rights over the same subject land

Kamagong operatives. in Cavite in favor of Leticia Ramirez

(Exhibit NNNN) thus clearly influencing

his intention to defraud herein

Art. 6, par. 3 of the Revised Penal Code complainant as the same shows his lack

provides that there is an attempt when of intent to transfer his rights and/or

the offender convinces (sic) the ownership to complainant.

commission of a felony directly by overt

acts and does not perform all the acts of
execution which should produce the The representations made by

felony by reason of some cause or Francisco Elca that he owns the property
accident other than his own in Bacoor, Cavite, his having offered the
spontaneous desistance. The entrapment same again to the complainant in lieu of
thus prevented the consummation of the the aborted deal in the Muntinlupa

transaction over the Cavite property. property their constant follow-up of

complainants decision over the matter
convincing the complainant to accept
the offer and their persona[l] presence at
the place of entrapment and their

receipt of the P100,000.00 marked

x x x [I]n the case of Koh Tieck
money which they even counted one
Heng vs. People 192 SCRA 533, the
after the other, thus making all of them
Court held [that] although one of the
positive of the presence of fluorescent
essential elements of Estafa is damage or
powder. Those among others indicate
prejudice to the offended party, in the
strongly that all three accused Francisco
5
 Elca, Elvira Lateo and Bartolome attempted estafa is not in
Baldemor attempted to deceive and accordance with the evidence

defraud complainant Eleanor Lucero. [7] on record.

The RTC decreed that: III. That the Honorable Court erred in the
imposition of the appropriate

penalty based on its findings

IN VIEW OF ALL THE
assuming without admitting
FOREGOING, the Court finds all accused
that they (three accused) are
Francisco Elca, Elvira Lateo and
guilty of attempted estafa.[11]
Bartolome Baldemor guilty beyond

reasonable doubt of attempted Estafa

and is hereby sentenced to The CA was not at all persuaded by petitioners
imprisonment of Ten (10) years and One arguments and sustained petitioners conviction, although
(1) Day to Twelve (12) Years. with modification as to the penalty imposed. The decretal
portion of the CA Decision reads:

SO ORDERED.[8]
WHEREFORE, premises

considered, the assailed decision is

Petitioners filed a motion for hereby AFFIRMED with MODIFICATION a

reconsideration,[9] but the RTC denied it on December 28, s to the penalty imposed. [Petitioners]

1998.[10] Elvira E. Lateo, Francisco A. Elca and

Bartolome M. Baldemor are hereby

sentenced to suffer an indeterminate

Petitioners appealed to the CA, assigning in their penalty of six (6) months of arresto
brief the following errors allegedly committed by the trial mayor as minimum, to four (4) years and
court:
two (2) months of prision correccional, as

maximum.

I. That with due respect to the Honorable

Court, it is respectfully submitted

Cost against [petitioners].
that it erred in finding that THEY
ARE GUILTY OF THE CRIME OF
ATTEMPTED ESTAFA UNDER
SO ORDERED.[12]
ARTICLE 315 PAR. 2(a) OF THE

REVISED PENAL CODE.

II. That the basis of the findings of the Petitioners filed a motion for
Honorable Court that they reconsideration, [13]
but their motion also suffered the

(three accused) are guilty of same fate, as the CA denied it on January 12, 2004. [14]

6
 xxxx

Before us, petitioners insist that their conviction

lacked factual and legal basis. They assail the RTC finding,
2. By means of any of the
which was sustained by the CA, that the transaction
involving the Bacoor property was again an attempt to following false pretenses or fraudulent

defraud Eleonor Lucero (Lucero). Petitioners deny that acts executed prior to or simultaneously
they deceived Lucero. They claim that Lucero was aware with the commission of the fraud:
that the Bacoor property is not yet titled in the name of
Elca; and that they went to Furosato restaurant upon
Luceros invitation and on Luceros representation that she
(a) By using fictitious name, or
would hand to them the P200,000.00 needed to facilitate
falsely pretending to possess
the issuance of title in Elcas name. Petitioners, therefore,
power, influence, qualifications,
plead for an acquittal. Finally, petitioners assail the
property, credit, agency,
penalty imposed by the CA for being erroneous.
business or imaginary
transactions; or by means of

The Office of the Solicitor General (OSG), on the other similar deceits.

other hand, asserts that the CA correctly sustained

petitioners conviction for attempted estafa. However, it
recommends for further modification of the penalty to six The elements of the felony are as follows:
(6) months of arresto mayor.

1. That there must be a false

Inarguably, the resolution of the issues raised by pretense, fraudulent act or
petitioners requires us to inquire into the sufficiency of fraudulent means.
the evidence presented, including the credibility of the
2. That such false pretense,
witnesses, a course of action which this Court will not do,
fraudulent act or fraudulent means
consistent with our repeated holding that this Court is
must be made or executed prior to
not a trier of facts. Basic is the rule that factual findings of
or simultaneously with the
trial courts, including their assessment of the witnesses
commission of the fraud.
credibility, are entitled to great weight and respect by this
Court, particularly when the CA affirms the findings. [15] 3. That the offended party must
have relied on the false pretense,
fraudulent act, or fraudulent means,

It is true that the rule admits of several that is, he was induced to part with

exceptions,[16] but none of the recognized exceptions is his money or property because of

present in the case at bar. the false pretense, fraudulent act, or

fraudulent means.

4. That as a result thereof, the

Article 315(2)(a) of the Revised Penal Code lists offended party suffered damage. [17]
the ways by which estafa may be committed, which
includes:

We agree with the finding of the trial court that

the transaction involving the Bacoor property was a
Art. 315. Swindling (estafa). x x x.
continuation of the transaction involving parcels of land
7
in Muntinlupa, Metro Manila. When Lucero discovered properties in that area is P450.00 per
that Elcas certificates of title over the Muntinlupa square meter and hence, the property
property were fake, Elca offered, as substitute, the 5- will be more [than] sufficient to cover our
hectare portion of his purported 14-hectare lot in Bacoor, obligates (sic).
Cavite, but asked for an additional P2,000,000.00, in this
wise:

Please be guided accordingly.

Dear Ms. Lucero:

Very truly yours,

This is with reference to the advances we

had obtained from you in the total

(Signed)
amount of P4.7 million, more or less. It
was agreed that the said advances shall Francisco N. Elca
be due and demandable upon the
Bo. Katihan, Poblacion
release of titles over my parcels of land
situated in Muntinlupa, Metro Manila of Muntinlupa, Metro Manila[18]
which we are presently working out with
appropriate government agencies. Your
current demand fro[m] us to pay the
aforesaid amount plus your unilaterally
As it turned out, Elca did not own 14 hectares in
imposed interests is therefore premature
Bacoor, Cavite. He merely had an inchoate right over the
and baseless.
Bacoor property, derived from his Application to
Purchase Friar Lands, which covered only 7
hectares.[19] Elcas application was later amended to cover
However, with regards to your only 4 hectares, in view of the protest by Alfredo Salenga
alternative demand that you be given a (Salenga).[20] Clearly, Elca was in no position to transfer
total of 5 hectares (2 has. upon signing ownership of the 5-hectare Bacoor property at the time
of an agreement assigning my rights and petitioners offered it to Lucero.

additional 3 has. upon complete release

of the remaining 14 hectares) please be
informed that I am now amenable, In Alcantara v. Court of Appeals,[21] this Court,
citing People v. Balasa,[22] explained the meaning
provided that an additional P2.0 million
of fraud and deceit, viz.:
will be paid to me to take care of my

other personal commitments. These 5

hectares are situated in Malipay,
[F]raud in its general sense is deemed to
Bacoor, Cavite with a portion
comprise anything calculated to deceive,
of Lot 10140 of Plan Sgs-04213-000441-
including all acts, omissions, and
D. I am expecting the title of said
concealment involving a breach of legal
property early next year. The current
or equitable duty, trust, or confidence
market [valuation] of real estate
justly reposed, resulting in damage to

8
 another, or by which an undue and only the intent to cause damage and not the damage
unconscientious advantage is taken of itself had been shown,[24] the RTC and the CA correctly

another. It is a generic term embracing convicted petitioners of attempted estafa.

all multifarious means which human

ingenuity can device, and which are

On the penalty. The RTC sentenced petitioners to
resorted to by one individual to secure
an imprisonment term of ten (10) years and one (1) day to
an advantage over another by false
twelve years. The CA modified it to six (6) months
suggestions or by suppression of truth
of arresto mayor, as minimum, to four (4) years and two
and includes all surprise, trick, cunning,
(2) months of prision correccional, as maximum.
dissembling and any unfair way by which
another is cheated. And deceit is the
false representation of a matter of fact Petitioners and the OSG both argue that the
whether by words or conduct, by false or penalty imposed by the CA was wrong, and plead for its
misleading allegations, or by modification.

concealment of that which should have

been disclosed which deceives or is
The penalty for estafa depends on the amount
intended to deceive another so that he
defrauded. Thus, if the crime of estafa had been
shall act upon it to his legal injury.
consummated, Lucero would have been defrauded in the
amount of P100,000.00.[25] Hence, the applicable penalty
under Article 315 of the Revised Penal Code (RPC) would
Indubitably, petitioners parody that Elca owned
have been prision correccional in its maximum period
14 hectares in Bacoor, Cavite, and was offering a 5-
to prision mayor in its minimum period, with an
hectare portion of it, in substitution of the Muntinlupa
additional one (1) year for every P10,000.00 in excess of
property, and demanding an additional P2,000,000.00
the first P22,000.00; provided, that the total penalty
from Lucero, constituted fraud and deceit.
should not exceed twenty years.

To reiterate, it is an oft-repeated principle that

Since what was established was only
the factual findings of the trial courts, including their
attempted estafa, then the applicable penalty would be
assessment of the witness credibility, are entitled to great
that which is two degrees lower than that prescribed by
weight and respect by this Court, particularly when the
law for the consummated felony pursuant to Article
CA affirms the findings.[23] Considering that there is
51,[26] in relation to Article 61(5), [27] of the
nothing in the records that shows that the factual
RPC. Accordingly, the imposable penalty would
findings of the trial court and the appellate court were
be arresto mayor in its medium period to arresto
erroneous, we affirm their conclusion that petitioners
mayor in its maximum period,[28] or an imprisonment
attempted to defraud Lucero again.
term ranging from two (2) months and one (1) day to six
(6) months. And because the amount involved
exceeded P22,000.00, one (1) year imprisonment for
Undoubtedly, petitioners commenced the every P10,000.00 should be added, bringing the total to
commission of the crime of estafa but they failed to seven (7) years.
perform all the acts of execution which would produce
the crime, not by reason of their own spontaneous
desistance but because of their apprehension by the
authorities before they could obtain the amount. Since

9
 However, we agree with the OSG that it would
be inequitable to impose the additional incremental
penalty of 7 years to the maximum period of penalty,
considering that petitioners were charged and convicted
merely of attempted and not consummated estafa. We,
therefore, modify the penalty and sentence petitioners to
imprisonment of four (4) months of arresto mayor.
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Courts
Division.
ANTONIO T. CARPIO

Associate Justice
WHEREFORE, the petition is DENIED. The assailed
Decision and Resolution of the Court of Appeals in CA- Chairperson, Second Division

G.R. CR No. 23240 are AFFIRMED. Petitioners Elvira Lateo,

Francisco Elca, and Bartolome Baldemor are found guilty
beyond reasonable doubt of attempted estafa, and are CERTIFICATION
hereby sentenced to suffer the penalty of four (4) months
of arresto mayor.

SO ORDERED. Pursuant to Section 13, Article VIII of the Constitution and

the Division Chairpersons Attestation, I certify that the
conclusions in the above Decision had been reached in
ANTONIO EDUARDO B. NACHURA consultation before the case was assigned to the writer of

the opinion of the Courts Division.

Associate Justice

RENATO C. CORONA

WE CONCUR:
Chief Justice

ANTONIO T. CARPIO

Associate Justice

Chairperson

LUCAS P. BERSAMIN ROBERTO A. ABAD

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

ATTESTATION

10