MEMORANDUM

FOR : RUDY V. ORTEA

Solicitor General

FROM : CHERISH EUNICE M. NAVARRO

Associate Solicitor III

SUBJECT :Comment on the Manifestation in Lieu of

Appellee’s Brief in People v. Velasco.

DATE : 14 April 2018

Dear Chief:

This memorandum is with regard to the Manifestation

in lieu of appellee’s brief in People v. Velasco.

It is the humble submission of the undersigned that a

regular appellee’s brief be filed based on the following points:

The trial court correctly convicted the accused of the

crime of Qualified Theft beyond reasonable doubt.

Appellant’s contention that the element of intent to gain

should have been proven beyond reasonable doubt is
erroneous and must fail. In the 2018 case of People v.
Mejares1, the Supreme Court reiterated that: This Court has
been consistent in holding that "intent to gain or animus
lucrandi is an internal act that is presumed from the
unlawful taking by the offender of the thing subject of
asportation. [Thus,] [a]ctual gain is irrelevant as the
important consideration is the intent to gain. (emphasis and
underscoring supplied)

Intent to gain is presumed from the unlawful taking.

There is thus no need to prove this intent beyond reasonable
doubt.

The element of unlawful taking was likewise sufficiently

proven in the case at bar. The Supreme Court, in affirming
the below-quoted ruling of the CA in the case of Pideli v.
1 G.R. No. 225735, January 10, 2018.
Memorandum for the Solicitor General
People v. Velasco
CA G.R. CR No. 37151
Page 2 of 3
x--------------------------------------------------x

People2, held that the failure to return the money constitutes

the element of “taking”, to wit:

Appellant's failure to do so or
to return the money to the private
complainant renders him guilty of the
crime of theft. This is in line with the
rulings of the Supreme Court in the case of
United States vs. de Vera, 43 Phil. 1000
(1929) that the delivery of money to another
for a particular purpose is a parting with its
physical custody only, and the failure of the
accused to apply the money to its specific
purpose and converting it to his own use
gives rise to the crime of theft. The basic
principles enunciated in the de Vera case
was reiterated in the recent case ofPeople vs.
Tan, 323 SCRA 30, an Anti-Carnapping
case, where the High Court ruled that
the unlawful taking or deprivation may
occur after the transfer of physical
possession and, in such a case, "the article
(is considered as being) taken away, not
received, although at the beginning the
article was, in fact, given and received." We
agree with the Office of the Solicitor General
(OSG) that appellant had but the
material/physical or de facto possession of
the money and his act of depriving private
complainant not only of the possession but
also the dominion (apoderamiento) of his
share of the money such that he (the
appellant) could dispose of the money at will
constitutes the element of "taking" in the
crime of theft. (underscoring in the
original, emphasis supplied)

2 G.R. No. 163437, February 13, 2008, 568 PHIL 793-809.

Memorandum for the Solicitor General
People v. Velasco
CA G.R. CR No. 37151
Page 3 of 3
x--------------------------------------------------x

Thus, appellant’s contention that there was no unlawful

taking since the subject property was merely held for
“safekeeping” and that there was intention to return should
not be given any credence for being completely self-serving
and without any legal basis. The fact that appellant FAILED
TO RETURN the property already constituted the element of
taking.

Intent to return is a state of mind. If all thieves would

invoke this defense of “having an intention to return negates
unlawful taking”, there would be no convictions for theft
anymore.

Appellant also erred in submitting that there was no

grave abuse of confidence. The grave abuse of confidence
must be the result of the relation by reason of dependence,
guardianship, or vigilance, between the appellant and the
offended party that might create a high degree of confidence
between them which the appellant abused.3|

Appellant’s position as Branch Manager entails a

fiduciary position of trust and confidence, this much can be
deduced from her own admission that she was entrusted to
“safekeep” the property. Grave abuse of confidence therefore
attended the crime. The trial court correctly convicted
appellant of the crime of Qualified Theft.

Respectfully submitted.

Truly yours,

CHERISH EUNICE M. NAVARRO