FIRST DIVISION

[ G.R. No. 196258, September 28, 2015 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. BONIFACIO DANDANON Y

ILIGAN A.K.A. "BONING," ACCUSED-APPELLANT.

DECISION

LEONARDO-DE CASTRO, J.:

For Our review is the Decision[1] dated December 20, 2010 of the Court of Appeals, Cagayan de
Oro City, in CA-G.R. CR-H.C. No. 00611-MIN, affirming with modification the
Judgment[2] dated February 28, 2008 of the Regional Trial Court (RTC) of Agusan del Norte and
Butuan City, Branch 2, in Criminal Case No. 11737, which found accused-appellant Bonifacio
Dandanon y Iligan a.k.a. "Boning" guilty beyond reasonable doubt of the crime of murder under
Article 248 of the Revised Penal Code of the Philippines and sentenced him to reclusion
perpetua.

On May 2, 2006, an Information[3] was filed with the RTC of Agusan del Norte and Butuan City,
Branch 2 charging accused-appellant and two other unidentified men with murder allegedly
committed thus:

The undersigned accuses BONIFACIO DANDANON Y ILIGAN a.k.a. "Boning." RICHARD

DOE and JOHN DOE of the crime of Murder, committed as follows:

That at more or less 4:30 P.M. of April 7, 2006 along the National Highway, Dumalagan, Butuan
City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one another, with evident premeditation and with
treachery, did then and there willfully, unlawfully and feloniously attack, assault and shot (sic)
one Godofredo R. Paceño, Jr. with the use of an unknown caliber firearm hitting the latter on his
head, which caused his instantaneous death.

CONTRARY TO LAW: (Article 248 of the Revised Penal Code as amended by R.A. No. 7659)

During his arraignment on June 21, 2006, accused-appellant pleaded not guilty to the crime
charged against him.[4]Trial ensued thereafter.

According to the evidence[5] presented by the prosecution, at around 3:00 in the afternoon on
April 7, 2006, accused-appellant and his two companions went inside Carlos Place Restaurant
and ordered batchoy. They were the only customers at that time. Helen Monterde (Monterde),
the helper on-duty, served their orders and sat at a table next to them. Monterde described one
customer, whom she later identified as accused-appellant, as about 40 years of age, 5'2" to 5'4"
tall, with a big stomach and thin beard, wearing an orange t-shirt and maong pants. One of
accused-appellant's companions was wearing a white shirt and cargo pants while the other was
wearing a white blazer and pants. The three men left upon finishing their meal and proceeded to
the waiting shed, about ten meters away from the restaurant. A few minutes later, accused-
appellant and the man wearing a white shirt returned to buy cigarettes. In the meantime,
Prosecutor Godofredo R. Paceño, Jr. (Paceño) and his companion arrived at the restaurant and
also ordered batchoy. Monterde noticed that accused-appellant and his companion hurriedly left
after seeing Paceño.

Around 4:00 in the afternoon of even date, Paceño boarded a multicab in front of the GSIS
Building along J.C. Aquino Avenue, Butuan City. Paceño sat at the rightmost corner of the
multicab, behind the front passenger's seat. On Paceño's left sat Daniel Deloso (Deloso),
followed by Gretchen Zaldivar (Zaldivar). Accused-appellant boarded the same multicab just a
few meters away and sat at the leftmost corner, behind the driver's seat, right across Paceño, and
beside Joanne Ruales (Ruales).

While traversing the highway in Barangay Dumalagan, Butuan City, accused-appellant suddenly
pulled out a gun and shot Paceño twice. Paceño sustained multiple gunshot wounds on his head,
thereby causing his death.[6] Arturo Quiban (Quiban), the driver, thought that a tire blew up so he
stopped the multicab at the roadside. Accused-appellant alighted from the vehicle, warning the
other passengers not to make any noise, and then boarded a motorcycle that was trailing the
multicab.

Quiban immediately drove the multicab to the Buenavista Police Station to report the incident,
with the other passengers alighting at their respective destinations along the way. Paceño's wife
and relatives were notified of his death.

Task Force Paceño, composed of members of the Philippine National Police (PNP), Criminal
Investigation and Detection Group (CIDG), the National Bureau of Investigation (NBI), and
other law enforcement agencies, was created to investigate, gather evidence, arrest, and file the
necessary charges against the suspect(s). Two witnesses, Zaldivar and Ruales, were able to
identify accused-appellant from a photo montage as the gunman. Consequently, accused-
appellant was arrested and charged with murder.

Evidence submitted by the defense presented a different version of events. Accused-appellant

himself denied any involvement in the crime, proffering an alibi.

At around 2:00 in the afternoon on April 7, 2006, accused-appellant, a member of the Manobo
tribe and a civilian military volunteer (CAFGU), attended a tribal meeting held at the residence
of his relative, Libano Ilagan (Ilagan) a.k.a. Datu Kaligtasan, in Sibagat, Agusan del Sur. The
meeting was held to discuss the proposal of Soriano Banana Plantation to use Ilagan's ancestral
land as its banana plantation site. When the meeting ended at around 4:00 in the afternoon,
accused-appellant and Ilagan left the house to speak with several persons. At around 6:00 in the
evening, accused-appellant and Ilagan returned to the latter's residence where accused-appellant
stayed until April 12, 2006.

The defense called to the witness stand Ilagan, Police Inspector (P/Insp.) Celso Acero, Jr.
(Acero), Nenita Pagios (Pagios), Atty. Gil Cembrano (Cembrano), and Sergeant (Sgt.) Antonio
Adora (Adora), to corroborate accused-appellant's alibi. As was recounted in their collective
testimonies, accused-appellant arrived in Sibagat, Agusan del Sur on April 6, 2006 and stayed
overnight at Ilagan's house. Around 10:00 in the morning to 12:00 noon of the next day, April 7,
2006, Atty. Cembrano, a certain Siegfried Cembrano, and Ilagan discussed the plan for the
banana plantation with the Community Environment and Natural Resources Officer in Bayugan,
Agusan del Sur. At around 2:00 in the afternoon, Atty. Cembrano dropped off Ilagan at the
latter's residence where he saw accused-appellant who just woke up from an afternoon nap. A
tribal meeting was held at Ilagan's house starting at about 2:00 and ending at 3:30 in the
afternoon. During the meeting, accused-appellant went out and bought a 3-in-1 coffee sachet and
bread from an adjacent sari-sari store owned by Pagios. At around 3:20 that same afternoon,
P/Insp. Acero passed by Ilagan's house where he saw accused-appellant and Ilagan talking to
each other. Accused-appellant and Ilagan left Ilagan's house and from 4:00 to 5:00 in the
afternoon, looked for and spoke with Mario Gomez, Emelio Cayawan, and Mario Mahayhay
about the hiring of trucks for the transportation of logs to Sibagat. On their way home at 5:30 in
the afternoon, accused-appellant and Ilagan met and spoke with Sgt. Adora for a few minutes.
Accused-appellant and Ilagan arrived at the latter's house at 6:00 in the evening and accused-
appellant stayed at said house for the night.

On February 28, 2008, the RTC promulgated a Decision finding accused-appellant guilty of the
crime charged and sentencing him as follows:

WHEREFORE, in the light of the foregoing, the Court finds accused BONIFACIO
DANDANON Y ILIGAN, GUILTY BEYOND REASONABLE DOUBT of the crime of
MURDER defined and penalized under Article 248 of the Revised Penal Code, and hereby
sentences him to an imprisonment of Reclusion Perpetua and to pay the heirs of the victim:

a) Loss of Earning Capacity in the sum of P3,200,319.40;

b) Moral damages in the sum of P50,000.00;

c) Exemplary damages in the sum of P25,000; and

d) Cost.
Accused Bonifacio Dandanon y Iligan in the service of his sentence shall be credited in his favor
the period of his preventive imprisonment that he has already undergone under Article 29 of the
Revised Penal Code and R.A. No. 6127 and shall serve his sentence at Davao Prison and Penal
Farm, Panabo City, Philippines.[7]

Accused-appellant appealed the foregoing RTC judgment before the Court of Appeals, based on
the following assignment of errors:

I. THE LOWER COURT ERRED IN FINDING THE TESTIMONIES OF THE ALLEGED

EYEWITNESSES CREDIBLE BEYOND REASONABLE DOUBT.

II. THE LOWER COURT ERRED IN DISMISSING THE ACCUSED (sic) IRON CLAD
DEFENSE OF ALIBI.

III. THE LOWER COURT ERRED IN NOT APPRECIATING THE IRREGULARITIES IN

THE PRIOR INVESTIGATION AND THE OUT OF COURT IDENTIFICATION
PROCEEDINGS SMACKED OF THE ELEMENTS OF A SET UP THAT LED TO THE
PROSECUTION AND CONVICTION OF THE ACCUSED.[8]

In its Decision dated December 20, 2010, the Court of Appeals gave scant consideration to
accused-appellant's arguments on the alleged irregularities in the police investigation and out-of-
court identification by witnesses of accused-appellant, and the inconsistencies in the sworn
statements of the prosecution witnesses. The Court of Appeals ruled that accused-appellant failed
to prove ill motive on the part of the prosecution witnesses in identifying him as the one who
killed Paceño; and that it was physically impossible for him to be at the scene of the crime at the
time it was committed. The appellate court also found no merit in accused-appellant's contention
that his non-flight signified his innocence. Concluding that accused-appellant's identity and
involvement in the crime were established beyond reasonable doubt by the prosecution, the
Court of Appeals decreed:

WHEREFORE, premises considered, this appeal is DISMISSED. The assailed Decision of the
Regional Trial Court, Branch 2, Butuan City, in Criminal'Case No. 11737
is AFFIRMED with MODIFICATIONS. Accused-appellant is found guilty beyond reasonable
doubt of the crime of Murder. He is sentenced to imprisonment of reclusion perpetua. Accused-
appellant is further ordered to pay the heirs of the victim the following sums: P50,000.00, as
moral damages; P30,000.00, as exemplary damages; and P50,000.00 civil indemnity.[9]

Hence, the instant appeal.

In a Resolution[10] dated June 13, 2011, this Court directed both parties to file their supplemental
pleadings. The OSG filed a Manifestation[11] stating that it had no intention of filing a
supplemental pleading as it had already extensively discussed all the issues in its Brief for the
Appellee.[12] On November 8, 2011, accused-appellant filed his Supplemental Brief[13] basically
containing the same arguments found in his Accused-Appellant's Brief[14] and
Memorandum[15] filed with the RTC.

Accused-appellant pointed out that only two out of the five prosecution witnesses, Zaldivar and
Ruales, were able to testify and identify accused-appellant as Paceño's killer. Yet, the RTC
included Quiban who, just like Deloso, admitted that he could not recall the killer's face.
Monterde had no personal knowledge of the shooting since she was not on the multicab when the
shooting happened.

Accused-appellant likewise questioned his out-of-court identification by Zaldivar and

Ruales. First, Zaldivar and Ruales did not have sufficient time to familiarize themselves with the
faces of their co-passengers, especially that of accused-appellant who was a stranger to
them. Second, Zaldivar and Ruales were unmindful of the other passengers as Zaldivar was
looking outside the multicab, lost in thought, while Ruales was taking a nap and was only roused
by the shooting incident. Third, the descriptions of the killer given by Zaldivar and Ruales were
inconsistent, proving that they were unsure of the killer's physical appearance. Accused-appellant
alleged that while he was under investigation at the NBI office, Atty. Cembrano temporarily
went out of the room to answer the call of nature when he passed by several witnesses looking at
accused-appellant through a one-way mirror. Atty. Cembrano overheard two of the witnesses
talking: one was having doubts as to accused-appellant's identity while the other one was
convincing the former that accused-appellant was the killer. Accused-appellant deduced that the
said witnesses who Atty. Cembrano saw were Zaldivar and Ruales, and one of them was unsure
of the killer's identity and was merely influenced by her co-witness. In addition, allowing the
witnesses to simultaneously view accused-appellant through the one-way mirror gave the
witnesses the opportunity to persuade/influence one another to point to accused-appellant as the
killer. Fourth, the time between the commission of the crime and the identification of accused-
appellant as the killer was suspiciously brief. Accused-appellant immediately became the prime
suspect even before the witnesses could identify him from a photo montage and despite lack of
any motive on his part to kill Paceño. And fifth, Zaldivar and Ruales were "coached or unduly
guided by somebody to commit a mistake during the identification proceedings," revealing a plot
to pin the crime on accused-appellant.

Accused-appellant maintained that he was in Sibagat, Agusan del Sur when Paceño was killed in
Butuan City, a fact corroborated by the defense witnesses. Accused-appellant further averred that
a murderer would have fled or gone into hiding, but he chose to clear his name and face
prosecution, proving that he is innocent of the crime being imputed against him.

We are not persuaded.

Accused-appellant essentially challenges the weight and credence accorded by the RTC, and
later affirmed by the Court of Appeals, to the evidence of the prosecution, especially the
testimonies of the witnesses who identified him as Paceño's killer.

In People v. Lolos,[16] the Court pronounced that:

Prevailing jurisprudence uniformly holds that findings of fact of the trial court, particularly when
affirmed by the Court of Appeals, are binding upon this Court. As a general rule, on the question
whether to believe the version of the prosecution or that of the defense, the trial court's choice is
generally viewed as correct and entitled to the highest respect because it is more competent to
conclude so, having had the opportunity to observe the witnesses' demeanor and deportment on
the witness stand as they gave their testimonies. The trial court is, thus, in the best position to
weigh conflicting testimonies and to discern if the witnesses were telling the truth.

Both the trial and appellate courts were convinced that the evidence for the prosecution
established accused-appellant's guilt beyond reasonable doubt. We see no cogent reason to
disturb such finding.

The crime of murder is described and penalized under Article 248 of the Revised Penal Code
thus:

Art. 248. Murder. - Any person who, not falling within the provisions of Article 246, shall kill
another, shall be guilty of murder and shall be punished by reclusion perpetua, to death if
committed with any of the following attendant circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or
employing means to weaken the defense, or of means or persons to insure or afford impunity[.]
(Emphasis supplied.)

The essential elements of murder are the following: (a) that a person was killed; (b) that the
accused killed him; (c) that the killing was attended by any of the qualifying circumstances
mentioned in Article 248; and (d) that the killing is not parricide or infanticide.[17] All elements
are extant herein.

That Paceño died after being shot twice on board a multicab on April 7, 2006 is undisputed. His
Certificate of Death[18] is part of the records of the case.

Both Zaldivar and Ruales positively identified accused-appellant as Paceño's killer. Relevant
portions of Zaldivar's testimony are reproduced below:

Q: And you made mentioned (sic) that after Pros. Paceño stepped on board a multicab, another
passenger hurried in going on board also you made mention of that?
A: Yes, sir.

Q: And when he managed to on board (sic) that vehicle, where did he position himself inside?

A: He sat in front of Fiscal Paceño.

xxxx

Q: When your vehicle reached Dumalagan because you said it was going to Nasipit, what
happened if any?

A: [Accused-appellant] shot Pros. Paceño.

Q: How many times?

A: Two (2) times.

xxxx

Q: What was the position of [accused-appellant] now when you said he changed seat in relation
to Pros. Paceño?

A: [Accused-appellant] seated in front of Pros. Paceño.

Q: How about you, where were you positioned inside the multicab?

A: I was also seated in front of [accused-appellant], sir.

Q: Now, if this person whom you said that (sic) Pros. Paceño two times in the afternoon of
April 7, 2006 while the vehicle you were on board on was in Dumalagan. If this person is
present in the courtroom today, would you be able to point him?

A: Yes, sir.
Q: Please point at him?

A: (the witness did so).

Witness was pointing to a person seated on the first bench o[f] the courtroom wearing a
yellow t-shirt and the person has a towel and when as to (sic) his name, he answered that he
is Bonifacio Dandanon.

Q: Are you sure that the man you pointed out is the one who shot Pros. Paceño two times?

A: Yes, sir.[19]

As for Ruales, she testified:

Q: When this public utility vehicle was in front of the GSIS building, where was your position
inside that vehicle as passenger?

A: Left side of the vehicle.

How about the man you identified as Fiscal Paceño, where did he position himself as
Q:
passenger inside that same vehicle?

A: Also on the right side, sir.

How about the other person whom you said came on board the vehicle just a few meters
Q:
from where Fiscal Paceño came on board?

A: He was seated beside me on the left side of the vehicle, sir.

Q: What else did you notice of this passenger whom you said just seated beside you?

A: I observed him to be feeling uneasy and he was also always coughing that time.

Q: What happened when this public utility vehicle reached Dumalagan, Butuan City?

A: The person who sat beside me shot Fiscal Paceño.

Q: What part of the body of Fiscal Paceño did that person shoot?

A: He was shot on his face, sir.

Q: How many times?

A: Twice.

Q: If this person whom you said shot Fiscal Paceño twice on the head while inside a moving
public utility vehicle is in court today, can you point at him?

A: Yes, sir.

Q: Please do.

A: (Make it of record that the witness is pointing to a person seated on the second row of the
spectator's bench when asked of his name, answered that he is Bonifacio Dandanon).

Q: If you can remember, Miss Witness, can you tell the Honorable Court the color of clothes of
the person who shot Fiscal Paceño?

A: Yes, he was wearing orange T-shirt at that time.[20]

As to the admissibility of-the out-of-court identification of accused-appellant made by Zaldivar

and Ruales, we apply the totality-of-circumstances test, discussed in People v. Rivera[21] as
follows:

We explained the procedure for out-of-court identification and the test to determine the
admissibility of such identification in People v. Teehankee, Jr., viz.:

Out-of-court identification is conducted by the police in various ways. It is done thru show-
ups where the suspect alone is brought face to face with the witness for identification. It is done
thru mug shots where photographs are shown to the witness to identify the suspect. It is also done
thru line-ups where a witness identifies the suspect from a group of persons lined up for the
purpose. . . In resolving the admissibility of and relying on out-of-court identification of
suspects, courts have adopted the totality of circumstances test where they consider the following
factors, viz.: (1) the witness' opportunity to view the criminal at the time of the crime; (2) the
witness' degree of attention at that time; (3) the accuracy of any prior description given by the
witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length
of time between the crime and the identification; and, (6) the suggestiveness of the identification
procedure. (Citation omitted.)

Based on the totality-of-circumstances test, the out-of-court identification of accused-appellant

by Zaldivar and Ruales was properly admitted and considered by the trial court as evidence. The
shooting incident happened at 4:00 in the afternoon of April 7, 2006 when it would have been
still bright enough for Zaldivar and Ruales to clearly see their surroundings. Zaldivar was sitting
across accused-appellant while Ruales was sitting right beside accused-appellant, and within the
close confines of the multicab, both witnesses had the opportunity to have a good look at
accused-appellant's face. The minor inconsistencies in the description of the killer, i.e., his
complexion, physique, and other physical attributes, given by Zaldivar and Ruales bolster, rather
than destroy, said witnesses' credibility, and further negate accused-appellant's claim that the
witnesses were rehearsed, coached, or guided. Moreover, accused-appellant failed to present
credible evidence that the out-of-court identification process was manipulated by the police or
that the police improperly suggested to the witnesses that accused-appellant was the person they
suspected responsible for Paceño's killing.

Even granting for the sake of argument that there were irregularities in the out-of-court
identification of accused-appellant by Zaldivar and Ruales, these were rendered moot by the
subsequent identification of accused-appellant by the same witnesses in open court. Relevant
herein is our ruling in People v. Rivera[22]:

Even assuming arguendo that the appellant Alfonso Rivera's out-of-court identification was
tainted with irregularity, his subsequent identification in court cured any flaw that may have
attended it. Without hesitation, the two prosecution witnesses, Renato Losaria and Juanito
Baylon identified the appellant as one of the assailants. In People v. Timon, the accused were
identified through a show-up. The accused assailed the process of identification because no other
suspect was presented in a police line-up; We ruled that a police line-up is not essential in
identification and upheld the identification of the accused through a show-up. We also held that
even assuming arguendo that the out-of-court identification was defective, the defect was cured
by the subsequent positive identification in court for the "inadmissibility of a police line-up
identification x x x should not necessarily foreclose the admissibility of an independent in-court
identification." (Citations omitted.)

Still, accused-appellant attempts to capitalize on an error purportedly committed by the RTC in

its Judgment dated February 28, 2008 in including Quiban, the driver, as among the witnesses
who identified accused-appellant as Paceño's killer. The RTC stated in its Judgment that:

Prosecution witnesses Joanne Ruales, Gretchen Zaldivar and Arturo Quiban positively identified
herein accused as the assailant of the victim, Prosecutor Pacefio, pertinent questions and answers
of said witnesses Joanne Ruales and Gretchen Zaldivar during the trial hereunder quoted[.][23]
Accused-appellant asserts that Quiban was not able to positively identify him as Quiban could
not remember the face of Paceño's killer.

That the RTC considered Quiban as a material witness in the identification of accused-appellant
as Paceño's killer was not without basis. As Quiban narrated during his direct examination:

Q: My question awhile ago, whether there were some other passengers other than Fiscal
Pacefio who also step[ped] on board your vehicle in front of the GSIS?

A: Yes, sir.

Q: Can you describe this person, can you perhaps describe also his clothing, Mr. Witness?

A: He was wearing an orange T-shirt and maong pants, medium to large built. I cannot
remember his face, only his built.

xxxx

Q: You said that you heard two gun shoots (sic) and you said you saw Fiscal Pacefio, one of
your passengers on the afternoon of that day fell down, how about the other passenger
whom you said [was] wearing orange T-shirt and wearing maong pants, what can you say
about it since he was also one of your passengers just as Fiscal Pacefio was your passenger?

A: I saw the person wearing orange T-shirt and maong pants step down from my vehicle and he
was the only one who wore orange T-shirt and maong pants.

Q: Where did he go after the shooting, the two gun shoots (sic) that you heard?

A: He step[ped] down in Dumalagan and heeded (sic) for Butuan City.[24]

Quiban's testimony corroborated material portions in Ruales's testimony, particularly, that a

person wearing an orange shirt and maong pants boarded the multicab somewhere in front of the
GSIS Building, that such person was still in the multicab at the time of the shooting, and that said
person immediately alighted from the multicab after one of the passengers was shot. We bear in
mind that Ruales testified that accused-appellant was wearing an orange shirt and maong pants
when he shot Pacefio inside the multicab on April 7, 2006. Assuming that the RTC did err in
including Quiban among the witnesses who were able to identify accused-appellant as Pacefio's
killer, it would be too trivial to warrant a reversal of the judgment of conviction rendered by both
the RTC and the Court of Appeals against accused-appellant. Even if we were to disregard
Quiban's testimony, there would still remain the testimonies of Zaldivar and Ruales which
categorically identified accused-appellant as Pacefio's killer and were quoted by the RTC in its
Decision.

Monterde's testimony is also relevant as corroborating evidence. Monterde attested before the
trial court that on April 7, 2006 around 3:00 in the afternoon, accused-appellant, wearing an
orange t-shirt and black pants, and his two companions ordered batchoy and later purchased
cigarettes at the restaurant in Butuan City where she worked.[25]These matters are definitely
within Monterde's personal knowledge, and substantiate the testimonies of other prosecution
witnesses that accused-appellant was in Butuan City in the afternoon of April 7, 2006.

There was alevosia or treachery in accused-appellant's killing of Paceño. For treachery to qualify
the act of killing to murder, two elements must concur: (1) the culprit employed means, methods,
and forms of execution which tended directly and specially to insure the offender's safety from
any defensive or retaliatory act on the part of the offended party, which means that no
opportunity was given the latter to do so; and (2) that the offender consciously adopted the
particular means, method, or form of attack employed by him. The essence of treachery is a swift
and unexpected attack on the unarmed victim without the slightest provocation on the part of the
victim. Treachery is never presumed but must be proven with moral certainty like the offense
itself.[26] In the instant case, accused-appellant's treachery is evident in the following
circumstances: (a) he armed himself with a gun; (b) he consciously boarded the same multicab
with Paceño and sat across the latter; (c) Paceño was unarmed and unaware of any impending
attack against him; (d) without any provocation, accused-appellant suddenly pulled out his gun,
and aimed and shot Pacefio twice in the head, leaving the latter with no means to defend himself,
much less retaliate. The qualifying circumstance of treachery was properly alleged in the
Information.

Paceño's killing does not constitute parricide[27] or infanticide.[28]

Since the evidence for the prosecution established all the essential elements of murder, we affirm
the conviction of accused-appellant for said crime.

Accused-appellant's alibi that he was in Sibagat, Agusan del Sur, when Pacefio was killed in
Butuan City does not warrant his acquittal. For alibi to prosper, it must be proven that during the
commission of the crime, the accused was in another place and that it was physically impossible
for him to be at the locus criminis.[29]

This Court takes judicial notice[30] that the geographical distance between Sibagat, Agusan del
Sur and Butuan City is just 37 kilometers, which could be covered by transportation in
approximately 37 minutes.[31] It is worthy to note that according to the defense's own account, at
the time Pacefio was shot in Butuan City around 4:30 in the afternoon of April 7, 2006, accused-
appellant was allegedly with a relative, Ilagan, going around from 4:00 to 5:30 in the afternoon
looking for three men they meant to talk to regarding the hiring of trucks for transportation of
logs. It would not have been impossible for accused-appellant to have traveled from Sibagat to
Butuan City and back within said time period. Ilagan's testimony that accused-appellant was with
him during the entire time could not be accorded much weight and credence being accused-
appellant's relative, and in the face of the unwavering testimonies given by impartial prosecution
witnesses that accused-appellant was in Butuan City.[32]

We stress once more that the defense of alibi is a negative defense which cannot be accorded
evidentiary weight in the face of positive assertions by prosecution witnesses. This is especially
true in the present case since accused-appellant failed to establish ill motive on the part of the
prosecution witnesses to testify against him. We declared in People v. Parreno[33] that "[t]he
positive identification of the accused as the perpetrator of the crime, when categorical,
consistent, and without any ill motive on the part of the eyewitnesses testifying on the matter,
prevails over alibi and denial."

Lastly, we are not persuaded by accused-appellant's argument that he is innocent because he

chose to face prosecution and clear his name rather than go into hiding. Unlike flight of an
accused, which is competent evidence against him as having a tendency to establish his guilt,
non-flight is simply inaction, which may be due to several factors. Hence, it may not be
positively construed as an indication of innocence.[34] In People v. Diaz,[35] we explained:

As we have held in People vs. Omar, non-flight may not be construed as an indication of
innocence. There is no law or dictum holding that non-flight of an accused is conclusive proof of
innocence. In the more recent case of People vs. Delmo, the appellants therein claimed that none
of them fled despite opportunities to do so which should be credited to them as an indication of
their innocence. To this contention we held that "[w]hile it is true that we have ruled that flight is
evidence of guilt, there is no law or dictum holding that staying put is proof of innocence, for the
Court is not blind to the cunning ways of a wolf which, after a kill, may feign innocence and
choose not to flee." (Citations omitted.)

Being guilty beyond reasonable doubt of the murder of Paceño, qualified by treachery, without
any mitigating or aggravating circumstance, accused-appellant was correctly sentenced
to reclusion perpetua.

The RTC ordered accused-appellant to pay Paceño's heirs an award for loss of earning capacity.
Such an award is computed in accordance with the following formula:

Net Earning Capacity = remaining life x Gross Annual - Living Expenses

 expectancy

[2/3 (80 - age at

Income (GAI) (50% of GAI)[36]
death)]

The RTC simply fixed the living expenses for Paceño's heirs at P180,000.00, but we re-compute
strictly using the foregoing formula:

Net earning
= [2/3 (80-55)] x (P372,096.00) - [P372,096.00 x 50%]
capacity

= [2/3(25)] x (P372,096.00) - (P186,048.00)

= 16.67 x P186,048.00

= P3,101,420.16

Civil indemnity is automatically imposed upon the accused without need of proof other than the
fact of the commission of murder or homicide;[37] while moral damages is awarded for the
mental anguish suffered by the heirs of the deceased.[38] Following the latest jurisprudence,[39] we
increase the amounts awarded for civil indemnity and moral damages from P50,000.00 to
P75,000.00, while sustaining the award of exemplary damages in the amount of P30,000.00.

WHEREFORE, premises considered, the Decision dated December 20, 2010 of the Court of
Appeals, Cagayan de Oro City, in CA-G.R. CR-H.C. No. 00611-MIN is AFFIRMED with
MODIFICATIONS. Accused-appellant Bonifacio Dandanon y Iligan a.k.a. "Boning" is
found GUILTY beyond reasonable doubt of the crime of murder and is SENTENCED to suffer
the penalty of reclusion perpetua. He is further ORDERED to pay the heirs of Godofredo R.
Paceño, Jr. loss of earning capacity in the amount of P3,101,420.16; civil indemnity in the
amount of P75,000.00; moral damages in the amount of P75,000.00; and exemplary damages in
the amount of P30,000.00.

SO ORDERED.

Sereno, C. J., (Chairperson), Bersamin, Perez, and Jardeleza,* JJ., concur.

THIRD DIVISION

[ G.R. No. 209587, September 23, 2015 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JOEL "ANJOY" BUCA,

ACCUSED-APPELLANT.

DECISION
VILLARAMA, JR., J.:

On appeal is the June 17, 2013 Decision[1] of the Court of Appeals (CA) in CA-G.R. CR-HC No.
00888-MIN convicting accused-appellant Joel "Anjoy" Buca of the crime of rape.

We state the antecedents as summarized by the CA[2]:

On December 24, 2002 at around 1:00 o'clock in the afternoon AAA,[3] a seven (7) year old girl,
together with her younger siblings CCC, DDD and EEE were in their house at Taal 2, Royal
Valley, Bangkal, Davao City. Accused-appellant Joel "Anjoy" Buca (Anjoy for brevity), a
neighbor of their family, entered the house and ordered AAA's siblings to go to another room to
sleep. When Anjoy and AAA were all alone, Anjoy placed AAA on his lap, pulled down her
panties and forcibly inserted his penis into her vagina. He began to have sex with AAA. CCC,
the younger brother, who was at that time hiding below a bench, saw what was happening. CCC
came out and pulled AAA away from Anjoy. Then, Anjoy warned AAA not to tell anyone of
what he did or else he will kill her parents.

BBB, the mother of AAA[,] came home after buying food. CCC met her at the door and told her,
"Mie, Mie, si Ate (referring to AAA) gani no ky gibastos ni Anjoy". BBB pretended to ignore
the information relayed by CCC as Anjoy was still inside their house. BBB was scared that
Anjoy might notice her reaction. About ten minutes after, Anjoy left their house. AAA then
disclosed that Anjoy did the same thing to her many times already.

On the same day, AAA and her mother BBB reported the incident to the police. They also went
to a physician to have her examined. The medical examination revealed thus:

PROVISIONAL MEDICAL CERTIFICATE[4]

xxxx

ANOGENITAL EXAM

Genitalia (+) Erythema, perihymenal area

(+) Whitish and yellowish discharge

Anus Normal

CONCLUSION
 1. Genital findings are suspicious for sexual abuse

On January 7, 2003, BBB executed an Affidavit-Complaint. Three (3) Informations were filed
against accused-appellant Anjoy. The accusatory portions of the three (3) Informations state:

In Criminal Case No. 52,260-2003:

"That sometime in the months prior to December 2002, in the City of Davao, Philippines, and
within the jurisdiction of this Honorable Court, the above-mentioned [accused], by means of
force and intimidation, did then and there willfully, unlawfully and feloniously, had carnal
knowledge of the child AAA, seven (7) years old, by forcibly inserting his penis into her vagina.

CONTRARY TO LAW";

In Criminal Case No. 52,261-2003

"The undersigned accuses the above-named accused of the crime of Rape under Article 266-A of
the Revised Penal Code as Amended by R.A. 8353, committed as follows:

That sometime before December 24, 2002, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-mentioned accused, by means of force and
intimidation, did there and then willfully, unlawfully and feloniously, had carnal knowledge of
the child AAA, seven (7) years old, by forcibly inserting his penis into her vagina.

CONTRARY TO LAW"; and

In Criminal Case No. 52, 262-2003

"That sometime in the months after December 25, 2002, in the City of Davao, Philippines, and
within the jurisdiction of this Honorable Court, the above-mentioned accused, by means of force
and intimidation, did there and then willfully, unlawfully and feloniously, had carnal knowledge
of the child AAA, seven (7) years old, by forcibly inserting his penis into her vagina.

CONTRARY TO LAW."

On August 24, 2004, accused-appellant was arraigned and entered his pleas of not guilty.
Thereafter, trial ensued.

As regards Criminal Case No. 52,260-2003, the trial court dismissed it during the trial on May
28, 2007 after Prosecutor Dayanghirang manifested that the prosecution will not present
evidence because "during his interview with the witness, she could not recall the dates x x x it
was between 2001 and 2002 but she could not recall, so [the prosecution] will not anymore
present"[5].

During his examination, accused-appellant vehemently denied the accusations against him. He
insisted that on December 24, 2002 at about 5:45 in the morning, he passed by AAA's house.
AAA called him as Uncle Joel and requested that he look after her younger brother who was
crying. When asked where their mother was, AAA answered that she left to buy food. When he
was about to leave, AAA called him again because her younger sibling was crying and she
requested if he could watch over them. Accused-appellant declined as he was about to go to his
work. He further testified that there was no unusual incident that happened on the day of
December 24, 2002. Furthermore, he insisted that he has no knowledge whatsoever of the other
accusations of AAA and BBB against him.

In a Judgment[6] dated November 11, 2010, the [Regional Trial Court (RTC)] found accused-
appellant guilty of the crime charged in Criminal Case No. 52,261-2003, the dispositive portion
of which provides:

WHEREFORE, for failure of the prosecution to present evidence in Criminal Case No. 52,260-
2003, the said Criminal Case is hereby ordered DISMISSED.

As to Criminal Case [N]o. 52,262-2003, for failure of the prosecution to prove the guilt of the
Accused beyond reasonable doubt, the said case is hereby ordered DISMISSED and the
ACCUSED is hereby ACQUITTED of the crime charged in the Information.

As to Criminal Case [N]o. 52,261-2003, the Court finds Accused guilty beyond reasonable doubt
of the crime of rape defined and penalized under Article 266-A and 266-B of the Revised Penal
Code and hereby sentences the said Accused to suffer the penalty of RECLUSION PERPETUA
and to pay AAA, the sum of SEVENTY-FIVE THOUSAND (P75,000.00) PESOS, as civil
indemnity and FIFTY THOUSAND (P50,000.00) PESOS as moral damages.

Under Article 29 of the Revised Penal Code, the Accused, who is detained, is hereby entitled to
full credit of his preventive imprisonment if he agreed voluntarily in writing to abide by the rules
and regulation[s] imposed upon convicted prisoners. If he did not agree, he shall be entitled to
4/5 of his preventive imprisonment.
SO ORDERED.

Accused-appellant appealed. The CA affirmed the RTC ruling and agreed that the testimony of
AAA was sufficient to establish the crime. The fallo of the appealed CA Decision reads:

WHEREFORE, the Judgment dated November 11, 2010 of the RTC, Branch 12, Davao City is
hereby AFFIRMEDwith MODIFICATION. Accused-appellant Joel "Anjoy" Buca is hereby
found GUILTY beyond reasonable doubt of the crime of rape and is sentenced to suffer the
penalty of reclusion perpetua, without the benefit of parole.

Accused-appellant is ORDERED to pay AAA the amount of P75,000.00 as civil indemnity,

P75,000.00 as moral damages, and P30,000.00 as exemplary damages and interest on all
damages at the rate of six percent (6%) per annum from the finality of judgment until fully paid.

SO ORDERED.[7]

Hence, this appeal.

The issues for our consideration are:

Whether or not accused-appellant is guilty of rape; and

Whether accused-appellant may be convicted of rape despite the failure to allege the exact date
of the commission of the crime in the Information.

We affirm the conviction of accused-appellant.

Accused-appellant is guilty of rape.

Accused-appellant contends that his guilt was not proved as the credibility of AAA and CCC,
whose testimonies were utilized to establish the elements of rape, is in serious doubt due to their
lack of candor and forthrightness in testifying. Accused-appellant further points out that there are
inconsistencies in the narrations of the prosecution's witnesses that cast doubt on their
statements.

We do not agree.

Article 266-A, paragraph (1) of the Revised Penal Code, as amended, defines the crime of rape:
ART. 266-A. Rape, When and How Committed. - Rape is committed -

1. By a man who shall have carnal knowledge of a woman under any of the following
circumstances:

a. Through force, threat, or intimidation;

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

c. By means of fraudulent machination or grave abuse of authority; and

d. When the offended party is under twelve (12) years of age or is demented, even though none
of the circumstances mentioned above be present.

In the case at bar, the lower courts found that the element of carnal knowledge was established
by the testimony of the victim, AAA, to wit:

PROS. DAYANGHIRANG III:

This time we go to Crim. Case No. 52,261-03

Q: On December 24, 2002, at around one o'clock in the afternoon, where were you at that
time, Miss Witness, if you can recall?

[AAA]

A: In our house.

Q: Who were with you in your house, at that time?

A: My siblings and younger brothers.

Q: You are referring to your younger brothers named what?

A: [CCC, DDD and EEE.]

Q: Aside from you, the three other siblings, who else were there and in your house at that
time?

A: No more... Anjoy.

Q: You mean, the accused was also in your house at that time?

A: Yes.
COURT:

Q: Do you know why he was in your house?

A: I don't know.

xxxx

Q: According to you, you and your three siblings were there in your house at that time
together with the accused, and your mother left to buy viand. Tell us, what happened?

A: He again cuddled me and put me on his lap and pulled down my panty.

Q: Who at that time again cuddled you? Where were your other siblings?

A: He ordered my other siblings to go inside the room and put them to sleep.

xxxx

Q: Now, according to you, the accused pulled down your panty and cuddled you. What
did he do next?

A: He inserted his penis on (sic) my vagina.

Q: What did he do next after he inserted his penis on (sic) your vagina?

A: He was pumping again.

Q: What did you feel?

A: Pain.

Q: What part of your body was painful?

A: My vagina.

Q: That incident of sexual abuse and molestation happened in what part of the house?

A: Near, at the door.

Q: What happened next?

A: One of my brothers saw it and he pulled me.[8]

We find the testimony of AAA sufficient to establish the element of carnal knowledge. We note
that the RTC described the testimony of AAA as positive, credible, natural and
convincing.[9] The Court has held time and again that testimonies of rape victims who are young
and immature deserve full credence, considering that no young woman, especially of tender age,
would concoct a story of defloration, allow an examination of her private parts, and thereafter
pervert herself by being subject to a public trial, if she was not motivated solely by the desire to
obtain justice for the wrong committed against her. Youth and immaturity are generally badges
of truth. It is highly improbable that a girl of tender years, one not yet exposed to the ways of the
world, would impute to any man a crime so serious as rape if what she claims is not true.[10]

Further, it is doctrinally settled that factual findings of the trial court, especially on the credibility
of the rape victim, are accorded great weight and respect and will not be disturbed on
appeal.[11] The Court observes restraint in interfering with the trial court's assessment of the
witnesses' credibility, absent any indication or showing that the trial court overlooked some
material facts or gravely abused its discretion, more so, when the CA sustained such assessment,
as in this case, where it affirmed the trial court's findings of fact, the veracity of the testimonies
of the witnesses, the determination of physical evidence and conclusions.[12]

Furthermore, the narration of AAA is even more convincing as her testimony coincided with that
of CCC, who witnessed the crime.[13] We note that the RTC also observed CCC's testimony to be
positive, credible, natural and convincing.[14]

As to the alleged inconsistency in the testimony of AAA and that of her brother CCC, accused-
appellant points out that AAA testified that her brother pulled her away from accused-appellant
while CCC narrated that she was released by accused-appellant. In People v. Laog,[15] the Court
clarified that minor inconsistencies are not enough to sustain the acquittal of an accused, to wit:

xxx Nonetheless, this matter raised by appellant is a minor detail which had nothing to do with
the elements of the crime of rape. Discrepancies referring only to minor details and collateral
matters - not to the central fact of the crime - do not affect the veracity or detract from the
essential credibility of witnesses' declarations, as long as these are coherent and intrinsically
believable on the whole. For a discrepancy or inconsistency in the testimony of a witness to
serve as a basis for acquittal, it must establish beyond doubt the innocence of the appellant for
the crime charged. It cannot be overemphasized that the credibility of a rape victim is not
diminished, let alone impaired, by minor inconsistencies in her testimony. (Emphasis supplied)

The minor inconsistency in this case is how AAA was released by accused-appellant which is
not an element of rape. Such fact not being an element of the crime will not put to doubt the
prosecution witnesses' testimony establishing the crime.

As to the element that the victim is under 12 years of age, the presentation of her birth
certificate[16] confirming that she was indeed seven years old at the time the crime was
committed on December 24, 2002 sufficiently established the second element of rape in this
case.

In sum, we agree with the RTC and CA that the elements of rape were duly established.

The conviction of accused-appellant

based on the Information stating that the
crime was committed sometime before
December 24, 2002, despite the fact that
the crime was committed on
December 24, 2002, is valid.

Accused-appellant argues that the statement in the Information[17] that the rape occurred
sometime before December 24, 2002 despite the fact that the prosecution established that the
crime was committed on December 24, 2002 violates Section 11,[18] Rule 110 of the Revised
Rules of Criminal Procedure, as amended, on the requirement of stating the date of the
commission of the offense and the right of the accused to be informed of the nature and cause of
the accusation against him.

We do not agree.

The Court has already addressed this issue in People v. Lizada,[19] to

wit:

The Court does not agree with accused-appellant. It bears stressing that the precise date of the
commission of the crime of rape is not an essential element of the crime. Failure to specify the
exact date when the rape was committed does not render the Information defective. The reason
for this is that the gravamen of the crime of rape is carnal knowledge of the private complainant
under any of the circumstances enumerated under Article 335 of the Revised Penal Code, as
amended, x x x Moreover, in People vs. Salalima,[20] this Court held that:

Failure to specify the exact dates or time when the rapes occurred does not ipso facto make the
information defective on its face. The reason is obvious. The precise date or time when the
victim was raped is not an element of the offense. The gravamen of the crime is the fact of carnal
knowledge under any of the circumstances enumerated under Article 335 of the Revised Penal
Code. As long as it is alleged that the offense was committed at any time as near to the actual
date when the offense was committed an information is sufficient. In previous cases, we ruled
that allegations that rapes were committed "before and until October 15, 1994," "sometime in the
year 1991 and the days thereafter," "sometime in November 1995 and some occasions prior
and/or subsequent thereto" and "on or about and sometime in the year 1988" constitute
sufficient compliance with Section 11, Rule 110 of the Revised Rules on Criminal
Procedure. (Emphasis supplied)

Notably, Section 11, Rule 110 of the Revised Rules of Criminal Procedure, as amended, states
that it is not necessary to state in the complaint or information the precise date the offense was
committed except when it is a material ingredient of the offense. Such requirement is not
applicable to the crime of rape where the date of the commission of the offense is not an essential
element. Also, said Section 11 expressly permits that a crime may be alleged to have been
committed on a date as near as possible to the actual date of its commission. The information
charging accused-appellant of rape sometime before December 24, 2002 when the crime was
committed exactly on December 24, 2002 is sufficiently compliant with said Section 11. In
addition, as correctly pointed out by the CA, the Information is valid as under Section 6, Rule
110 of the 2000 Revised Rules of Criminal Procedure, an information is deemed sufficient if it
states the name of the accused; the designation of the offense given by the statute; the acts or
omissions complained of as constituting the offense; the name of the offended party; the
approximate date of the commission of the offense; and the place where the offense was
committed.[21]

The Court has also discussed the essence of the right of the accused to be informed of the nature
and cause of accusation against him in Andaya v. People,[22] to wit:

It is fundamental that every element constituting the offense must be alleged in the
information. The main purpose of requiring the various elements of a crime to be set out in the
information is to enable the accused to suitably prepare his defense because he is presumed to
have no independent knowledge of the facts that constitute the offense,
x x x (Emphasis supplied)

It is evident in this case that accused-appellant was able to testify about the incident on
December 24, 2002[23]because the date alleged was not vague or covering an unreasonable period
as to deprive him the opportunity to prepare his defense which is the essence of the right
allegedly violated. It is worthy to note that the records are bereft of any objection by the accused-
appellant about the date of the commission of the crime at the time of arraignment,[24] during the
formal offer of exhibits[25] and at the time the prosecution put AAA on the witness stand[26] to
establish the rape committed on December 24, 2002. In People v. Gianan,[27] the Court held that
an accused-appellant's failure to raise a timely objection that the time difference alleged in the
information covered a broad period constitutes a waiver of his right to object. We further observe
that accused-appellant did not even disavow knowledge of the incident on that date but, in fact,
admitted that he spoke with AAA at their house on December 24, 2002[28] and even entered
AAA's house.[29] The testimony of accused-appellant leads us to conclude that the allegation was
sufficient to inform him of the date the crime charged occurred which enabled him to prepare his
defense. Thus, we find the allegations in the Information and the subsequent conviction of
accused-appellant by the lower courts valid and lawful under the circumstances.

Proper use of the phrase "without

eligibility for parole" in indivisible
penalties.

The CA, in the dispositive portion of its Decision, sentenced accused-appellant to suffer the
penalty of reclusion perpetua, without the benefit of parole.[30] A.M. No. 15-08-02-SC31 is
instructive on the matter of using the phrase without eligibility for parole to qualify indivisible
penalties, to wit:

II.

In these lights, the following guidelines shall be observed in the imposition of penalties and in
the use of the phrase "without eligibility for parole":

II.

(1) In cases where the death penalty is not warranted, there is no need to use the phrase "without
eligibility for parole" to qualify the penalty of reclusion perpetua; it is understood that convicted
persons penalized with an indivisible penalty are not eligible for parole; and

(2) When circumstances are present warranting the imposition of the death penalty, but this
penalty is not imposed because of R.A. 9346, the qualification of "without eligibility for
parole" shall be used to qualify reclusion perpetua in order to emphasize that the accused should
have been sentenced to suffer the death penalty had it not been for R.A. No. 9346.

In the instant case, since the accused-appellant committed simple rape, a crime penalized
by reclusion perpetuaonly, the dispositive portion of this decision should plainly state that he is
sentenced to suffer the penalty of reclusion perpetua without any qualification.

WHEREFORE, in light of all the foregoing, the appeal is hereby DISMISSED. The Decision
dated June 17, 2013 of the Court of Appeals in CA-G.R. CR-HC No. 00888-MIN
is AFFIRMED with a clarification that the accused-appellant is sentenced to suffer the penalty
of reclusion perpetua.

Costs against accused-appellant.

SO ORDERED.
Velasco, Jr., (Chairperson), Peralta, Perez,* and Jardeleza, JJ., concur.

FIRST DIVISION

[ G.R. No. 205379, September 23, 2015 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. HENRY CALADCADAN,

ACCUSED-APPELLANT.

DECISION

PEREZ, J.:

Before us is the Decision[1] of the Court of Appeals in CA-G.R. CR-HC No. 04533 dated 25 May
2012 which affirmed the Decision[2] of the Regional Trial Court (RTC) of Lagawe, Ifugao,
Branch 14, in Criminal Cases No. 1146-A and No. 1146-B, finding accused-appellant Henry
Caladcadan guilty beyond reasonable doubt of the crime of qualified rape.

Accused-appellant was charged with two counts of rape in two Informations which read:

Criminal Case No. 1146-A

That on or about the evening of June 21, 1999, at Tinoc, Ifugao Province[,] and within the
jurisdiction of this Honorable Court, the above-named accused, the father of herein victim, did
then and there, willfully, unlawfully and feloniously by means offeree and intimidation, have
carnal knowledge of his own daughter [AAA],[3] a minor[,] 16 years of age, against her will and
consent.[4]

Criminal Case No. 1146-B

That on or about the evening of June 23, 1999, at Tinoc, Ifugao Province[,] and within the
jurisdiction of this Honorable Court, the above-named accused, the father of herein victim, did
then and there, willfully, unlawfully and feloniously by means of force and intimidation, have
carnal knowledge of his own daughter [AAA], a minor[,] 16 years of age, against her will and
consent.[5]

Upon filing his counter-affidavit in December 1999, accused-appellant disappeared. The case
was archived until he was arrested on 20 March 2009. On arraignment, accused-appellant
entered a "not guilty" plea to the offense charged. During the pre-trial, accused-appellant
admitted that AAA is his daughter. The case went through a full trial.

The prosecution presented AAA, her mother BBB, and psychologist Claire Baliaga (Baliaga) as
an expert witness who testified on the following facts:

AAA, then 16 years old, lived in a two-storey house with her parents and two siblings. On the
night of 21 June 1999, she was sleeping in one of the two rooms on the second floor when
accused-appellant suddenly entered her room and forcibly removed her pants and her underwear.
AAA tried to resist but accused-appellant was too strong. Accused-appellant managed to insert
his penis into AAA's vagina while covering her mouth to prevent her from shouting. Two days
later, AAA was sleeping in her parents' bedroom when accused-appellant again crept into bed
with her and mounted her. On both occasions, AAA's siblings were sleeping in the other room,
while BBB was in Baguio City. AAA did not tell her mother what had happened because
accused-appellant had threatened to burn the house.[6]

Sometime in October 1999, BBB observed something unusual in AAA's body. She asked AAA
to lie down in bed while she examined the latter's stomach. BBB realized that AAA was
pregnant. She immediately asked AAA who got her impregnated and the latter answered that it
was accused-appellant, her father. BBB then went to the Department of Social Welfare and
Development (DSWD) office-to ask for help. The DSWD referred her to the National Bureau of
Investigation (NBI). The NBI took AAA's statement. She was also examined by a medico-legal
officer from the NBI. AAA gave birth on 27 March 2000.[7]

Baliaga testified that she conducted a mental evaluation on AAA, and tests revealed that AAA
was suffering from mild retardation and could not give intelligent consent to the act complained
about.[8]

Accused-appellant denied that he raped AAA. In his defense, accused-appellant testified that on
the date when the first rape took place, he was in their house sleeping; and on the date of the
second rape incident, he was in the boarding house of a certain Ricardo Mayomes.[9] During the
cross-examination, accused-appellant stated that AAA had a boyfriend, Accused-appellant
explained that he disappeared for nine years because he was trying to save money so he could
hire his own counsel.[10]

On 5 May 2010, accused-appellant was found guilty beyond reasonable doubt of qualified rape.
The dispositive portion of the decision reads:

WHEREFORE, premises considered, the [c]ourt finds accused guilty beyond reasonable doubt
of the crime of qualified rape and hereby imposes the penalty of reclusion perpetua without the
benefit of xxx parole. The [c]ourt further orders accused to pay the sum of Seventy Five
Thousand (Php75,000.00) Pesos as indemnity, another Seventy Five Thousand (Php75,000.00)
Pesos as moral damages and exemplary damages in the amount of Thirty Thousand
(Php30,000.00) Pesos. He is further ordered to recognize the child begotten as a result of the
crime of rape named CCC as his illegitimate child and to give support to the child.[11]
Accused-appellant filed a Notice of Appeal on 25 June 2010.[12]

On 25 May 2012, the Court of Appeals rendered the assailed decision affirming with
modification the trial court's decision, the dispositive portion of which reads:

WHEREFORE, the Appeal is hereby DENIED. The Decision of conviction dated 5 May 2010 of
the Regional Trial Court, Second Judicial Region, Lagawe, Ifugao, Branch 14, in Criminal Case
Nos. 1146-A and 1146-B, is AFFIRMED with MODIFICATION in that accused-appellant
Hehry Caladcadan is sentenced to suffer the penalty of reclusion perpetua without eligibility for
parole, and to pay P75,000 as civil indemnity, P75,000 as moral damages, and P30,000 as
exemplary damages, for two counts of rape.[13]

Accused-appellant filed the instant appeal. In a Resolution[14] dated 1 April 2013, accused-
appellant and the Office of the Solicitor General (OSG) were required to; file their respective
supplemental briefs if they so desired. Both parties manifested that they were adopting their
respective briefs filed before the appellate court.[15]

In his Brief, accused-appellant maintains that AAA's testimony is incredible. First accused-
appellant reveals that AAA had a boyfriend who could have impregnated her. Second, accused-
appellant claims that at the time of the supposed rape, two of his children were sleeping with him
so it was impossible for him to have raped his daughter in the presence of his two other children
who could have witnessed it. Third, accused-appellant argues that he was not in his house when
the second rape incident allegedly took place. Fourth, accused-appellant avers that he spent the
night of 23 June 1999 at a friend's boarding house.

On the other hand, the OSG vouches for the credibility of AAA, relying on the adage that a
daughter would not concoct a story of rape against her father, taking to mind the reverence and
respect for elders that is too deeply ingrained in Filipino children. Furthermore, the OSG believes
that AAA's positive and categorical assertions prevail over accused-appellant's bare denials.

The basic issue is whether or not accused-appellant is guilty for two counts-of rape beyond
reasonable doubt.

The applicable provisions related to the crime of rape are Articles 266-A and 266-B of the
Revised Penal Code (RPC), which provide:

Article 266-A. Rape; When and How Committed. - Rape is committed -

1) By a man who shall have carnal knowledge of a woman under any of the following
circumstances:

a) Through force, threat or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is demented, even though none
of the circumstances mentioned above be present.

xxxx

Article 266-B. Penalties. - Rape under paragraph 1 of the next preceding article shall be punished
by reclusion perpetua.

xxxx

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

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

Rape is qualified when the following elements of the offense charged are present:

(a) the victim is a female over 12 years but under 18 years of age;

(b) the offender is a parent, [an] ascendant, [a] step-parent, [a] guardian, [a] relative by
consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of
the victim; and

(c) the offender has carnal knowledge of the victim either through force, threat or intimidation;
or when [the victim] is deprived of reason or is otherwise unconscious; or by means of fraudulent
machinations or grave abuse of authority.[16]

The RTC and the Court of Appeals agree on the finding that the prosecution had proven beyond
reasonable doubt all the elements of qualified rape. We agree.

We see no reason to depart from the findings of the lower courts. In upholding AAA's
credibility, the Court of Appeals observed:

Despite the passage of years, the horrendous images of the nights of abuse were immortalized in
AAA's mind. She was emphatic, frank and straightforward as she excruciatingly recalled her
ghastly experience.

xxxx
[.][17]

Indeed, AAA was straightforward and unequivocal in the recollection of her horrendous
experience:

PROS. TUMAPANG ON DIRECT-EXAMINATION:

Q: Madam Witness, could you recall where were you on June 21, 199[9]?

A: I am in our house.

Q: Where is your house located, Madam Witness?

A: At the time, it was in Tinoc, Poblacion.

Q: What were you doing at that time, Madam Witness?

A: I was sleeping in our room.

Q: And when you were sleeping, what happened, if any, Madam Witness?

A: My father entered the room and he removed my pant[s] and panty.

Q: You mentioned your father. Who is your father, Madam Witness?

A: Henry Caladcadan.

Q: If he is in court, would you please point at him if he is around?

A: (Witness pointed to a man seated on a pew for the accused and when asked his name, he
responded Henry Caladcadan.)

Q: You said he entered your room and removed your pants. What else did he remove?

A: My panty.
Q: What did you do while your father was removing your pants and panty?

A: I was fighting him but he [was] stronger than me.

xxxx

Q: What else did he do, if any? [sic]

A: He did the pumping act.

Q: While he was doing the pumping motion, Madam Witness, what else was he doing, if any?
[sic]

A: He covered my mouth with his hands.

Q: During that time while he was doing that — or you said your father raped you, were there
other people at your house during that time?

A: My siblings who are 9 and 11 years old were in the house at the time.

Q: What particular part of the house where they? (sic)

A: In the other room.

Q: How about your mother, was she not present at the time?

A: She was in Baguio.

Q: You said your father was doing the pumping. After doing that, what else did he do, if any?

A: He went out of the room and he left.

Q: Was that the only time that your father did that to you?

A: There was still one incident that happened on June 23, 1999.

Q: June 23. What year was that?

A: 1999.

Q: So, that is at least 2 days after June 21, am I correct?

A: June 21 and June 23, 1999.

Q: So, on June 23, 1999, what were you doing at the time?

A: I was sleeping in the room.

Q: Was that the same room where he did the first rape? (sic)

A: It is in the other room.

Q: And what happened when you were in the room, if any? (sic)

A: He came into the room nude, (sic)

Q: After coming in, what did he do, if any, Madam Witness?

A: He covered my mouth and removed my pants.

Q: What did you do while he was removing your pants?

A: I was trying to fight him back but he was stronger than me.

Q: What did he do after removing your pants?

A: [H]e laid on top of me and inserted his penis into my vagina.

Q: After inserting his penis into your vagina, what did he do next, if any, (sic) Madam
Witness?

A: He did the pumping act.

Q: After doing that, what did he do next?

A: He went out the room and left.

Q: Were there other people during that time, Madam Witness?

A: My two (2) siblings?

Q: How about your mother?

A: She was still in [B]aguio at the time.

Q: How old were you at the time when your father raped you?

A: 16.

Q: What result, if any, happened to you after that unfaithful (sic) incident?

A: My body aching, (sic)

Q: And after some months, was there any result because of the rape?

A: Yes. There was.

Q: What was that?

A: I got pregnant and the baby is now in our house.

Q: Is he a boy or a girl?

A: A girl.

Q: How old is she now, [Mjadam Witness?

A: 9.[18]

AAA's testimony categorically establishes the fact of rape. She positively identified accused-
appellant as the perpetrator. Accused-appellant could not even come up with a plausible
explanation why AAA would fabricate a story of rape. If indeed AAA had a boyfriend at that
time, it would have been relatively easier to identify her boyfriend as the perpetrator rather than
go through the ordeal and shame of accusing her own flesh of rape.

Accused-appellant's argument that rape was impossible due to the presence of AAA's siblings is
also bereft of merit. Rape is not a respecter of place or time. "It is not necessary that the place
where the rape .is committed be isolated."[19] "There have been too many instances when rape
was committed under circumstances as indiscreet and audacious as a room full of family
members sleeping side by side."[20]

Since AAA's testimony withstood the rigors of a cross-examination, this, in itself, is sufficient to
sustain a conviction. The medico-legal report prepared by the medico-legal officer bolsters the
occurrence of rape. Moreover, BBB corroborates AAA's testimony in open court with the
following declaration:

[PROSECUTOR] TUMAPANG ON DIRECT-EXAMINATION:

Q: Madam Witness, how are you related to the private complainant [AAA]?

A: My daughter, sir.

Q: And how are you also related to the accused Henry Caladcadan?

A: He is my husband, sir.

Q: Were you legally married to the accused Henry Caladcadan?

A: Yes.
Q: Do you recall sometime in 1999 any information you received from your daughter regarding
any incident of sexual abuse committed on her?

A: That was on the month of October 1999 and it was very cold in Tinoc, she usually wears
jacket. She was washing plates and I was seating [sic] down on the table [sic] drinking my
coffee and I observed something and I told her, "Emy, why is it that there is unusual in your
body figure?" She said, "None. I do not know." And I said, "Better come. Put down what
you are doing and go up. You lay down." And then she laid down, I felt her stomach that is
very hard and then I said, "Emy, masikug ka." "You are pregnant. Who impregnated you?"
and she answered, "My father, mama."

COURT

You stop there. The prosecution will ask another question.

[PROSECUTOR] TO THE WITNESS:

Q: And after you were informed by your daughter that she was impregnated by her father, what
else did you ask?

A: I said, "When did he do that?" and she answered, "When you were out of the house."

Q: Did she tell any possible man who allegedly did this sexual abuse?

We traced it, sir[,] because that was the time when I got out from our house. That was June
21 and June 23, 1999 when I went out from our house and I went to Baguio City to visit my
other daughter studying there at UB.

Q: So, what else did you do after learning that your daughter was pregnant as a result of the
sexual assault committed by her own father?

A: Because she was there in the house at Impugong, it is there where we stayed and it was
there where they made the act. Henry is staying at another house there at Poblacion. Out of
anger, I went down to call for him and we went up. Henry sat down on another chair. Emy
 sat down on another. I told Henry, "Emy is pregnant and she told that you are the one who
impregnated her." But Henry denied and he said, "I do not know."

Q: And what else transpired after that confrontation?

A: I just kept quiet and we slept and another day has come and I waited if he will tell the truth.
I always dig [sic] out to him but then he denied. If ever I asked Emy who did that to her and
she would always point out to Henry Caladcadan and no one else.

Q: After being convinced that it was her father and your husband who sexually rubbished (sic)
his own daughter, what step did you undertake?

A: I went to the DSWD to ask for help.

Q: And what did you do after seeking the help of the DSWD?

A: I told the story and they were the ones who suggested me (sic]) to go to the NBI.

Q: What did you do with their advice that you go to the NBI for the filing of the case?

A: They got the statement of [AAA] and they advised us to go to Lamut, sir[,] with the NBI.

Q: And was your daughter examined by-a medical specialist from the NBI?

A: Yes, sir.

Q: Where?

A: Camp Dangwa, Regional Office.

Q: And was a medical report issued in connection with the NBI's examination of your
daughter?

A: Yes.[21]
BBB's act of immediately reporting the crime once she became convinced that it was accused-
appellant who raped their daughter certainly adds credibility to the account.

Under Article 266-B of the RPC, rape is punishable by death when the victim is under eighteen
(18) years of age and the offender is a parent of the victim. As a special qualifying circumstance
for raising the penalty for rape to death, the minority of the victim and her relationship to the
offender must be alleged in the criminal complaint or information, and proved conclusively and
indubitably as the crime itself.

The two Informations jointly alleged minority and relationship. As a matter of fact, accused-
appellant admitted during pre-trial that AAA is his daughter. Her birth certificate showing that
AAA was only 16 years old at the time of the rape incident was likewise offered in evidence by
the prosecution.

The death penalty cannot, however, be imposed in view of the enactment of Republic Act No.
9346. Accordingly, the penalty of reclusion perpetua without possibility of parole is hereby
meted on accused-appellant.

The award of damages should be modified pursuant to the ruling in People v. Gambao.[22] We
hold that AAA is entitled to P100,000.00 as civil indemnity, P100,000.00 as moral damages, and
P100,000.00 as exemplary damages for each count of rape. All damages awarded shall earn
interest at the rate of 6% per annum from the date of finality of this Decision until fully paid.[23]

WHEREFORE, the Decision dated 25 May 2012 of the Court of Appeals, finding Henry
Caladcadan guilty beyond reasonable doubt of two counts of qualified rape,
is AFFIRMED with MODIFICATION.

Accused-appellant shall suffer the penalty of reclusion perpetua without possibility of parole.
Accused-appellant is further ordered to indemnify AAA the amounts of P100,000.00 as civil
indemnity, P100,000.00 as moral damages and P100,000.00 as exemplary damages for each
count of rape. Moreover, the damages awarded shall earn an interest at the rate of six percent
(6%) per annum from the date of the finality of this Decision until fully paid.

SO ORDERED.

Sereno, C. J., (Chairperson), Velasco, Jr.,* Leonardo-De Castro, and Bersamin, JJ., concur.

THIRD DIVISION

[ G.R. No. 198057, September 21, 2015 ]

THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RANDY BAÑEZ Y
BAYLON AND RAMIL BAÑEZ Y BAYLON, AND FELIX RUFINO (AT LARGE), ACCUSED-
APPELLANTS.

DECISION

PERALTA, J.:

The instant case seeks to reverse and set aside the Court of Appeals (CA) Decision[1] dated April
29, 2011 in CA-G.R. CR-HC No. 00581-MIN. The CA upheld the Decision[2] of the Regional
Trial Court (RTC) of Surallah, South Cotabato, Branch 26, dated October 1, 2007 in Criminal
Case No. 2645-B, which found accused-appellants Randy Bañez y Baylon and Ramil Bañez y
Baylon guilty beyond reasonable doubt of the crime of murder.

On December 14, 1999, an Information was filed indicting the Bañez brothers and Felix Rufino
for the murder of Sevino Baylon, to wit:

That on or about the 8th day of October, 1999, at Sitio Ebenizer, Barangay Rang-ay (Bo. 4),
Municipality of Banga, Province of South Cotabato, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, with intent to kill and with evident
premeditation, abuse of superior strength and treachery, conspiring and confederating together
and mutually helping one another, did then and there willfully, unlawfully, and feloniously
attack, assault, drag to a secluded place and while thereat stab one SEVINO II BAYLON alias
"BOLOY" with the use of deadly bladed weapons, hitting and mortally wounding the latter in
different parts of his body that caused his death thereafter.[3]

Upon arraignment, the Bañez brothers pleaded not guilty to the crime charged. Rufino, however,
remains at large. Trial thus ensued.

The factual antecedents of the case are as follows:

On October 8, 1999, at 5:00 a.m., Dominador Marcelino was plowing outside his house in Sitio
Ebenizer, Barangay Rang-ay, Banga, South Cotabato, when he heard Sevino Baylon shouting, "I
have no fault!" He then saw Rufino striking Baylon with an iron bar while brothers Randy and
Ramil Bañez were holding each of the latter's arms behind his back. The accused-appellants
thereafter dragged Baylon to Ramil's house, which was merely thirty (30) meters away. Later
that day, at around 5:00 p.m., Marcelino was asked to go to the house of Kagawad Dory
Marquez regarding the incident he witnessed earlier.

The next day, or on October 9, 1999, at 7 o'clock in the morning, Kagawad Marao Olarte went to
Marcelino's house and invited him to search for Baylon, who had been reported missing.
Accompanied by the authorities, they immediately proceeded to search Ramil's house and the
area surrounding it. In the course of their search, they suddenly smelled a foul odor coming from
a pile of banana leaves, thirty (30) meters away from Ramil's house. Upon removing the leaves,
they found the missing body of Baylon lying face down, bearing several stab and hack wounds,
with both arms tied behind his back, and with a slit throat.

Dr. Ellen D. Quidilla, the medico-legal expert who conducted a postmortem examination on the
cadaver of the victim, found that the cause of his death was massive blood loss secondary to
multiple stab wounds.

For its part, the defense presented Marcelino's Affidavit of Retraction. He stated therein that he
was merely forced to testify against the accused due to threats he had received from Baylon's
family. The truth was, according to him, at the time of the incident, he was tending his carabao
far away from the scene of the crime. Likewise, Randy and Ramil Bañez both testified that they
were somewhere else at the time of the commission of the crime. Randy claimed that he was
deeply saddened when he saw his house gutted by fire, but he left after two (2) hours because he
had to go with his wife to their house at Barrio 7, which is about two (2) kilometers from the
crime scene.

On October 1, 2007, the RTC of Surallah, South Cotabato rendered a Decision convicting the
Bañezes of the crime of murder, the decretal portion of which provides:

Accordingly, premises considered, both accused RANDY BAÑEZ y BAYLON and RAMIL
BAÑEZ y BAYLON, are hereby found GUILTY beyond reasonable doubt of having committed
the crime of MURDER as defined in Article 248 of the Revised Penal Code, as amended by
Republic Act No. 7659, qualified by treachery and aggravated by abuse of superior strength. The
proper imposable penalty would have been death. However, pursuant to Republic Act No. 9346
which repealed and abolished death penalty, both accused then are sentenced each to suffer the
penalty of reclusion perpetua. It is further ORDERED that each of them pay the heirs of the
victim, Sevino Baylon alias Boloy, the amounts of P75,000.00 as civil indemnity and P50,000.00
as moral damages, all with interest at the legal rate of six percent (6%) per annum from the date
this decision is promulgated and until the said amounts shall have been fully paid.

Meantime, let a warrant, with no bail recommended, be issued anew for the arrest of the other
accused, Felix Rufino alias Pagong, so that he may also be brought before the bar of justice to
answer for the charges against him.

Costs de oficio.

SO ORDERED.[4]
Thus, the Bañezes elevated the case to the CA. On April 29, 2011, the CA affirmed the trial
court's Decision with modifications, to wit:

WHEREFORE, the Decision dated October 1, 2007 is AFFIRMED with MODIFICATIONS.

Appellants are found guilty beyond reasonable doubt of Murder qualified by treachery and
sentenced to suffer the penalty of Reclusion Perpetua. In addition, appellants are ordered to pay
the heirs of the victim the amounts of P75,000.00 as civil indemnity, P75,000.00 as moral
damages, P25,000.00 as temperate damages and P30,000.00 as exemplary damages.

Costs against appellants.

SO ORDERED.[5]

Accused-appellants now come before the Court, seeking the reversal of the ruling of the court a
quo, which found that the prosecution was able to prove their guilt beyond reasonable doubt on
the mere basis of circumstantial evidence.[6]

The appeal lacks merit.

Accused-appellants attack Marcelino's credibility, harping on the fact that the latter did not even
move, help, or run away from the crime scene, but simply chose to stay and continue plowing.
Marcelino's reaction, however, was not at all uncommon or unnatural so as to make his
testimony incredible. Placed in the same or a similar situation, some may choose to intervene,
but others, like Marcelino, would just opt to stay away and remain hidden. It is settled that there
could be no hard and fast gauge for measuring a person's reaction or behavior when confronted
with a startling, not to mention horrifying, occurrence, as in this case. Witnesses of startling
occurrences react differently depending upon their situation and state of mind, and there is no
standard form of human behavioral response when one is confronted with a strange, startling or
frightful experience. The workings of the human mind placed under emotional stress are
unpredictable, and people react differently to shocking stimulus — some may shout, some may
faint, and others may be plunged into insensibility.[7]

Further, the fact that Marcelino executed an Affidavit of Retraction should be given little weight
or scant consideration.[8] As the trial court aptly observed, in his original testimony, Marcelino
described in full and vivid details what he saw and heard in the early morning of October 8,
1999. Such a detailed testimony could not have been the subject of fabrication, especially since
the same survived the rigors of cross-examination. Besides, a mere retraction by a prosecution
witness does not necessarily vitiate the original testimony, if credible. In cases where a previous
testimony is retracted and a subsequent different, if not contrary, testimony is made by the same
witness, the test to decide which testimony to believe is one of comparison, coupled with the
application of the general rules of evidence. A testimony solemnly given in court should not be
set aside and disregarded lightly. And before this can be done, both the previous testimony and
the subsequent one should be carefully compared and juxtaposed, the circumstances under which
each was made, carefully and keenly scrutinized, and the reasons or motives for the change,
discriminatingly analyzed. The unreliable character of the affidavit of retraction executed by a
complaining witness is also shown by the incredulity of the fact that after going through the
burdensome process of reporting to and/or having the accused arrested by the law enforcers,
executing an affidavit against the accused, attending trial and testifying against the accused, said
witness would later on declare that all the foregoing was actually a farce and the truth is now
what he says it to be in his affidavit of retraction. The Court looks with disfavor upon retractions
of testimonies previously given in court. The rationale for this is simple: affidavits of retraction
can easily be secured from witnesses, usually through intimidation or for a monetary
consideration. There is always the probability that, later on, it will be repudiated. It is only when
there exist special circumstances in a given case, which, when coupled with the recantation, raise
doubts as to the truth of the previous testimony given, can retractions be considered and
upheld.[9] No such special circumstances are extant in the case at bar.

Also, the lower courts' resort to circumstantial evidence was perfectly in order. The lack or
absence of direct evidence does not necessarily mean that the guilt of the accused can no longer
be proved by any other evidence. Direct evidence is not the sole means of establishing guilt
beyond reasonable doubt, because circumstantial, indirect or presumptive evidence, if sufficient,
can replace direct evidence.[10] Said reliance on circumstantial evidence is sanctioned by Section
4, Rule 133 of the Rules of Court, which, to warrant the conviction of an accused, requires that:
(a) there is more than one (1) circumstance; (b) the facts from which the inferences are derived
have been proven; and (c) the combination of all these circumstances results in a moral certainty
that the accused, to the exclusion of all others, is the one who committed the crime.[11] Here,
there exist sufficient circumstantial evidence pointing to the Bañez brothers as among the ones
responsible for Baylon's death. The prosecution was able to establish that: (1) the house of
accused-appellant Randy Bañez was burned just a few hours before the incident; (2) Baylon
shouted, "I have no fault!" when Rufino hit him with an iron bar, while the Bañezes held his
arms; (3) the accused thereafter brought Baylon to the house of Ramil Bañez; and (4) Baylon's
lifeless body was discovered the following morning near Ramil's house. Moreover, accused-
appellants failed to show that it was physically impossible for them to have been at the scene of
the crime at the time of its commission. Denial is an intrinsically weak defense which must be
supported by strong evidence of non-culpability to merit credibility.[12] There was likewise
motive on the part of the Bañez brothers to hurt Baylon, since they had suspected him to have
been the one responsible for the burning of Randy's house. The totality of the aforementioned
facts point to them, to the exclusion of others, as the perpetrators of the crime.

Lastly, the CA correctly ordered the award of P25,000.00 as temperate damages and P30,000.00
as exemplary damages. An award of temperate damages in lieu of actual damages is warranted
because it is reasonable to presume that when death occurs, the family of the victim suffered
pecuniary loss for the wake and funeral of the victim although the exact amount was not shown.
Also, the award of exemplary damages is proper considering the attendance of treachery or
alevosia that qualified the killing to murder.[13] However, the awards of civil indemnity and
moral damages should be reduced to P50,000.00 each.[14] Further, consistent with present
jurisprudence, the legal rate of 6% per annum is imposed on all monetary awards from date of
finality of this Decision until fully paid.[15]

The CA likewise aptly held that even if the death penalty were still in effect, the imposable
penalty would still be reclusion perpetua, since abuse of superior strength can no longer be
appreciated as a separate aggravating circumstance in this case. When the circumstance of abuse
of superior strength concurs with treachery, the former is absorbed in the latter. Since there no
longer exists any aggravating circumstance, the proper penalty is reclusion perpetua, in
accordance with Article 63 paragraph 2 of the Revised Penal Code, it being the lesser penalty
between the two indivisible penalties for the crime of murder, which is reclusion perpetua to
death.[16]

WHEREFORE, the petition is DISMISSED. The Decision of the Court of Appeals dated April
29, 2011 in CA-G.R. CR-HC No. 00581-MIN, affirming the Decision of the Regional Trial
Court of Surallah, South Cotabato, Branch 26, dated October 1, 2007 in Criminal Case No. 2645-
B, which held accused-appellants Randy Bañez y Baylon and Ramil Bañez y Baylon guilty
beyond reasonable doubt of the crime of murder, is hereby AFFIRMED with MODIFICATION.
The award of civil indemnity is reduced to P50,000.00 and the award of moral damages is also
reduced to P50,000.00. All monetary awards for damages shall earn interest at the legal rate of
6% per annum from date of finality of this Decision until fully paid.

SO ORDERED.

Velasco, Jr., (Chairperson), Villarama, Jr., Perez,* and Jardeleza, JJ., concur.

THIRD DIVISION

[ G.R. No. 198796, September 16, 2015 ]

THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. NICOLAS LARA III Y

AGATEP AND RANDY ALCAYDE Y MAGUNDAYAO, ACCUSED, ABDUL MAMMAD Y
MACDIROL, LADGER TAMPOY Y BAGAYAD AND HATA SARIOL Y MADDAS, ACCUSED-
APPELLANTS.

DECISION

PERALTA, J.:
Before the Court is a Petition for Review on Certiorari seeking for the reversal of the
Decision[1] of the Court of Appeals (CA) dated March 30, 2011 in CA-G.R. CR-HC No. 04147.
The CA affirmed the Joint Decision[2] of the Regional Trial Court (RTC) of Quezon City, Branch
95, dated March 13, 2009 in Criminal Case Nos. Q-04-128604, Q-04-128605, Q-04-128606, and
Q-04-12860, finding accused-appellants Abdul Mammad, Ladger Tampoy, and Hata Sariol,
guilty beyond reasonable doubt of violation of Section 5,[3] Article II of Republic Act (R.A.) No.
9165.[4]

The Informations charged Mammad, Tampoy, and Sariol with violation of Section 5, Article II,
or Illegal Sale of Dangerous Drugs, while three (3) separate charges for violating Section 11
or Illegal Possession of Dangerous Drugs were filed against Mammad, Nicolas Lara III y
Agatep, and Randy Alcayde y Magundayao, to wit:

The undersigned accuses ABDUL MAMMAD Y MACDIROL, LADGER TAMPOY Y

BAGAYAD and HATA SARIOL Y MADDAS of Violation of Section 5, Art. II, RA 9165
(Comprehensive Dangerous Drugs Act of 2002), committed as follows:

That on or about the 4th day of August 2004 in Quezon City, Philippines, the said accused
conspiring together, confederating with and mutually helping one another, not being authorized
by law to sell, dispense, deliver, transport or distribute any dangerous drug, did, then and there
willfully, and unlawfully sell, dispense, deliver, transport, distribute or act as broker in the said
transaction, zero point twenty five (0.25) gram of white crystalline substance containing methyl
amphetamine hydrochloride, a dangerous drug.

Contrary to law.[5]

The undersigned accuses ABDUL MAMMAD Y MACDIROL, of Violation of Section 11, Art.
II, RA 9165 (Comprehensive Dangerous Drugs Act of 2002), committed as follows:

That on or about the 4th day of August 2004 in Quezon City, Philippines, the said accused, not
being authorized by law to possess any dangerous drug, did then and there willfully, unlawfully
and knowingly have in his/her/their possession and control, zero point sixteen (0.16) gram of
white crystalline substance containing methylamphetamine hydrochloride, a dangerous drug.

Contrary to law.[6]

The undersigned accuses NICOLAS LARA Y AGATEP III of Violation of Section 11, Art. II,
RA 9165 (Comprehensive Dangerous Drugs Act of 2002), committed as follows:

That on or about the 4th day of August 2004 in Quezon City, Philippines, the said accused, not
being authorized by law to possess any dangerous drug, did then and there willfully, unlawfully
and knowingly have in his/her/their possession and control, zero point zero eight (0.08) gram of
white crystalline substance containing methylamphetamine hydrochloride, a dangerous drug.

Contrary to law.[7]

The undersigned accuses RANDY ALCAYDE Y MAGUNDAYAO of Violation of Section 11,

Art. II, RA 9165 (Comprehensive Dangerous Drugs Act of 2002), committed as follows:

That on or about the 4th day of August 2004 in Quezon City, Philippines, the said accused, not
being authorized by law to possess any dangerous drug, did then and there willfully, unlawfully
and knowingly have in his/her/their possession and control, zero point zero six (0.06) gram of
white crystalline substance containing methylamphetamine hydrochloride, a dangerous drug.

Contrary to law.[8]

During arraignment, all of the accused pleaded not guilty to the charges against
them.[9] Thereafter, joint trial ensued.

The facts of the case are as follows:

On August 4, 2004, around 7:00 p.m., a confidential informant arrived at the Anti-Illegal Drugs
Unit of Police Station 3, Quirino Highway, Barangay Talipapa, Novaliches, Quezon City and
reported that he had been buying shabu from accused-appellants and two (2) other men on
Maguindanao St., Salam Mosque Compound, Tandang Sora, Quezon City. Police Chief
Inspector (PCI) Miguelito Paterno thus formed a team to conduct a buy-bust operation. He
designated PO2 Manny Panlilio as the poseur-buyer.

Thereafter, the buy-bust team boarded a Tamaraw FX and a Mitsubishi Adventure, and
proceeded to the target area. Upon reaching said area, they alighted and walked towards No. 504
Maguindanao Street, where they saw accused-appellants. The informant then introduced them to
PO2 Panlilio and told them that the latter was going to buy shabuworth P500.00. Mammad then
gave one (1) plastic sachet of shabu to Tampoy who, in turn, handed it to PO2 Panlilio. After
Sariol received the marked money as payment, PO2 Panlilio scratched his head, as the pre-
arranged signal. He then introduced himself as a police officer. The back-up police officers
rushed to the scene and secured the area. They arrested accused-appellants and were able to
recover plastic sachets of shabu from Mammad, Lara, and Alcayde.

Upon arrival at the police station, the police officers placed their markings on the seized plastic
sachets and turned them over to the investigator. They sent the specimens to the Philippine
National Police Crime Laboratory for examination. Subsequently, the recovered substances
yielded a positive result for shabu.
As for their defense, accused-appellants and the rest of the accused denied knowing each other.
Accused-appellants likewise denied selling shabu to PO2 Panlilio. All of them testified that they
were at their respective homes when they were suddenly arrested, brought to the police station,
and detained. Later, they were brought before an inquest prosecutor. Then they were informed
that they were being charged with violation of Sections 5 and 11, Article II of R.A. No. 9165.

On March 13, 2009, the Quezon City RTC rendered a Decision, the dispositive portion of which
reads:

WHEREFORE, the Court renders its joint decision in the following cases to wit:

I. In Criminal Case No. Q-04-128604:

The Court finds accused ABDUL MAMMAD y MACDIROL, LADGER TAMPOY y

BAGAYAD and HATA SARIOL y MADDAS "GUILTY" beyond reasonable doubt for
violation of Section 5, Art. II of R.A. 9165, and each of them is hereby sentenced to suffer the
penalty of LIFE IMPRISONMENT and to pay a FINE in the amount of FIVE HUNDRED
THOUSAND PESOS (P500,000.00);

II. In Criminal Case No. Q-04-128605:

The Court finds accused ABDUL MAMMAD y MACDIROL "NOT GUILTY" considering that
the prosecution Jailed to prove his guilt beyond reasonable doubt for violation of Section 11, Art.
II of R.A. 9165;

III. In Criminal Case No. Q-04-128606:

The Court finds accused NICOLAS LARA y AGATEP III "NOT GUILTY" considering that the
prosecution failed to prove his guilt beyond reasonable doubt for violation of Section 11, Art. II
of R.A. 9165; and

IV. In Criminal Case No. Q-04-128607:

The Court finds accused RANDY ALCAYDE y MAGUNDAYAO "NOT GUILTY" considering
that the prosecution failed to prove his guilt beyond reasonable doubt for violation of Section 11,
Art. II of R.A. 9165;

The pieces of evidence subject matter of these cases are hereby ordered to be safely delivered to
the Philippine Drug Enforcement Agency for proper disposition.
IT IS SO ORDERED.[10]

Thus, Mammad, Tampoy, and Sariol, the ones who were declared guilty, elevated the case to the
CA. On March 30, 2011, the CA affirmed the trial court's Decision, thus:

WHEREFORE, in view of the foregoing premises, the instant appeal is DISMISSED. The Joint
Decision of the Regional Trial Court of Quezon City, Branch 95, dated 13 March 2009, finding
accused-appellants guilty beyond reasonable doubt of violation of Section 5, Article II of R.A.
No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, is
hereby AFFIRMED.

SO ORDERED.[11]

Hence, the instant appeal. Accused-appellants assert that the police officers failed to follow the
procedures laid down in Section 21, Article II of R.A.No. 9165.

The appeal lacks merit.

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

Sec. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs,
Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall take charge and
have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The
apprehending team having initial custody and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ),
and any elected public official who shall be required to sign the copies of the inventory and be
given a copy thereof;

It is settled that failure to strictly comply with the aforementioned provision will not result in an
illegal arrest or the seized items being inadmissible in evidence.[12] Under Section 21 (a) of the
Implementing Rules and Regulations (IRR) of R.A. No. 9165, substantial compliance is
recognized, thus:

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

Moreover, there are links that must be established in the chain of custody in a buy-bust situation,
to wit: (1) the seizure and marking, if practicable, of the illegal drug recovered from the accused
by the apprehending officer; (2) the turnover of the illegal drug seized to the investigating
officer; (3) the turnover by the investigating officer of the illegal drug to the forensic chemist for
laboratory examination; and (4) the turnover and submission of the illegal drug from the forensic
chemist to the court.[13]

Non-compliance with the procedure outlined in Section 21, Article II of the IRR of R.A. No.
9165 shall not render void and invalid such seizure as long as the arresting officers successfully
preserved the integrity and evidentiary value of the confiscated items.[14] Here, while it is true
that the police officers failed to make an inventory and take photographs, the prosecution was
able to prove, however, that the sachet of shabu confiscated during the buy-bust operation was
the same item presented and identified before the court. They were able to maintain the integrity
of the seized drug and establish that the links in the chain of custody were not compromised.
After seizure of the subject specimen, the authorities went to the police station where PO2
Panlilio immediately marked it with "MSP/LBT", which stands for his initials and that of
Tampoy. He then turned it over to the police investigator, PO1 Darwin Pua.[15] Thereafter, PO1
Pua prepared the letter request for laboratory examination dated August 5, 2004. PO2 Ronald
Adona then submitted the seized shabu to the crime laboratory, which was received by the
Forensic Chemical Officer, Engineer Leonard M. Jabonillo. After examination, the submitted
substance tested positive for Methylamphetamine hydrochloride or shabu, as reflected in
Chemistry Report No. D-732-2004.[16]

Verily, the prosecution was able to establish the unbroken chain of custody over the recovered
drug, from the time it came into the possession of the apprehending officers, to the time it was
brought to the police station, then to the crime laboratory for testing, up to the time it had to be
offered in evidence. The Court, therefore, finds that the courts below aptly held that the
requirements under R.A. No. 9165 had been sufficiently complied with.

WHEREFORE, the petition is DISMISSED. The Court of Appeals Decision dated March 30,
2011 in CA-G.R. CR-HC No. 04147, affirming the Joint Decision of the Regional Trial Court of
Quezon City, Branch 95, dated March 13, 2009 in Criminal Case Nos. Q-04-128604, Q-04-
128605, Q-04-128606, and Q-04-128607, finding accused-appellants Abdul Mammad y
Macdirol, Ladger Tampoy y Bagayad, and Hata Sariol y Maddas, guilty beyond reasonable
doubt of violation of Section 5, Article II of Republic Act 9165, is hereby AFFIRMED.

SO ORDERED.

Velasco, Jr., (Chairperson), Villarama, Jr., Perez,* and Leonen,** JJ., concur.

SECOND DIVISION

[ G.R. No. 212940, September 16, 2015 ]

CHRISTOPHER DELA RIVA Y HORARIO, PETITIONER, VS. PEOPLE OF THE

PHILIPPINES, RESPONDENT.

DECISION

MENDOZA, J.:

Challenged in this petition for review is the February 13, 2014 Decision[1] of the Court of
Appeals (CA), in CA-G.R. CR-HC No. 05895, which affirmed the August 30, 2012
Decision[2] of the Regional Trial Court, Branch 75, Olongapo City (RTC), finding the petitioner,
accused Christopher Dela Riva y Horario (Dela Riva), guilty beyond reasonable doubt for
violation of Section 5, Article II of Republic Act (R.A.) No. 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2002.

The Facts

On April 29, 2009, an Information was filed charging accused with violation of Section 5,
Article II of R.A. No. 9165. The accusatory portion of the Information reads:

That on or about the 28th day of April 2009, at about 6:00 in the morning, in Brgy. Calapacuan,
Municipality of Subic, Province of Zambales, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, did then and there willfully, unlawfully and feloniously
without any lawful authority, give away, deliver and sell one (1) heat-sealed transparent plastic
sachet weighing 1.3095 grams of Methamphetamine Hydrochloride, known as 'shabu,' a
dangerous drug, to a poseur-buyer for One Thousand (Php1, 000.00) Pesos marked money.

CONTRARY TO LAW.[3]
On June 3, 2009, Dela Riva was arraigned and he pleaded not guilty to the offense charged.

Prosecution version and evidence

On April 27, 2009 a confidential agent reported to the officers at the National Headquarters
Special Enforcement Services, Philippine Drug Enforcement Agency (PDEA) Headquarters at
Brgy. Piñahan, Quezon City that a certain Chris, who turned out to be appellant herein, is doing
illegal drug activities at Brgy. Calapacuan, Subic, Zambales.

Acting on the report, a briefing was conducted to entrap the suspect. IO1 Enrique Lucero was
assigned as the poseur-buyer. The briefing was followed by a pre-operation report and an
authorization to operate. A Certificate of Coordination was then issued by the PDEA National
Operating Center. Such a document is issued whenever an operation is to be conducted outside
the national headquarters. Boodle money in the amount of P60,000.00 was prepared with two (2)
P500.00 as the actual money placed on top of the bundle. Said amount was for ten (10) grams of
shabu as agreed between the confidential agent and herein appellant.

Said buy-[bust] operation was intended for two (2) targets, appellant herein and a certain Jun
Magsaysay. After the preparation was done, the team proceeded from Manila to Subic on April
28, 2009. The team stopped at Angeles City around 8 o'clock in the evening and stayed there for
about three (3) hours because the confidential agent received a text message from appellant that
the ten (10) grams of shabu [was] not yet complete.

At 2 o'clock, the team then proceeded to Subic and arrived at the target area around 5 o'clock.
The specific location was at Maniago Street, Brgy. Calapuan, Subic. Those who went to
Maniago Street were Agent Lucero, Agent Tumabini, Agent Fajardo and the civilian asset. The
rest of the team or the back-up team stayed at the National Highway at Brgy. Calapuan.

The team waited at the vehicle near a residential place with a store and after a few moments,
appellant appeared. The confidential agent and Agent Lucero approached appellant and
introduced Agent Lucero. Agent Lucero then asked appellant for the agreed item to which the
latter replied, "Andito na pare pero kulang pa." Appellant then invited them to go to a certain
Abu to get the rest of the items and then proceeded to Abu's house.

The trio walked to the house of "Abu" which was about fifteen (15) to twenty (20) meters away.
The house is located in a squatter area and the walls were dilapidated. The three (3) entered the
house which has no bedroom but with a curtain to separate some parts of it. Inside, they saw two
(2) persons having a pot session.

Agent Lucero then asked appellant for the rest of the items who upon saying "sa akin na lang
muna pare" handed to him from his pocket a small transparent plastic sachet. Agent Lucero then
put the small sachet in the right pocket of his pants. Agent Lucero again asked for the rest and
appellant asked for the payment. Agent Lucero then handed to appellant the boodle money which
was placed in an envelope.

While appellant is opening the envelope, Agent Lucero made a missed call to their team leader
but after a few seconds they heard a voice shouting from the outside, "Abu-Abu." The two (2)
persons who were having pot session inside the house then rushed to the door and run outside
and Agent Lucero introduced himself to appellant as PDEA Agent and arrested him. The back-
up team then entered the house to assist in the arrest while others chased the two (2) persons who
ran away. However, they were not able to catch them.

The team saw in plain view some paraphernalia inside the house and these were two (2) pieces
aluminum foil, improvised water pipe, five (5) pieces disposable lighters and several transparent
plastic sachets. They confiscated said items.

After informing appellant of his rights, they immediately left the area. The inventory was
conducted at the National Headquarters of PDEA for security and safety considerations. The
inventory was witnessed and also signed by a Barangay Kagawad while photographs were also
taken.

A request for the laboratory examination of the specimen yielded positive results for the presence
of methamphetamine hydrochloride. Appellant's urine was also tested and yielded positive for
the presence of methamphetamine hydrochloride.[4]

The prosecution offered the following exhibits as evidence:

Exhibit "A" - Pre-operation Report[5]

Exhibit "B" - Authority to Operate[6]
Exhibit "C" - Certificate of Coordination[7]
Exhibit "D" to "E" - marked money[8]
Exhibit "F" - white window envelope and boodle money
Exhibit "G" - Inventory of Seized Evidence[9]
Exhibit "H" - photograph of witnesses signing the inventory[10]
Exhibit "I" - photograph of seized drug and paraphernalia[11]
Exhibit "J" and series - shabu and drug paraphernalia
Exhibit "K" to "K-1" - Letter Request for Drug Testing[12]
Exhibit "L" - Chemistry Report[13]
Exhibit "M" - Letter Request for Drug Testing[14]
Exhibit "N" - Letter Request for Physical/Medical Examination[15]
Exhibit "O" - Result of the Physical Examination[16]
Exhibit "P" and series - Sworn Statement of the Poseur-Buyer[17]
Exhibit "Q" - PDEA Certification[18]
Exhibit "R" to "R-1" - Booking Sheet and Arrest Report[19]
Exhibit "S" and series - Chemistry Report for Drug Test[20]

Defense Version and evidence

According to the accused, xxx he was already detained at the PDEA on April 28, 2009 at around
6:00 o'clock in the morning, as he was arrested on April 26, 2009 at about 10:00 in the afternoon
at Barangay Calapacuan, Subic, Zambales, while at the house of his grandfather Ronnie Horario.
At that time, he received a cellphone call from a certain Jovann inviting him to go to the casino,
and they agreed that the latter would fetch accused. Accused decided to go home at Rizal, San
Marcelino, Zambales, because Jovann was not replying to his text message. While he was
waiting for a passenger jeep, Jovann arrived on board a CRV, and invited accused to board.
Inside the vehicle were four passengers including the driver,and Jovann introduced accused to
them. They went to SBMA and accused thought that they would play at the casino, but instead
they travelled through SCTEX and accused was told that they would play casino at Angeles City.

Accused felt nervous and started asking where they were really heading. The driver told him to
just relax and they will soon reach their destination. Accused tried to control his fear as he was
with a friend, and from then on they used to play at the Oriental Casino, SBMA, every weekend.

Accused was brought at the PDEA Headquarters in Quezon City, and when he asked why they
were there, Jovann told him to be silent. The man seated beside accused gave him a handcuff and
told him to wear it. Accused asked what his violation was, but a gun was poked at his chest. A
man told him in a loud voice to wear the handcuffs, and he obeyed. He was investigated inside
an office and was told that he was selling drugs which he denied. After asking his personal
circumstances he was asked for a "palit-ulo" meaning, that he should produce another person
selling drugs in exchange for his release, but accused denied any knowledge of anyone involved
in drug trade.

Accused was then told to sign the Booking Sheet Arrest Report which he did. He just filled up
the portion for his personal circumstances and name of relatives but the other entries were
provided by the investigator, and then he signed the document. The pictures were taken on April
27, 2009 prior to the alleged arrest on April 28, 2009. Agent Enrique Lucero was not among
those in the vehicle and he first saw him at the office. Accused is not aware of the execution of
the Inventory of Seized Items and he did not see the Kagawad who allegedly signed it. At the
PDEA Compound were several men in uniform and one of them investigated accused. He did not
see Jovann anymore. Accused denied that the items in the inventory were taken from him.
Accused former counsel demanded copy of the logbook and blotter of his departure and arrival
to prove that he was arrested on April 26 and not on April 28, 2009, but nothing happened to the
request.[21]
Dela Riva offered the following exhibits as evidence:

Exhibit "1" - Booking Sheet and Arrest Report

Exhibit "2" - Pictures of the accused taken on April 28, 2009[22]

The RTC Ruling

On August 30, 2012, the RTC convicted Dela Riva for the offense charged, stating that the
prosecution was able to establish his guilt with moral certainty based on the consistent, positive,
straightforward, convincing, and credible testimonies of the police witnesses and the supporting
documentary and object evidence it presented. The RTC found that all the elements of the crime
were established, to wit: 1) the identity of the buyer and the seller, the object and consideration;
and 2) the delivery of the thing sold and the payment thereof.

The RTC did not give weight to the defense of frame-up put up by Dela Riva as it could not
prevail over the positive declaration of the poseur-buyer and the compelling documentary
evidence shown by the prosecution. The trial court opined that the procedural lapse committed
by the apprehending team with respect to the requirements under Section 21 of R.A. No. 9165
was not fatal to its cause because the integrity and the evidentiary value of the seized items were
properly preserved and safeguarded by the apprehending officers.

The RTC stated that the chain of custody of the seized drug, which involved only one (1) sachet
of shabu, was continuous and unbroken. In the absence of proof of tampering of evidence, bad
faith and ill will on the part of the buy-bust team, the police officers were to be presumed to have
regularly performed their duties. The RTC, thus, disposed:

WHEREFORE, the Court finds CHRISTOPHER DELA RIVA GUILTY beyond reasonable
doubt of Violation of Sec. 5, RA 9165 and sentences him to suffer the penalty of life
imprisonment and to pay a fine of P500,000.00 plus cost, without subsidiary imprisonment in
case of insolvency.

The accused shall also suffer the accessory penalties under Section 35, RA 9165 and shall be
credited in the service of his sentence with the full time during which he has undergone
preventive imprisonment subject to the conditions imposed under Art. 29 of the Revised Penal
Code as amended.

The sachet of shabu marked Exh. 'J' of the Prosecution is ordered confiscated in favor of the
government and to be disposed of in accordance with law.

SO DECIDED.[23]
The CA Ruling

On appeal, the CA affirmed the decision of the RTC. It basically stated that the integrity of the
drugs seized from the accused was preserved and that the chain of custody of the subject drugs
was unbroken. The CA pointed out that the confiscated drugs remained under the care of PDEA
Agent Lucero (Agent Lucero) until he reached the PDEA National Headquarters at Barangay
Piñahan, Quezon City. He immediately marked the same with his signature in the presence of the
accused and Barangay Kagawad Jose Ruiz before turning it over to the crime laboratory for
examination. Subsequently, the same sachet bearing the same markings was completely
examined within 24 hours of seizure by Chemist Engineer Elaine E. Erno and found to be
positive for methamphetamine hydrochloride, a dangerous drug.

The CA pointed out that non-compliance with the strict directive of Section 21 of R.A. No. 9165
was not necessarily fatal to the prosecution case as long as there were justifiable grounds for the
lapses committed and the integrity and evidentiary value of the evidence seized were preserved.

The CA added that when the prosecution presented the transparent plastic sachet before the
Court, Agent Lucero positively identified it as one which came from Dela Riva. The appellate
court stated that the integrity of the evidence was presumed to have been preserved unless there
was a showing of bad faith ill will or proof that the evidence had been tampered with. Dela Riva
had the burden of showing that the evidence was tampered or meddled with to overcome the
presumption of regularity in the handling of the exhibits by public officers and in the discharge
of their duties. Unfortunately, Dela Riva failed to produce convincing proof that there was
tampering of the evidence of the prosecution.

Regarding the defense of frame-up and inconsistencies in the manner of operation, the CA
opined that they could not prevail over the positive, straightforward and convincing testimonies
of the police operatives who performed their duties regularly, in accordance with law and
without any improper motive. The arrest of Dela Riva was made in the course of an entrapment,
following a surveillance operation, normally performed by police officers in the apprehension of
violators of the Dangerous Drugs Act. The CA concluded that there was a consummated sale
between the poseur-buyer and Dela Riva. The dispositive portion of the CA decision reads:

WHEREFORE, premises considered, the: 1) August 30, 2012 Decision; and 2) October 18, 2012
Order of the Olongapo City, Regional Trial Court, Branch 75, in Criminal Case No. 135-09
convicting Christopher Dela Riva y Horario for violation of Section 5 of Republic Act No. 9165,
are hereby AFFIRMED. No costs.

SO ORDERED.[24]
Aggrieved, Dela Riva filed the subject petition seeking the reversal of the CA decision and a
judgment of acquittal based on the following

GROUNDS

THERE WAS A MISAPPRECIATION OF FACTS, WHICH IF CONSIDERED, WOULD

OVERTURN THE DECISION RENDERED BY THE COURT OF APPEALS.

THERE WAS FAILURE TO ESTABLISH THE IDENTITY AND INTEGRITY OF THE

DRUGS ALLEGEDLY SEIZED FROM ACCUSED-APPELLANT.

THE HONORABLE COURT OF APPEALS ERRED WHEN IT RULED THAT THE GUILT
OF ACCUSED-APPELLANT WAS PROVEN BEYOND REASONABLE DOUBT.[25]

Position of the Accused

Accused Dela Riva mainly argues that the prosecution failed to establish the identity and the
integrity of the drugs seized. He claims that the PDEA operatives disregarded the procedural
rules under Section 21 of the Implementing Rules and Regulations (IRR) of R.A. No. 9165 in
conducting the seizure and identification of the drugs. He submits that the prosecution committed
the following errors, which if properly considered, would not establish his guilt with moral
certainty:

1) There was no clear and definite testimony of IO1 Lucero as to the marking of the seized
items. He mentioned only in his direct-examination that he inspected the items confiscated
in their vehicle. Notably, the said testimony constituted the totality in the marking of the
seized evidence.

2) Taking of photos and inventory of illicit materials purportedly seized from appellant and in
the crime scene was not conducted in the place where the purported arrest was effected.
This is not surprising since, in actuality, the PDEA operatives in the instant case had never
conducted an arrest. Instead what they have done was to frame-up the petitioner;

3) No representative of the Department of Justice or of the media was present during the
marking, taking of pictures and inventory of the illicit materials purportedly seized from
petitioner and in the crime scene;

4) The barangay official, who the prosecution claims to have been present during the
inventory, was not present during the arrest of petitioner, in violation of what the law
 enjoins law officers to follow;

5) There was a violation by the PDEA operatives of their duty to deliver petitioner to the
nearest police station or jail without unnecessary delay which is in this case, their regional
office in Pampanga; and

6) There was no written explanation as to why a) said marking, taking of pictures and
inventory were not done in the place mandated by law for the same to be done; b) no
representatives from the Department of Justice or from the media were present; and c) the
barangay official, who the prosecution claims to have been present during the inventory,
was not present during the arrest of petitioner.[26]

Position of the Prosecution

The Office of the Solicitor General (OSG) argues that the factual findings of the CA were
supported by substantial evidence and could no longer be reviewed in the petition for review
filed by Dela Riva. His guilt was proven beyond reasonable doubt when the prosecution was able
to establish the elements for the illegal sale of a dangerous drug, to wit: 1) the identity of the
buyer and the seller, the object and consideration; and 2) the delivery of the thing sold and
payment therefor. The positive, straightforward, convincing, and credible testimony of Agent
Lucero, coupled with the physical evidence on record, are enough proof that the accused
committed the offense charged.

The Court's Ruling

After a review of the evidentiary records as well as the applicable law and jurisprudence on the
matter, the Court finds merit in the petition and, for said reason, renders a verdict of acquittal.

Presumption of Innocence; Burden of Proof

It is fundamental in our Constitution[27] and basic in our Rules of Court[28] that the accused in a
criminal case enjoys the presumption of innocence until proven guilty. Likewise, it is well-
established in jurisprudence that the prosecution bears the burden to overcome such presumption.
If the prosecution fails to discharge this burden, the accused deserves a judgment of acquittal. On
the other hand, if the existence of proof beyond reasonable doubt is established by the
prosecution, the accused gets a guilty verdict.

In order to survive the test for a successful prosecution of cases of illegal sale of dangerous
drugs, the prosecution must be able to: 1) establish the essential elements of the crime - (a) the
identity of the buyer and the seller, the object and consideration of the sale, and (b) the delivery
of the thing sold and the payment therefor; and 2) strictly follow the seizure and custody
procedure provided under Section 21 (1) of R.A. No. 9165 and Section 21 (a) of the IRR.

Section 21 of R.A. No. 9165 has been amended by R.A. No. 10640 (An Act to Further
Strengthen the Anti-Drug Campaign of the Government, Amending for the Purpose Section 21 of
Republic Act No. 9165, Otherwise Known as the Comprehensive Dangerous Drugs Act of 2002).
Considering that the buy-bust incident in this case transpired on April 28, 2009 and the old law
was favorable to the accused, the Court shall be guided by the earlier version of Section 21 and
its corresponding IRR, viz.:

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

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

xxx [Emphasis Supplied]

Section 21 (a), Article II of the IRR of R.A. No. 9165, states: xxx

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

xxx

[Emphases Supplied]

The above procedure serves as a proper guideline for police officers involved in drug buy-bust
operations in moving the seized drugs from the time of arrest and seizure up to the laboratory
examination and finally to its presentation in court. The purpose of this legal process is to
preserve the identity, integrity and evidentiary value of the seized drugs through an unbroken
chain of custody. The chain of custody is divided into four (4) links: first, the seizure and
marking, if practicable, of the illegal drug recovered from the accused by the apprehending
officer; second, the turnover of the illegal drug seized by the apprehending officer to the
investigating officer; third, the turnover by the investigating officer of the illegal drug to the
forensic chemist for laboratory examination; and fourth, the turnover and submission of the
marked illegal drug seized by the forensic chemist to the court.[29]

Chain of Custody Broken

In the case at bench, the prosecution breached the first link right away when the buy-bust team
failed to immediately mark the seized drugs, conduct a physical inventory and photograph the
same after the arrest of the accused and the confiscation of the seized drugs. The law requires
that the marking, physical inventory and photograph be conducted at the nearest police station or
at the nearest office of the apprehending officer/team, whichever is practicable, in case of
warrantless seizures. Additionally, the law requires that the said procedure must be done in the
presence of the accused or the person/s from whom such items were confiscated and/or seized, or
his/her representative or counsel, a representative from the media and the Department of Justice
(DOJ), and any elected public official who shall be required to sign the copies of the inventory
and be given a copy thereof. Surprisingly, the PDEA agents in this case failed to observe the
proper procedures.

In the prosecution of illegal sale, what is essential is to prove that the transaction or sale actually
took place, coupled with the presentation in court of evidence of the corpus delicti. The
consummation of sale is perfected the moment the buyer receives the drug from the seller. In this
case, the prosecution failed to prove that the four sachets which tested positive for shabu and
eventually presented in court were the same ones confiscated by the police officers due to its
non-marking at the place where the buy-bust operation was committed at the police station.

In People v. Nacua, the Court emphasized that given the unique characteristic of dangerous and
illegal drugs which are indistinct, not readily identifiable, and easily susceptible to tampering,
alteration, or substitution, either by accident or otherwise, there must be strict compliance with
the prescribed measures during and after the seizure of dangerous drugs and related
paraphernalia, during the custody and transfer thereof for examination, and at all times up to
their presentation in court.[30]

[Emphases supplied]

Agent Lucero stated in paragraph 13 of his affidavit that the seized drugs
were immediately marked after he made the arrest. Yet, he gave a different statement during his
testimony. He admitted that the marking, inventory and photographing of the seized drugs were
all made and conducted only at the PDEA National Headquarters in Quezon City located several
kilometers away from the scene of the buy-bust operation.

Q And what happened next Mr. Witness after you have completed the seizure of the item in a
clean view and have the suspect arrested?

A We immediately left the area, and proceeded to the vehicle and after proceeding to the
vehicle, we inspect the items confiscated.

Q Mr. witness, where were you now when you inspect all the items?

A At the vehicle, ma'am.

Q Which was parked outside of the house of the accused?

A Yes, ma'am.

Q Did you prepare an inventory of all the items that were seized and the item that you actually
purchased?

A Yes, ma'am.

Q And where was the inventory prepared?

A It was prepared at the National Headquarters in Manila, ma'am.[31]

On cross, he testified as follows:

Q And Mr. witness, this drug items were inventoried and photographed according to you at the
national office?

A Yes sir.
Q And who prepared this Mr. witness or who sealed these items?

A I was the one, sir.

Q Where?

A At the office, sir.

Q So, you were the one in this Exhibit "J" the plastic sachet of shabu you were the one who
put this plastic tape and sealed it?

A This one sir, the crime laboratory, this one is my initial.

Q Also the other tape in the other item?

A Yes sir.[32]

Contrary to his statement in his affidavit, Agent Lucero never confirmed that he conducted the
marking, physical inventory and photograph of the seized items in the presence of the accused,
his lawyer, a media representative or DOJ representative, or an elected official from Brgy.
Calapacuan or Municipality of Subic or even the Province of Zambales. The only one present
was Barangay Kagawad Jose Y. Ruiz, Jr. (Kagawad Ruiz) who was from Barangay Piñahan,
Quezon City, where the PDEA National Headquarters was located. Kagawad Ruiz was definitely
not present at the scene of the buy-bust operation.

Q And Mr. witness at the time of the preparing of this inventory and photography there was no
presence of media, correct?

A None, sir.

Q No presence of the DOJ representative?

A None, sir.

Q No presence of elected Brgy. Calapacuan of Municipality of Subic?

A None, sir.

Q But according to you only the presence of Brgy. Official of Brgy. Piñahan?

A Yes, sir.

Q Where this National Office is located at?

A Yes, sir.

Q Mr. witness, I will go to the Inventory, this Mr. Jose Y. Ruiz is a Brgy. Kagawad of Brgy.
Piñahan, do you agree?

A Yes, sir.

Q And this person was the one who witnessed the inventory?

A Yes, sir.

Q But not the seizure?

A Yes, sir.

Q So, this incorrect, witness to seizure and then below that, is the signature of Jose Ruiz, do
you confirm that?

A Yes, sir.

Q So, he only witnessed the inventory that he made?

A Yes, sir.

Q And Mr. witness will you agree with me that this inventory of seized evidence is made not
under oath?
A Yessir.[33]

Agent Lucero further admitted that they left Brgy. Calapacuan, Subic, Zambales, early in the
morning and arrived at the PDEA National Headquarters in Quezon City at past 9:00 o'clock in
the morning after a stopover for more than an hour at a gasoline station along the North Luzon
Expressway (NLEX). Thereafter, they rested upon reaching the PDEA National Headquarters.
After resting, they prepared the request for laboratory examination and conducted an inventory.

Q And at what time you arrived in the National office Mr. witness?

A Past 9 A.M. sir.

Q So, what happened when you already reached the national office at Quezon City?

A We rested sir and then we prepared the request for laboratory examination and we also
made an inventory.

Q Including the photography?

A Yes, sir.

Q In your office?

A Yes, sir.

Q Not at the crime scene?

A No, sir.[34]

[Emphases Supplied]

Records further show that Agent Lucero failed to give a credible and convincing justification for
the delay in the marking, physical inventory and photographing of the seized items. When asked
about the delay, he gave three different answers. First, he reasoned out that he was concerned
with their security and safety; that they lacked sleep; and that there were so many operations
conducted in the area.

Q And where was the inventory prepared?

A It was prepared at the National Headquarters in Manila, ma'am.

Q Why not there at the scene itself Mr. witness?

A Because we are thinking of the security, safety at the same time we are lack of sleep.

Q Mr. witness, what was it in that area you which made you fear that your safety and security
was going to be threatened Mr. witness?

A Because there were so many operation conducted in that area.[35]

Second, Agent Lucero explained that they proceeded to the National Headquarters so he could
immediately prepare all the needed documents.

Q Is that the reason why from the crime scene you straight to the headquarters because you do
not know where the Regional Office?

A No, sir.

Q So, what was the reason in proceeding to the National Headquarters?

A To immediately prepare all the documents needed.[36]

Third, he immediately left Zambales upon the instruction of their team leader.

Q But was it not better if you will proceed with your regional office in San Fernando to
prepare this inventory and photography instead of going to your office in Quezon City
preparing this inventory and photography?

A That is the instruction of the team leader, sir.[37]

The buy-bust team knew that PDEA had a regional office near the area but, surprisingly, they
still proceeded to the National Headquarters in Quezon City on the flimsy excuse that Agent
Lucero was not familiar with the address of the Pampanga Regional Office.

Q Mr. witness, do you have a PDEA Regional Office?

A Yes, sir.

Q Here in Region 3 where this Brgy. Calapacuan, Subic, Zambales, is located. Do you have a
 Regional Office?

A We have a Regional Office in Region 3, I am not familiar with the address, sir, it is Camp
Olivas, I think, sir.

Q Where is that Camp Olivas?

A I am not familiar with that address, sir.

Q Is it is Olongapo, Subic, Bataan, Pampanga?

A Pampanga, sir.[38]

Unquestionably, the immediate marking of the seized drugs is the first and the most crucial point
in the custodial links. The significance of this link was elaborately discussed in the recent case
of People of the Philippines vs. Beverly Alagarme y Citoy,[39]

With this concern for the due recording of the authorized movement and custody of the seized
drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment, the
presentation as evidence in court of the dangerous drugs subject of the illegal sale is material in
every prosecution for the illegal sale of dangerous drugs. This materiality derives from
the dangerous drugs being themselves the corpus delicti. Indeed, proof of the corpus delicti is
essential in every judgment of conviction. Without proof of the corpus delicti, there is
uncertainty about whether the crime really transpired or not. To eliminate the uncertainty, the
Prosecution should account for every link in the chain of custody; otherwise, the crime is not
established beyond reasonable doubt. In other words, the Prosecution does not comply with the
indispensable requirement of proving the violation of Section 5 of Republic Act No. 9165 either
when the dangerous drugs are missing or when there are substantial gaps in the chain of custody
of the seized dangerous drugs that raise doubts about the authenticity of the evidence presented
in court.

A reading of the record indicates that the buy-bust team did not observe the procedures laid
down by Republic Act No. 9165 and its IRR. The marking of the seized drugs or other related
items immediately upon seizure from the accused is crucial in proving the chain of custody
because it is the starting point in the custodial link. The marking upon seizure serves a two-fold
function, the first being to give to succeeding handlers of the specimens a reference, and the
second being to separate the marked evidence from the corpus of all other similar or related
evidence from the time of seizure from the accused until their disposition at the end of criminal
proceedings, thereby obviating switching, "planting," or contamination of evidence. This
requirement of marking as laid down by the law was not complied with. Firstly, PO1 Mendoza
simply stated that he did the marking of the confiscated items with his initials inside the Toyota
Revo. Although the appellant was also inside the Toyota Revo at that time, he did not state if his
marking was done within the view of the appellant, or within the view of any representative from
the media, Department of Justice or any elected public official. Secondly, both he and MADAC
Operative Castillo did not indicate if any media or DOJ representative or elected public official
had been present during the buy-bust operation and when the drugs were recovered from the
appellant at the scene of the apprehension. The law unequivocally required such presence.
Thirdly, there was also no showing of any inventory of the confiscated items being undertaken or
prepared. The lack of the inventory was confirmed by the absence of any certificate of inventory
being formally offered as evidence by the Prosecution. Lastly, the Prosecution did not produce
any photographs taken of the sachets of shabu immediately following their seizure.

[Emphases Supplied]

The Court would like to stress that the prosecution had the chance to redeem their cause through
the saving mechanism provided in the last paragraph of Section 21 (a), Article II of the IRR of
R.A. No. 9165 which provides that non-compliance with the safeguards of the chain of custody
would not be fatal to the prosecution's cause if there would be a justified explanation for it.
Unfortunately, the prosecution failed to provide a credible and convincing explanation, justifying
the marking, physical inventory and photographing of the seized items in the far away PDEA
National Headquarters in Quezon City rather than in the nearer PDEA Regional Office in
Pampanga.

The prosecution did not bother either to give a sufficient justification on why the marking,
physical inventory and photographing were not done in the presence of the accused or his
counsel or a media representative or a DOJ representative or an elected official who was at the
crime scene. The prosecution chose to remain silent about their absence or the reason why they
were not informed earlier. Indeed, the prosecution's unjustified non-compliance with the
safeguards of the chain of custody constitutes a fatal procedural flaw that destroys the reliability
of the corpus delicti.

Aside from the defect in the first link, there was also a fatal procedural lapse in the fourth link of
the chain. Chemist Elaine Erno testified that she received the seized drugs from Agent Lucero
and his request for laboratory examination. The records, however, are bereft of any testimonial
or documentary evidence whatsoever as to how the seized drug was kept while in the custody of
the evidence custodian until it was brought to the court. There were even no details given on the
identity of the evidence custodian and how the seized drug was handled and transferred before it
was presented in court. No information was given as to how the evidence custodian preserved the
seized drug while it was in his/her custody.

Section 21 of R.A. No. 9165, as amended by R.A. No. 10640

Granting that the new but more stringent provisions of Section 21 of R.A. No. 9165, as amended
by R.A. No. 10640,[40] are applicable, the prosecution's case would still fail. Section 21 now
reads as follows:

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

(1) The apprehending team having initial custody and control of the dangerous drugs, controlled
precursors and essential chemicals, instruments/paraphernalia and/ or laboratory equipment shall,
immediately after seizure and confiscation, conduct a physical inventory of the seized items and
photograph the same in the presence of the accused or the persons from whom such items were
confiscated and/or seized, or his/her representative or counsel, with an elected public official and
a representative of the National Prosecution Service or the media who shall be required to sign
the copies of the inventory and be given a copy thereof: Provided, That the physical inventory
and photograph shall be conducted at the place where the search warrant is served; or at the
nearest police station or at the nearest office of the apprehending officer/team, whichever is
practicable, in case of warrantless seizures: Provided, finally, That noncompliance of these
requirements under justifiable grounds, as long as the integrity and the evidentiary value of the
seized items are properly preserved by the apprehending officer/team, shall not render void and
invalid such seizures and custody over said items.

xxx xxx xxx

(3) A certification of the forensic laboratory examination results, which shall be done by the
forensic laboratory examiner, shall be issued immediately upon the receipt of the subject item/s:
Provided, That when the volume of dangerous drugs, plant sources of dangerous drugs, and
controlled precursors and essential chemicals does not allow the completion of testing within the
time frame, a partial laboratory examination report shall be provisionally issued stating therein
the quantities of dangerous drugs still to be examined by the forensic laboratory. Provided,
however, That a final certification shall be issued immediately upon completion of the said
examination and certification;

xxx xxx xxx. [Emphases and Underscoring Supplied]

Under the current Section 21, noncompliance of the requirements shall not render void and
invalid such seizures and custody over said items as long as the integrity and the evidentiary
value of the seized items are properly preserved by the apprehending officer/team. It must be
stressed, however, that the non-compliance must be for "justifiable grounds." In this case, the
PDEA agents failed to convince the Court that they had justifiable reasons not to immediately
and strictly comply with the provisions of the law so as to comply with the chain of custody
requirements.

It could be that the accused was engaged in the sale of dangerous drugs. A doubt, however,
lingers because the flaws in this particular link coupled with the defects in the first link are so
glaring that the Court cannot ignore them as they definitely compromised the identity, integrity
and evidentiary value of the seized drugs.

There being a doubt, the Court resolves it in favor of the accused.

WHEREFORE, the petition is GRANTED. The February 13, 2014 Decision of the Court of
Appeals in CA-G.R. CR-HC No. 05895 is REVERSED and SET ASIDE. The accused,
Christopher Dela Riva y Horario, is ACQUITTED of the crime charged against him and ordered
immediately RELEASED from custody, unless he is being held for some other lawful cause.

The Director of the Bureau of Corrections is ordered to implement this decision and to inform
this Court of the date of the actual release from confinement of the accused within five (5) days
from receipt of copy.

SO ORDERED.

Carpio, (Chairperson), Del Castillo, Perez,* and Leonen, JJ., concur.

THIRD DIVISION

[ G.R. No. 205153, September 09, 2015 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. SUZETTE ARNAIZ A.K.A.

"BABY ROSAL", ACCUSED-APPELLANT.

DECISION
VILLARAMA, JR., J.:

On appeal is the June 25, 2012 Decision[1] of the Court of Appeals (CA) in CA-G.R. CR.-H.C.
No. 04762 affirming the conviction of appellant Suzette Arnaiz a.k.a. "Baby Rosal" for illegal
recruitment in large scale and two counts of estafa.

Facts

In Criminal Case No. 02-199399, appellant Suzette Arnaiz, Ruel P. Garcia and Chita Lorenzo
were charged with the crime of illegal recruitment committed in large scale and by a syndicate.
In Criminal Case No. 02-199404, appellant and her two co-accused were charged with estafa. In
Criminal Case No. 02-199406, appellant and her two co-accused were also charged with estafa.

Appellant pleaded not guilty to the charges against her. Trial on the merits ensued.

Prosecution witness Edenelda Cayetano testified that she learned that appellant was recruiting
workers for Australia. On December 16, 1999, Cayetano gave appellant P30,000 for the
processing of her papers. She gave another P40,000 on January 19, 2000, P30,000 on February 4,
2000, and $500 on March 8, 2000. However, she was not able to leave for Australia. She then
confronted appellant, who tried to refund the amount by issuing a check for P175,000.
Unfortunately, Cayetano was not able to recover her money since the account was already
closed.[2]

Witness Napoleon Bunuan testified that in June 2000, he went to appellant's travel agency,
Florida Travel and Tours located in Manila after learning that it was recruiting factory workers
for South Korea. On June 6, 2000, Bunuan gave appellant P45,000 believing that he will be
deployed soon. On June 19, 2000, he gave appellant another P25,000 for which he was issued a
receipt, even though he had no employment contract. Bunuan again paid P20,000 but this time he
was not given a receipt. After paying a total of P90,000, Bunuan discovered that appellant sent
26 persons to Korea but all were sent back to the Philippines. He went to appellant's office only
to find out that it was already padlocked.[3]

Another witness, Flerminio Cantor, Jr., testified that he went to appellant's office sometime in
May 2000 to apply as a factory worker in Korea. He gave appellant the total amount of P110,000
evidenced by cash vouchers. When he arrived in Korea, he was sent back by the Immigration
Officer after confirming that his visa and passport were fake. Cantor, Jr. reported back to
appellant, who promised that she will change Cantor, Jr.'s name in the passport. He later found
out that appellant was arrested by the National Bureau of Investigation.[4]

During trial, all the complainants identified appellant in open court as Suzette Arnaiz also known
as Baby/Rosita Rosal to whom they gave their money.[5]
The Labor and Employment Officer of the Philippine Overseas Employment Administration
(POEA), Mildred N. Versoza, confirmed that based on the records of their office, appellant and
Florida Travel and Tours were not licensed to recruit workers for deployment abroad.[6]

On the other hand, appellant testified that her office was only a travel agency and they only
processed the issuance of visas in the different embassies in the Philippines. She claimed that
Bunuan went to her office in June 2000 with Julie Landicho, and it was Landicho who recruited
Bunuan and assisted him in getting a visa from their office. Appellant averred that Bunuan went
to their office with Cantor, Jr. who said that his brother in Korea instructed him to get a Korean
visa. Two weeks later, Bunuan and Cantor, Jr. were able to get their visas after paying P65,000,
covering the airfare, consultancy and visa assistance fees. The two were able to leave for Korea
but were held at the airport. Appellant claimed that she was able to refund Bunuan and Cantor,
Jr. the amount of P135,000 each.[7] She asserted that the signature appearing on the voucher was
that of her secretary Suzette Arnaiz who is now residing abroad, and insisted that her name is
Rosita Rosal.[8]

In its Decision,[9] the Regional Trial Court (RTC) found appellant guilty of illegal recruitment in
large scale in Criminal Case No. 02-199399. Appellant was sentenced to life imprisonment and
ordered to pay a fine of P500,000. The RTC also found appellant guilty of estafa in Criminal
Case No. 02-199404 and sentenced her to an indeterminate penalty of 4 years and 2 months
of prision correccional as minimum, to 14 years of reclusion temporal as maximum. She was
ordered to pay the amount of P70,000 as payment for the sums paid by Bunuan. The RTC
likewise found appellant guilty of estafa in Criminal Case No. 02-199406 and sentenced her to
an indeterminate penalty of 4 years and 2 months of prision correccional as minimum, to 15
years of reclusion temporal as maximum. She was ordered to pay Cantor, Jr. the amount of
P100,000.

The RTC held that the prosecution was able to establish that appellant undertook recruitment
activities and promised employment abroad to the complainants without a valid license or
authority to engage in recruitment and placement of workers.

On the estafa charges, the RTC noted the elements of the crime of estafa under Article 315(2)(a)
of the Revised Penal Code, as amended, and held that appellant, by her false pretenses that she
can deploy the complainants for work abroad, was able to induce them to part with their money
which caused them damage. We note, however, that the fallo of the RTC Decision convicted
appellant of two counts of estafa under Article 315(1)(b) of the Revised Penal Code, as
amended.

Appellant appealed to the CA.

The CA denied the appeal and affirmed the conviction of appellant for illegal recruitment in
large scale and two counts of estafa. However, it reduced the penalty of imprisonment imposed
in Criminal Case No. 02-199404 to an indeterminate penalty of 6 months and 1 day of prision
correccional as minimum, to 10 years of prision mayor as maximum. Appellant was also ordered
to refund to Bunuan the reduced amount of P45,000.

In affirming appellant's conviction for illegal recruitment in large scale, the CA cited the
testimonies of the complainants that appellant led them to believe that she had the power to send
them to work in Korea and Australia. They were required to submit their bio-data and passports.
They were also asked to give substantial amounts of money on several occasions for the
processing of their visas and other documents necessary for deployment. Still, they were not able
to leave the country and work abroad. Efforts to have their money refunded also failed, said the
CA.

On the estafa charges, the CA ruled that the elements of estafa under Article 315(2)(a) of
the Revised Penal Code, as amended, were present. The CA again noted the clear and categorical
testimonies of the complainants that they were made to believe that appellant had the authority to
send them to work in Australia and Korea, for which reason they gave her substantial amounts of
money.

Hence, this appeal.

Issue

The essential issue is whether appellant's guilt was proven beyond reasonable doubt.

Our Ruling

We rule in the affirmative. The appeal lacks merit.

Section 6 of Republic Act No. 8042 (RA 8042) defines illegal recruitment as follows:

SEC. 6. Definition. - For purposes of this Act, illegal recruitment shall mean any act of
canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and
includes referring, contract services, promising or advertising for employment abroad, whether
for profit or not, when undertaken by a non-licensee or non-holder of authority contemplated
under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor
Code of the Philippines: Provided, That any such non-licensee or non-holder who, in any
manner, offers or promises for a fee employment abroad to two or more persons shall be deemed
so engaged. It shall likewise include the following acts, whether committed by any person,
whether a non-licensee, non-holder, licensee or holder of authority:

xxxx

(m) Failure to reimburse expenses incurred by the worker in connection with his documentation
and processing for purposes of deployment, in cases where the deployment does not actually take
place without the worker's fault. Illegal recruitment when committed by a syndicate or in large
scale shall be considered an offense involving economic sabotage.

Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or
more persons conspiring or confederating with one another. It is deemed committed in large
scale if committed against three (3) or more persons individually or as a group.

To constitute illegal recruitment in large scale, three elements must concur: (a) the offender has
no valid license or authority required by law to enable him to lawfully engage in recruitment and
placement of workers; (b) the offender undertakes any of the activities within the meaning of
"recruitment and placement" under Article 13(b) of the Labor Code, or any of the prohibited
practices under Article 34 of the said Code (now Section 6 of RA 8042); and (c) the offender
committed the same against three or more persons, individually or as a group.[10]

Article 13(b) of the Labor Code defines recruitment and placement as "any act of canvassing,
enlisting, contracting, transporting, utilizing, hiring or procuring workers; and includes referrals,
contract services, promising or advertising for employment, locally or abroad, whether for profit
or not." In the simplest terms, illegal recruitment is committed by persons who, without authority
from the government, give the impression that they have the power to send workers abroad for
employment purposes.[11]

The elements of illegal recruitment in large scale were proven in this case. One, appellant has no
valid license or authority to engage in recruitment and placement of workers. The Labor and
Employment Officer of the POEA, Mildred N. Versoza, confirmed that based on the records of
their office, appellant and Florida Travel and Tours were not licensed to recruit workers for
deployment abroad. Two, appellant clearly engaged in recruitment activities and promised
employment abroad to the complainants as proven by their testimonies. Three, appellant
committed illegal recruitment against three persons.

Thus, we uphold appellant's conviction for illegal recruitment in large scale. We also agree with
the RTC and CA in imposing the penalty of life imprisonment and ordering appellant to pay a
fine of P500,000 for being in conformity with Section 7[12] of RA 8042.

Appellant insists on the veracity of her own testimony in claiming that the prosecution failed to
prove that she is guilty of illegal recruitment in large scale. Her testimony, however, was rejected
by the RTC which found the testimonies of the complainants credible and truthful.[13] Settled is
the rule that the findings and conclusion of the trial court on the credibility of witnesses are
entitled to great respect because the trial courts have the advantage of observing the demeanor of
witnesses as they testify.[14] The CA likewise believed the complainants' testimonies and found
them to be clear and categorical.[15] The determination by the trial court of the credibility of
witnesses, when affirmed by the appellate court, as in this case, is accorded full weight and credit
as well as great respect, if not conclusive effect.[16]

We also agree with the CA that appellant is guilty of two counts of estafa under Article 315(2)(a)
of the Revised Penal Code, as amended. It is settled that a person may be charged and convicted
separately of illegal recruitment under RA 8042, in relation to the Labor Code, and estafa under
Article 315(2)(a) of the Revised Penal Code.[17]Article 315(2)(a) of the Revised Penal Code, as
amended, defines estafa as:

ART. 315. Swindling (estafa). - Any person who shall defraud another by any of the means
mentioned hereinbelow x x x:

xxxx

2. By means of any of the following false pretenses or fraudulent acts executed prior to or
simultaneously with the commission of the fraud:

(a) By using a fictitious name, or falsely pretending to possess power, influence, qualifications,
property, credit, agency, business or imaginary transactions; or by means of other similar deceits.

The elements of estafa are: (a) that the accused defrauded another by abuse of confidence or by
means of deceit, and (b) that damage or prejudice capable of pecuniary estimation is caused to
the offended party or third person.[18]These elements were proven in this case. By means of
deceit, appellant made complainants believe that she had the proper authority to send them to
work in Australia and Korea, for which reason they gave her substantial amounts of money.
Appellant clearly misled the complainants who believed she had the power to send them to work
in Australia and Korea. They were required to submit their bio-data and passports, and were
asked to give substantial amounts of money for the processing of their visas and other documents
necessary for deployment. Efforts to recover their money after they were not deployed for the
promised work abroad failed resulting to monetary damages on their part.

The penalty for estafa depends on the amount defrauded. Per Article 315 of the Revised Penal
Code:

ART. 315. Swindling (estafa). - Any person who shall defraud another by any of the means
mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum
period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos; and if
such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in
its maximum period, adding one year for each additional 10,000 pesos; but the total penalty
which may be imposed shall not exceed twenty years. In such cases, and in connection with the
accessory penalties which may be imposed and for the purpose of the other provisions of this
Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.

The prescribed penalty for estafa under Article 315 of the Revised Penal Code, when the amount
of fraud is over P12,000 but not exceeding P22,000, is prision correccional maximum to prision
mayor minimum (i.e., from 4 years, 2 months, and 1 day to 8 years). Under the Indeterminate
Sentence Law, the minimum term shall be within the range of the penalty next lower to that
prescribed by the Revised Penal Code, or anywhere within prision correccionalminimum and
medium (i.e., from 6 months and 1 day to 4 years and 2 months).[19]

The maximum term under the Indeterminate Sentence Law shall be that which, in view of
attending circumstances, could be properly imposed under the rules of the Revised Penal Code.
To compute the minimum, medium, and maximum periods of the prescribed penalty
for estafa when the amount of fraud exceeds P12,000, the time included in prision
correccional maximum to prision mayor minimum shall be divided into three equal portions,
with each portion forming a period. Following this computation, the minimum period for prision
correccional maximum to prision mayor minimum is from 4 years, 2 months and 1 day to 5
years, 5 months and 10 days; the medium period is from 5 years, 5 months and 11 days to 6
years, 8 months and 20 days; and the maximum period is from 6 years, 8 months and 21 days to
8 years. Any incremental penalty (i.e., one year for every P10,000 in excess of P22,000) shall
thus be added to anywhere from 6 years, 8 months and 21 days to 8 years, at the discretion of the
court, provided that the total penalty does not exceed 20 years.[20]

Based on the foregoing discussion, the RTC and the CA correctly sentenced appellant to suffer
an indeterminate penalty of 4 years and 2 months of prision correccional as minimum to 15
years of reclusion temporal as maximum in Criminal Case No. 02-199406. The CA was also
correct in imposing an indeterminate penalty of 6 months and 1 day of prision correccional as
minimum to 10 years of prision mayor as maximum in Criminal Case No. 02-199404.

Interest at the rate of 6% per annum shall also be paid by appellant to Bunuan and Cantor, Jr.
from the time the Informations (February 8, 2002) were filed until the amounts paid by them are
fully paid.[21]

WHEREFORE, we DISMISS the appeal. We AFFIRM with MODIFICATIONS the Decision

dated June 25, 2012 of the Court of Appeals in CA-G.R. CR.-H.C. No. 04762 to read as follows:
In Criminal Case No. 02-199399, appellant Suzette Arnaiz a.k.a. "Baby Rosal" is found guilty
beyond reasonable doubt of the crime of illegal recruitment in large scale and is hereby
sentenced to suffer the penalty of life imprisonment and to pay a fine of P500,000.

In Criminal Case No. 02-199404, appellant Suzette Arnaiz a.k.a. "Baby Rosal" is found guilty
beyond reasonable doubt of the crime of estafa under Article 315(2)(a) of the Revised Penal
Code, as amended, and is hereby sentenced to suffer an indeterminate penalty of 6 months and 1
day of prision correccional as minimum to 10 years of prision mayor as maximum. Appellant is
further ordered to indemnify Napoleon R. Bunuan in the amount of P45,000 as actual damages,
with legal interest of 6% per annum computed from the filing of the Information, i.e., February
8, 2002, until the amount is fully paid.

In Criminal Case No. 02-199406, appellant Suzette Arnaiz a.k.a. "Baby Rosal" is found guilty
beyond reasonable doubt of the crime of estafa under Article 315(2)(a) of the Revised Penal
Code, as amended, and is hereby sentenced to suffer an indeterminate penalty of 4 years and 2
months of prision correccional as minimum to 15 years of reclusion temporal as maximum.
Appellant is further ordered to indemnify Herminio Cantor, Jr. in the amount of P100,000 as
actual damages, with legal interest of 6% per annum computed from the filing of the
Information, i.e., February 8, 2002, until the amount is fully paid.

With costs against the appellant.

SO ORDERED.

Velasco, Jr., (Chairperson), Peralta, Perez,* and Leonen,** JJ., concur.

THIRD DIVISION

[ G.R. No. 198309, September 07, 2015 ]

THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ANDY REGASPI,

ACCUSED-APPELLANT.

DECISION
PERALTA, J.:

The instant case seeks to review the Court of Appeals (CA) Decision[1] dated September 23, 2010
in CA-G.R. CR-HC No. 03116. The CA affirmed the Decision[2] of the Regional Trial Court
(RTC) of Pili, Camarines Sur, Branch 32, dated November 28, 2007 in Criminal Case No. P-
2950, finding accused-appellant Andy Regaspi guilty beyond reasonable doubt of the crime of
rape.

In an Information dated March 20, 2000, the prosecution charged Regaspi of raping AAA,[3] to
wit:

That on or about January 12, 2000 at around 8:00 o'clock in the morning at Barangay Sagrada,
Municipality of Pili, Province of Camarines Sur, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, by means of force and intimidation, did then and
there willfully, unlawfully and feloniously had sexual intercourse with [AAA], a 19-year-old
girl, against her will, to her damage and prejudice.

ACTS CONTRARY TO LAW.[4]

When arraigned, Regaspi pleaded not guilty to the crime charged. Trial thereafter ensued where
the facts were narrated as follows:

AAA recalled that on the evening of January 11, 2000, she and her friends attended a dance party
in their barangay. Upon arrival, they stayed outside the dance hall and had a drink inside a
tricycle. After consuming a bottle of beer, her friends proceeded to the dance floor, but AAA
decided to stay because her feet were already aching.

Suddenly, Regaspi approached AAA and pointed a knife at her. AAA noticed that Regaspi also
dropped a tablet into the glass of beer that he was holding. He then ordered AAA to take said
glass and drink the beer. Out of fear, she did as she was told, after which, AAA lost
consciousness.

When she woke up the following day, AAA found herself inside a nipa hut in the middle of a
rice field. She was naked and Regaspi was on top of her, forcing her to have sexual intercourse
with him. She tried to resist Regaspi, but the latter still prevailed. After around two (2) hours, he
finally left AAA, bleeding and in extreme pain.

Later that same day, AAA went to a physician to have herself examined. Dr. Ma. Rizalina Adalid
found the presence of the following:
(+) lacerated wound, superficial 2 cms., posterior fourchette
(+) hymenal lacerations at 2 o'clock position with hyperemia
(+) blood-streaked vaginal discharge, minimal[5]

On the other hand, Regaspi vehemently denied the accusations against him. He claimed that it
was actually AAA who offered him a drink and asked him to dance. Later, AAA left him. That
was the last time Regaspi saw her that night. The next day, he saw AAA sleeping at the chapel
near the dance hall. He woke her up but AAA simply smiled at him and went home.

On November 28, 2007, the RTC of Pill, Camarines Sur convicted Regaspi of the crime of rape.
The dispositive portion of said Decision states:

Wherefore, judgment is hereby rendered, finding the accused Andy Regaspi, guilty beyond
reasonable doubt of the crime of Rape, defined and penalized under Art. 266-A and Art. 266-B
and accordingly sentences him to suffer the penalty of Reclusion Perpetua, with all the
accessories of the penalty, to indemnify the offended party, AAA,[6] the sum of P50,000.00 as
indemnity, the sum of P50,000.00 as moral damages, and to pay the costs. [T]he accused is
credited in full for his preventive detention had he agreed in writing to abide by the rules for
convicted prisoners, otherwise, for 4/5 of the same.

SO ORDERED.[7]

Hence, Regaspi appealed before the CA. On September 23, 2010, the CA affirmed the trial
court's conviction of Regaspi, thus:

FOR THESE REASONS, the appeal is DENIED. The November 28, 2007 Decision of the
Regional Trial Court finding accused-appellant ANDY REGASPI guilty of rape is AFFIRMED.

SO ORDERED.[8]

Regaspi now brings the case before the Court, insisting that the courts be ow gravely erred in
finding him guilty of the crime of rape despite the prosecution's failure to establish his guilt
beyond reasonable doubt.[9]

There is no justifiable reason to depart from the ruling of the lower courts.

When it comes to credibility, the trial court's assessment deserves great weight, and is even
conclusive and binding, unless the same is tainted with arbitrariness or oversight of some fact or
circumstance of weight and influence. Since it had the full opportunity to observe directly the
deportment and the manner of testifying of the witnesses before it, the trial court is in a better
position than the appellate court to properly evaluate testimonial evidence.[10] The rule finds an
even more stringent application where the CA sustained said findings, as in this case.[11]
In light of the positive identification by AAA, whose narration of the incident was found credible
by both the RTC and the CA, Regaspi's proffered defense of denial fails.[12] Regaspi's denial
could not prevail over AAA's direct, positive, and categorical assertion. For Regaspi's alibi to be
credible and given due weight, he must show that it was physically impossible for him to have
been at the scene of the crime at the time of its commission. The Court has consistently held that
denial is an intrinsically weak defense which must be supported by strong evidence of non-
culpability to merit credibility. No jurisprudence in criminal law is more settled than that alibi is
the weakest of all defenses, for it is easy to contrive and difficult to disprove, and for which
reason, it is generally rejected. For the alibi to prosper, the accused must establish the following:
(1) he was not at the locus delicti at the time the offense was committed; and (2) it was
physically impossible for him to be at the scene at the time of its commission. These,
unfortunately, Regaspi failed to prove. Further, and more importantly, Regaspi's allegations
remain uncorroborated.[13]

Regaspi likewise claims that it is unbelievable that he would attack AAA in a public place. Rape
cases, however, are not always committed in seclusion. It is settled that lust is no respecter of
time or place, and rape defies constraints of time and space.[14] He also points out that AAA did
not seem to have offered any resistance during the supposed ordeal. For two (2) hours, there was
no indication that she tried to punch, bite or scratch the accused. She never shouted or cried for
help. But the lack of resistance on the part of the complainant is not inconsistent with a claim of
rape. Lack of resistance does not automatically mean that the complainant consented to the
sexual act, especially when the accused had intimidated said person into submission.[15] Here,
AAA was not only intimidated but likewise rendered unconscious. True, there was no test
conducted to determine that AAA was indeed drugged, but this is of little relevance as the same
is not an indispensable element in a prosecution for rape. It is sufficient that the prosecution was
able to prove that AAA had been sedated by Regaspi at the time the latter had carnal knowledge
of her.[16]

With regard to the penalty, the courts below were correct in imposing reclusion perpetua under
Article 266-B of the RPC. The award of P50,000.00 for civil indemnity and P50,000.00 as moral
damages is likewise appropriate, in accordance with recent jurisprudence.[17] However, the Court
deems it proper to further order the payment of exemplary damages in the amount of P30,000.00,
to serve as a deterrent against the commission of the same or similar bestial act.

WHEREFORE, the petition is DISMISSED. The Decision of the Court of Appeals, dated
September 23, 2010, in CA-G.R. CR-HC No. 03116, affirming the Decision of the Regional
Trial Court of Pili, Camarines Sur, Branch 32, dated November 28, 2007 in Criminal Case No.
P-2950, which held accused-appellant Andy Regaspi guilty beyond reasonable doubt of the
crime of rape, is hereby AFFIRMED with MODIFICATION as to the amount of his civil
liability. He is ORDERED to PAY an additional amount of P30,000.00 by way of exemplary
damages.

SO ORDERED.

Velasco, Jr., (Chairperson), Villarama, JR., Perez,* and Jardeleza, JJ., concur.

SECOND DIVISION

[ G.R. No. 211160, September 02, 2015 ]

PEOPLE OF THE PHILIPPINES, APPELLEE, VS. REGGIE VILLARIEZ ALIAS "TOTI,"

APPELLANT.

DECISION

CARPIO, J.:

The Case

Before the Court is an appeal assailing the Decision[1] dated 20 November 2012 of the Court of
Appeals (CA) in CA-G.R. CR No. 00882. The CA affirmed with modification the
Decision[2] dated 22 August 2007 of the Regional Trial Court (RTC) of Roxas City, Branch 17,
in Criminal Case No. C-4770. The CA convicted appellant Reggie Villariez alias "Toti"
(Villariez) of the crime of murder qualified by treachery and sentenced him to suffer the penalty
of reclusion perpetua.

The Facts

On 22 September 1995, Villariez, together with his two brothers, Amado Villariez (Amado) and
Tomas Villariez (Tomas), was charged in an Information for murder, defined and penalized
under Article 248[3] of the Revised Penal Code. The Information states:

That on July 3, 1995, at around 3:30 o'clock in the afternoon at the compound of the Catholic
Cemetery in Brgy. Casanayan, Pilar, Capiz, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, all armed with guns of unknown caliber and with
intent to kill, conspiring and confederating with one another, did then and there willfully,
unlawfully and without any warning or provocation shot from behind one ENRIQUE OLIMBA,
thereby inflicting upon the latter a fatal gunshot wound in the body causing the instantaneous
death of said Enrique Olimba.

The crime was committed with the qualifying aggravating circumstances of treachery and known
premeditation.

That because of the death of said ENRIQUE OLIMBA, his heirs are entitled to death indemnity
of P50,000.00 plus other damages in consonance with the provisions of the New Civil Code of
the Philippines.

CONTRARY TO LAW.[4]

On 20 July 1995, warrants of arrest were issued against the three accused brothers - Villariez,
Amado, and Tomas. Amado and Tomas surrendered and posted bail. On 26 August 1995,
Amado was shot dead and the case against him was dismissed. On 17 November 1995, Tomas
was arraigned and pleaded not guilty.

On 29 January 1997, the prosecution filed a Motion to Dismiss Tomas from the case. Perla
Olimba (Perla), the wife of the victim Enrique Olimba (Enrique), executed an Affidavit of
Desistance because of the insufficiency of evidence to prove Tomas' guilt beyond reasonable
doubt. On 30 January 1997, the motion was granted by the RTC.

On 6 October 1999, the RTC ordered the issuance of an alias warrant of arrest against Villariez.
On 14 February 2003, the alias warrant of arrest was returned to the RTC after Villariez was
arrested. On the same day, Villariez was taken into custody by the provincial warden of the
Capiz Rehabilitation Center.

On 5 May 2003, Villariez was arraigned and pleaded not guilty.

On 20 August 2003, at the pre-trial conference, the following facts were admitted by the parties:
(1) the name and identity of Villariez; (2) the name and identity of the victim, Enrique; (3) that
on 3 July 1995, at about 3:30 p.m., a shooting incident occurred in the premises of the Catholic
Cemetery of Barangay Casanayan, Pilar, Capiz, where the victim was present and died as a
result; (4) that Villariez knows Enrique since they are second cousins; (5) that Villariez is a
brother of co-accused Amado and Tomas; and (6) that Villariez was arrested on 14 February
2003.

On 25 March 2004, Villariez posted a personal bail bond and was released from custody.

During the trial, the prosecution presented the following witnesses: (1) Dr. Florentino Bermejo
(Dr. Bermejo), postmortem examiner; (2) Perla; (3) Randy Olimba (Randy), son of the victim;
(4) Ana Olimba (Ana), daughter of the victim; and (5) Antonio Bacto, Chief of Police of Capiz.

Ana testified that on 3 July 1995, she, together with her family -parents Enrique and Perla and
sibling Randy, attended the burial of Perla's uncle in the cemetery of Barangay Casanayan, Pilar,
Capiz. At around 3:30 in the afternoon, while praying the novena before the burial, Ana, who
was on top of a tomb and about eight meters from her father, heard a gun explode. When she
turned to look at her father, she saw him spinning. Ana then shouted to her mother that her father
was shot. Ana ran towards her father and saw Villariez waving a gun, accompanied by his
brothers Amado and Tomas. Ana held her father's head with her dress drenched in blood. She
asked her father the identity of the person who shot him. At the brink of death and with a voice
she could hardly hear, her father uttered the name "Toti." Thereafter, she ran towards the road
and told her mother to bring her father to the hospital. She also saw Villariez and his two
brothers pointing their guns to people who were scampering away. The three then fled on a
motorcycle.

Randy testified that he was two to three meters away from his father prior to the shooting. He
saw Villariez and the latter's two brothers Amado and Tomas position themselves behind his
father's back. Thereafter, he saw Villariez, with a short firearm, shoot his father. When the three
started running away, he rose and followed them. Randy saw Amado ride a motorcycle while
Tomas and Villariez passed by the rice fields. He then saw Villariez waving the short firearm he
was carrying to some tricycle drivers. Afterwards, Randy saw Villariez riding on a motorcycle.

Perla testified that while attending the burial of her uncle, she heard an explosion. She went out
and saw Villariez and his two brothers run away from the place where her husband was lying.
Then she saw Ana cradling the head of her husband who was lying on the ground. Randy
approached Perla and told her that Toti was the one who shot his father. Perla went to the
Barangay Captain to inform him that Villariez shot her husband. Perla then returned to the
cemetery. There, she found her husband already dead. Thereafter, Perla, Ana and Randy brought
Enrique's body to their house and summoned Dr. Bermejo.

Dr. Bermejo, the Rural Health Physician of Pilar, Capiz, performed the postmortem examination
on Enrique's cadaver. Dr. Bermejo testified that the victim's cause of death was severe
hemorrhage, antecedent to a gunshot wound with the entrance of the bullet at the back. He
further testified that both the victim and assailant were possibly standing when the incident
happened.

The defense, on the other hand, presented (1) Villariez; (2) Tomas; and (3) Reynaldo Jalbuna
(Jalbuna), Villariez's friend and co-worker.

Villariez testified that he was at the Casanayan Cemetery attending the burial of his uncle at
around 3:30 in the afternoon of 3 July 1995. He was with Jalbuna, his friend for more than 10
years. His elder brother Tomas was also present and was standing about 20-30 meters ahead of
them. Around 200 people attended the burial and while they were praying, he heard a sudden
outburst and saw a person fall down. The person was later identified as Enrique, the husband of
his second cousin Perla. Everyone scurried away to different directions. Together with Jalbuna,
Villariez then proceeded to Balasan, Iloilo.

Jalbuna testified that he was Villariez's co-worker and at the time of the incident they were
employed by Vice Mayor Samson Vedro of Balasan, Iloilo. Jalbuna corroborated Villariez's
testimony and stated that he was with Villariez in the afternoon of 3 July 1995 attending the
funeral of Villariez's relative. They saw Tomas at the funeral but Tomas did not see them. When
the shooting incident occurred, Jalbuna saw people running away. They followed everyone else
and left the cemetery. They then headed back to work in Balasan, Iloilo.

Tomas testified that he, together with his brother Amado, attended the burial of his uncle on 3
July 1995. He did not see his brother Villariez during the burial. Tomas stated that he was about
10 meters away when he saw the man who shot Enrique but he did not recognize the lone
gunman. He further said that Perla could not have seen the shooting incident since her husband
was way behind her and that their two children, Randy and Ana, were not present during the
burial.

In its Decision dated 22 August 2007, the RTC found Villariez guilty beyond reasonable doubt
of the crime of homicide. The RTC found that the seething righteous indignation of the
prosecution's witnesses against Villariez could have arisen only from their unadulterated
knowledge of the identity of their kin's assailant. The RTC also gave weight to the positive
identification of Villariez by Randy and found no reason to disregard the testimony of Ana on
her father's dying declaration that it was "Toti" who shot him. The RTC, however, found that the
prosecution failed to establish the existence of the qualifying circumstances of treachery and
taking advantage of strength. Thus, it held Villariez liable for the crime of homicide, punishable
by reclusion temporal. The dispositive portion of the decision states:

WHEREFORE, premises considered, the Court finds the accused guilty beyond reasonable doubt
of the crime of homicide, and he is hereby sentenced to suffer the indeterminate prison term of 6
years and 1 day of Prision Mayor, as minimum, to 12 years and 1 day of Reclusion Temporal, as
maximum, and to pay the heirs of the victim of the amount of P70,000.00 as civil indemnity,
P100,000.00 as moral damages and P50,000.00 as funeral and wake expenses, and pay the costs.

SO ORDERED.[5]

On 20 September 2007, Villariez filed an appeal with the CA. Villariez raised the following
errors of the RTC:

I
THE COURT A QUO GRAVELY ERRED IN DRAWING FACTUAL CONCLUSIONS
FROM THE NEBULOUS AND DOUBTFUL TESTIMONIES OF PERLA OLIMBA, RANDY
OLIMBA AND ANA OLIMBA, WIDOW, SON AND DAUGHTER, RESPECTIVELY OF
THE DECEASED, THAT IT WAS THE ACCUSED-APPELLANT WHO SHOT THE
LATTER;

II

THE COURT A QUO GRAVELY ERRED IN APPRECIATING THE ALLEGED

STATEMENT OF THE DECEASED TO HER DAUGHTER, ANA OLIMBA, AFTER THE
SUBJECT SHOOTING INCIDENT AS A DYING DECLARATION; AND

III

THE COURT A QUO GRAVELY ERRED IN NOT ACQUITTING THE ACCUSED-

APPELLANT FOR THE FAILURE OF THE PROSECUTION WITNESSES TO IDENTIFY
HIM BEYOND REASONABLE DOUBT AS THE PERSON WHO SHOT TO DEATH THE
DECEASED.[6]

The Ruling of the CA

In its Decision dated 20 November 2012, the CA affirmed with modification the decision of the
RTC. The CA found that Randy's testimony leaves no doubt that Villariez committed the crime.
Randy's eyewitness account was amply supported by the postmortem examination which
revealed that the entrance wound, located at Enrique's back, caused his father's death. The CA
also stated that the close relationship of the Olimbas' with Villariez, being Perla's second cousin,
assured the certainty of the identification of Enrique's killer. The CA found the Olimbas'
testimonies deserving of full faith and credit absent any ill motive on their part to testify against
Villariez. Further, the positive identification of Randy was fully supported by the dying
declaration of his father pointing to Villariez as the person who shot him. The CA also
appreciated the qualifying circumstance of treachery since the shooting was swift, sudden and
unforeseen which placed Villariez at a position which afforded him no risk arising from a
defense which the victim might have made.

The dispositive portion of the decision states:

WHEREFORE, premises considered, the Appeal is DENIED. The Decision dated August 22,
2007 of the Regional Trial Court (RTC), Branch 17, Roxas City in Criminal Case No. C-4770, is
hereby AFFIRMED with MODIFICATION that the accused-appellant Reggie Villariez alias
"Toti" is hereby found guilty beyond reasonable doubt of "Murder" qualified by treachery
defined and penalized by Article 248 of the Revised Penal Code and is hereby meted the penalty
of "RECLUSION PERPETUA."

He is further ordered to pay the heirs of Enrique Olimba, Seventy Five Thousand Pesos
(P75,000.00) as civil indemnity, Seventy Five Thousand Pesos (P75,000.00) as moral damages,
Thirty Thousand [Pesos] (P30,000.00) as exemplary damages, and Twenty Five Thousand Pesos
(P25,000.00) as temperate damages. Finally, interest on all these damages assessed at the legal
rate of 6% from date of finality of this Decision until fully paid is imposed.

SO ORDERED.[7]

The Issues

Villariez now comes before the Court assailing the decisions of the RTC and CA for (1) failure
of the prosecution to amend the Information charging that he committed the crime alone and not
in conspiracy with his conspirators-brothers; and (2) giving credence to the dying declaration
made by Enrique which should be held inadmissible.

The Ruling of the Court

The appeal lacks merit.

We agree with the RTC and CA in ruling that the prosecution fully established Villariez's guilt
for killing Enrique. Both the RTC and CA gave full faith and credence to the testimonies of the
prosecution witnesses. Randy gave a frank and categorical eyewitness account that Villariez was
the one who shot his father. Randy's account was corroborated by Dr. Bermejo's postmortem
examination which revealed that the victim's cause of death was a gunshot wound to the back.
Also, no ill motive was imputed to the prosecution witnesses to falsely accuse and testify against
Villariez. The assertion of the accused that the witnesses were biased since they were related to
the victim deserves scant consideration. Mere relationship of a witness to the victim does not
impair the witness' credibility. On the contrary, a witness' relationship to a victim of a crime
would even make his or her testimony more credible, as it would be unnatural for a relative who
is interested in vindicating the crime, to accuse somebody other than the real culprit.[8] Further,
Villariez's defense of denial failed to cast doubt on the positive identification made by the
prosecution witnesses and this defense, being inherently weak, cannot prevail over such positive
identification of the accused as the perpetrator of the crime.

Villariez insists that since the prosecution failed to amend the Information charging that he
committed the crime alone, and not in conspiracy with his brothers, then the prosecution violated
his constitutional right to due process for not informing him of the true nature, cause and
circumstance of the commission of the crime for which he was tried and convicted.

We disagree.

In the present case, the Information charged Villariez, together with his brothers, of inflicting
upon Enrique a fatal gunshot wound in the body causing the latter's instantaneous death.

The commission of the specific acts charged against Villariez constitutes the offense charged in
the Information. The prosecution's failure to establish conspiracy due to the death of a co-
conspirator and the dismissal of the case against another co-conspirator does not defeat the
conviction of the accused for the offense charged and proven during the trial.

In US v. Vitug,[9] the Information charged that the accused committed the specific acts therein
attributed to him, and that he committed those acts in conspiracy with his co-accused. We ruled
that the commission of the specific acts charged against the accused constituted the offense
charged, and the failure to establish the conspiracy in no way prevented conviction of the
accused for the offense charged and proven.

Villariez's allegation that the dying declaration made by the victim should be held inadmissible
deserves scant consideration. We agree with the finding of the CA that all the requisites
necessary to admit Enrique's dying declaration to his own daughter Ana were all present. The
relevant portions state:

Statements identifying the assailant, if uttered by a victim on the verge of death, are entitled to
the highest degree of credence and respect. Persons aware of an impending death have been
known to be genuinely truthful in their words and extremely scrupulous in their accusations. The
dying declaration is given credence on the premise that no one who knows of one's impending
death will make a careless and false accusation. Hence, not infrequently, pronouncements of
guilt have been allowed to rest solely on the dying declaration of the deceased victim.

For a dying declaration to be admissible in evidence, the following requisites must concur: (1)
the dying declaration must concern the cause and surrounding circumstances of the declarant's
death; (2) at the time of making his declaration, the declarant was under a consciousness of
impending death; (3) the declarant must have been competent to testify as a witness; and (4) the
declaration was offered in a criminal case for homicide, murder or parricide in which the
declarant was the victim.

These requisites are all present in the case at bar.

First. Enrique's utterance pertains to the identity of the one who shot him.

Second. Contrary to the allegation of accused-appellant, it was established that the declarant
Enrique, was under a consciousness of his impending death. In the case at bench, although he
made no express statement showing that he was conscious of his impending death, it was clear
however, considering the fatal quality of his injury and that he was barely heard by Ana when he
uttered accused-appellant's name, that his death was imminent, x x x.

Third. Declarant Enrique would have been competent to testify had he survived.

Last. His dying declaration is offered in a criminal prosecution for murder where he was the
victim.[10]

Further, we agree with the CA in appreciating treachery as a qualifying circumstance. The

essence of treachery is the sudden and unexpected attack on an unsuspecting victim, depriving
the victim of any chance to defend himself. Here, Randy witnessed that it was Villariez who shot
his father at the back. Enrique, deep in thought while listening to the burial service, was
unprepared and had no means to put up a defense. Enrique was shot unexpectedly which insured
the commission of the crime without risk to Villariez. This treacherous act qualified the killing to
murder.

In sum, we find no cogent reason to depart from the decision of the CA. Villariez is guilty
beyond reasonable doubt of the crime of murder and is sentenced to suffer the penalty
of reclusion perpetua. As for damages, the CA, in conformity with recent jurisprudence,"
properly awarded these amounts: (1) P75,000 as civil indemnity; (2) P75,000 as moral damages;
(3) P30,000 as exemplary damages; and (4) P25,000 as temperate damages. Moreover, the
amounts of damages awarded are subject to interest at the legal rate of 6% per annum from the
date of finality of this Decision until fully paid.

WHEREFORE, we DISMISS the appeal. We AFFIRM the

Decision dated 20 November 2012 of the Court of Appeals in CA-G.R. CR No. 00882.

SO ORDERED.
Brion, Del Castillo, Mendoza, and Leonen, JJ., concur.

THIRD DIVISION

[ G.R. No. 217804, September 02, 2015 ]

ROLDAN CARRERA, PETITIONER, VS. THE PEOPLE OF PHILIPPINES, RESPONDENT.

DECISION

VELASCO JR., J.:

This petition for review on certiorari under Rule 45 of the Rules of Court assails and seeks to set
aside the Decision[1] and Resolution[2] dated July 17, 2014 and March 4, 2015, respectively, of
the Court of Appeals (CA) in CA-G.R. CR No. 01839 which affirmed with modification the
August 5, 2011 Decision[3] of the Regional Trial Court (RTC) of Barotac Viejo, Iloilo, Branch
66, adjudging Roldan Carrera (Carrera) guilty beyond reasonable doubt of the crime of rape by
sexual assault under Article 266-A (2) of the Revised Penal Code (RPC) and penalized under
Article 266-B thereof.

Pursuant to Republic Act (R.A.) No. 7610 and in line with our ruling in People v.
Cabalquinto,[4] the real name of the victim, as well as any information which tends to establish or
compromise her identity shall be withheld. The initials AAA shall be used instead to identify her.

The Facts

In an Information dated August 26, 2004 filed with the RTC of Barotac Viejo, Iloilo, Carrera
was charged with rape allegedly committed as follows:

That on or about June 13, 2004 in the Municipality of Barotac Viejo, Province of Iloilo,
Philippines and within the jurisdiction of this Honorable Court, the above-named [accused], by
means of force, threat or intimidation, with lewd design, did then and there wilfully, unlawfully
and feloniously commit an act of sexual assault on the victim [AAA] by inserting his finger on
her vagina against her will and consent.

CONTRARY TO LAW.[5]

Docketed in the RTC as Crim. Case No. 2004-2699, the Information was eventually raffled to
Branch 66 thereof.

When arraigned, Carrera entered a plea of not guilty.

In the ensuing trial, the prosecution, to buttress its case against Carrera, as accused, presented as
evidence the testimonies of AAA, her mother, Dr. Aimee Icamina (Dr. Icamina) and PO2 Rubie
Hubo.

The People's version of the incident, as narrated in the decision now on appeal, may be
summarized as follows:

It happened at around 7:00 o'clock on a rainy evening of June 13, 2004. At about that time, AAA
was walking on her way home from a tailor shop in poblacion Barotac Viejo. Some ten (10)
meters away from her house, a man who AAA recognized to be Carrera suddenly emerged from
a dark portion of the street and waylaid AAA. Obviously taken aback by Carrera's sudden
appearance, AAA then asked the latter if there was any problem, followed by an invitation to
have supper at her house. AAA knew Carrera in person as he had done carpentry work when
their house was being constructed.[6]

Carrera reacted by uttering the following ominous lines: "hipos karon, patyon ta" (Quiet! Or else
I will kill you), after which he grabbed AAA's arm and dragged her toward a nearby church.
Upon reaching the left side of the church structure, Carrera pushed AAA to the ground, then
immediately pinned her down by placing his knees on top of her back and holding her left arm.
Carrera then pulled down AAA's garterized shorts and panty with his free hand while she was
pinned down[7] and then inserted a finger into her vagina against her will. While doing this,
Carrera also kissed AAA along her ears and her face. AAA struggled, only to be overpowered by
the stronger Carrera. She tried kicking and and boxing him, but her position on the ground
proved to be an obstacle. She shouted for help, but the heavy downpour drowned her voice.[8]

AAA would continue struggling and crawling until her attacker loosened his hold on her arm,
enabling AAA to move both her hands and to break free. Upon this chance, AAA ran toward
their house half naked. The sight of AAA when she reached home without any underwear, with
blood on her legs and mud all over her body impelled the shocked mother to immediately repair
to the nearby police station to report the incident.[9]

AAA submitted herself for medical examination the following day. E)r. Icamina, the examining
physician, found fresh and complete hymenal laceration in AAA's external genitalia and so
indicated her findings in the Medico-Legal Certificate, as follows:

"Physical Findings:

External Genitalia
(+) fresh complete hymenal lacerations at 3 & 7 o'clock position;
(+) fresh laceration fourchette.
Impression: Disclosure of sexual abuse. Medical evaluation shows definite evidence of abuse or
sexual contact."[10]

For its part, the defense offered the testimonies of Carrera himself cjnd the corroborating
testimonies of a sister-in-law, a friend and one other.

The CA decision likewise summarizes the version of the defense, mainly centered on alibi and
denial.[11]

Carrera declared on the stand where he was on the date and hour in question. According to him,
he was at Brgy. Sto. Tomas, Barotac Viejo, Iloilo, his place of residence, at the time the
supposed crime was committed. He narrated that on June 13, 2004, he went to Dumarao, Capiz
to attend the burial of a relative, after which event he boarded a bus at around 3:00 p.m. for his
return trip. He arrived at Barotac Viejo Terminal at around 5:00 p.m. and from there, he boarded
a tricycle driven by Jovan Cartagena, who drove Carrera to his home barangay. At Brgy. Sto.
Tomas, Carrera stopped by a store to join a group of drinking friends. After the drinking spree,
Carrera, together with a friend, Ananias Balleras, went home by foot. Nancy Vistal, a sister-in-
law, saw him reaching home. He took his dinner and thereafter went to sleep at about 7:30 p.m.
While in deep slumber, he was suddenly awakened by the police. Upon being informed by the
police about a complaint against him, Carrera was brought to and detained at the police station of
Barotac Vie jo, where, to his surprise, his brother, Rodeo Carrera, was also being detained, also
as a suspect. His brother would later be released when AAA pointed at Carrera as the
perpetrator.[12]

After trial, the RTC rendered on August 5, 2011 a Decision finding Carrera guilty as charged,
disposing as follows:

"WHEREFORE, the court hereby finds the accused Roldan Carrera guilty beyond reasonable
doubt of the crime of Rape by Sexual Assault defined and penalized under Art. 266-A(2) of the
Revised Penal Code and sentences the said accused to an indeterminate prison term ranging from
four (4) years, two (2) months, and one (1) day of [prision correctional] as minimum to six (6)
years and one (1) day of [prision] mayor as maximum, together with the accessory penalty
provided by law and to pay the costs.

SO ORDERED."[13]

The trial court pronounced AAA's testimony on the rape incident adequate to establish Carrera's
guilt of the felony charged beyond reasonable doubt, overruling in the process the latter's
profferred defense of alibi and denial. Giving short shrift to Carrera's alibi defense, the RTC
stated the observation that it was not physically impossible for Carrerra to be at the scene of the
crime considering that the distance between Brgy. Sto. Tomas and the poblacion was only a
thirty-minute drive by a motorcycle. The court underscored the fact that AAA, who has known
and seen Carrera prior to the incident, was able to positively point to Carrera as the perpetrator.
To the trial court, Carrera's bare denial cannot outweigh AAA's affirmative testimony.

Aggrieved, Carrera appealed to the CA, the recourse docketed as CA-G.R. CR No. 01839. By
Decision dated July 17, 2004, the appellate court affirmed that of the RTC, with modification in
that it further ordered Carrera to pay AAA civil indemnity in the amount of Thirty Thousand
Pesos (P30,000.00), moral damages in the amount, of Thirty Thousand Pesos (P30,000.00), and
exemplary damages in the amount of Thirty Thousand Pesos (P30,000.00), plus legal interest at
the rate of six percent (6%) per annum on all damages awarded from the finality of judgment
until fully paid. The dispositive portion of the CA Decision reads:

WHEREFORE, the instant appeal is DENIED, and the Decision dated August 5, 2011 of the
Regional Trial Court, Branch 66, Barotac Viejo, lloilo, in Criminal Case No. 2004-2699 is
hereby AFFIRMED with MODIFICATIONS insofar as the payment of civil indemnity, moral
damages, and exemplary damages in favor of the private complainant.

Thus, accused-appellant is hereby ORDERED to pay the private complainant Thirty Thousand
Pesos (P30,000.00) as civil indemnity, Thirty Thousand Pesos (P30,000.00) as moral damages,
and Thirty Thousand Pesos (P30,000.00) as exemplary damages. In addition, legal interest at the
rate of six percent (6%) per annum is imposed on all amounts of damages awarded to the private
complainant from the date of finality of this judgment until fully paid.

SO ORDERED.

Carrera moved for reconsideration of the said Decision, but the CA denied the same in a
Resolution dated March 4, 2015.

Hence, Carrera filed this petition and prays for reversal of his conviction, arguing that the lower
courts have erred:

1. x x x in convicting the accused of the crime charged and imposing upon him the civil liability;

2. x x x in convicting the accused of sexual assault by means of force despite that the prosecution
has failed to establish that the element of voluntariness on the part of the victim was absolutely
lacking; and

3. x x x in convicting the accused despite the total absence of physical evidence to corroborate
complainant's claim of use of force against her.[14]
The Issue

Verily, the principal issue at bench is whether or not the prosecution has proven the guilt of
Carrera for the crime charged beyond reasonable doubt, which in turn resolves itself into the
principal question of the credibility of the prosecution's key witness, AAA herself.

Petitioner Carrera would assert at every turn that the prosecution has failed to prove that he
employed force upon AAA in committing the alleged assault, adding in this regard that there is
total absence of physical evidence to corroborate AAA's claim of use of force against her.
According to him, the absence of defensive wounds and lack of proof of resistance of AAA
while the purported assault was taking place show that there was voluntariness on her part.

Pushing the point, petitioner calls attention to the medical certificate adduced as evidence which
was negative of any finding of the presence of contusion, bruises, scratches, hematoma, or any
injury on AAA's arms and the back portion of her upper body.[15] Petitioner would also express
disbelief how AAA's shorts and underwear could have remained intact and undamaged if he
indeed forcibly stripped her of these dress items.[16] Petitioner would also argue, citing the cases
of People v. Lamarroza[17] and People v. Gavina,[18] that he should be acquitted, lacking as here
of any showing of the element of total absence of voluntariness on the part of the party assaulted.
In Gavina , the Court held: "In rape committed by force or intimidation, it is imperative that the
prosecution should establish that voluntariness on the part of the offended party was absolutely
lacking."[19]

The Court's Ruling

The appeal must fail.

It must be pointed out right off that the petitioner would have this Court review the uniform
factual findings of the courts below, an exercise which necessarily entails evaluating the
credence accorded by them on AAA's account of her sordid experience in the hands of petitioner.
It is a hornbook rule, however, that factual determinations of trial courts when substantiated by
evidence on record carry great weight and respect on appeal. It is not the function of this Court in
a petition for review to evaluate evidence all over again,[20] save in exceptional circumstances,
such as where the findings of the trial court and the CA are absurd, contrary to the evidence on
record, impossible, capricious or arbitrary, or based on a misappreciation of facts.[21] The extant
case does not fall under the exceptions to this general rule. It is germane to state, however, that
the Court has assumed an attitude of caution and circumspection in evaluating testimonies in
rape cases, bearing in mind the familiar dictum that an accusation for rape can be made with
facility, albeit difficult to prove, but more difficult for the accused to disprove, though innocent.

Article 266-A of the RPC, as amended by R. A. No. 8353,[22] enumerates the manner by which
rape by sexual assault is committed:

1. By a man who shall have carnal knowledge of a woman under any of the following
circumstances:

a) Through force, threat or intimidation;

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

c) By means of fraudulent machination or grave abuse of authority;

d) When the offended party is under twelve (12) years of age or is demented, even though none
of the circumstances mentioned above be present.

2. By any person who, under any of the circumstances mentioned in paragraph 1 hereof shall
commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice,
or any instrument or object, into the genital or anal orifice of another person.

Clearly then, rape can be committed either through sexual intercourse or by sexual
assault.[23] Rape by sexual assault is committed under any of the circumstances mentioned in
paragraph 1 and through any of the means enumerated under paragraph 2 of Article 266-A. The
gravamen of rape through sexual assault is "the insertion of the penis into another person's mouth
or anal orifice, or any instrument or object, into another person's genital or anal orifice."[24] It is
also called "instrument or object rape" or "gender-free rape."[25]

AAA accuses petitioner Carrera of inserting his finger into her vagina without her consent and
by use of force, the overt act constituting rape by sexual assault within the purview of Article
266-A.

As a matter of settled jurisprudence, when a woman says she has been raped, she says in effect
all that is necessary to show that she has been raped and her testimony alone is sufficient if it
satisfies the exacting standard of edibility and consistency needed to sustain a
conviction."[26] Rape is essentially an offense of secrecy, not generally attempted save in
secluded or dark places. By the distinctive nature of rape cases, their prosecution usually
commences on the word and conviction usually rests solely on the basis of the testimony of the
victim, if credible, natural, convincing, and consistent with human nature and the normal course
of things.[27] Thus, the victim's credibility becomes the primordial consideration in the resolution
of rape cases.[28]

People v. Abat[29] teaches that the evaluation of the credibility of witnesses and their testimonies
is a matter best undertaken by the trial court, owing to its unique opportunity to observe the
witnesses firsthand and to note their demeanor, conduct, and attitude under grilling examination.
In the case at bar, the trial court and later the CA found the victim and her testimony to be
credible. It is well-settled that factual findings of the trial court, its calibration of the testimonies
of the witnesses, and its conclusions anchored on its findings are accorded by the appellate court
high respect, if not conclusive effect, more so when affirmed by the CA.[30]

Contrary to petitioner's posture, there can be no quibbling, as the evidence show, that he
employed force upon AAA who, in turn, put up an incessant fierce struggle during her
nauseating ordeal. The RTC and CA were one in saying that AAA did not voluntarily submit to
the petitioner's lustful desire. The force employed and the sexual abuse committed by the
accused was clearly recounted by AAA in her testimony, thus:

Pros. Con-el:

Q: At that time when you were approaching your house at a distance of about ten (10) meters,
can you tell the court if there was any unusual incident that happened to you?

A: While I was walking with umbrella considering that it was raining, suddenly a man just
surfaced from my side and then went directly in front of me.

Q: What else did that man do to you?

A: When he was right in front of me I was able to identify him immediately and I said "What is
the problem? Come to our house for supper."

Q: What did he answer if he answered anything?

A: He said, "Quite (sic), 1 will kill you".

Q: After that what did he do if he did anything to you?

A: He immediately got hold both my arms and held them very tight and he throw (sic) me at the
other side of the road.

Q: After that what happened?

A: I fell to the ground face down and he immediately placed himself behind me with is (sic)
knees placed on my back then he immediately pulled down my shorts and panty.

Q: Were your panty and shorts totally taken off by the accused? A: Yes, sir.

Q: After that what happened when the accused have already totally taken off your shorts and
panty?

A: He fingered me at the same time kissing me. He kissed me along my ears and the rest of my
face while still in that position.

xxxx

Q: You said that you were fingered and kissed by the said accused. How many times did he do
that to you?

A: I was not able to count because during that time I was struggling and I was trying to free
myself but he was very strong. I was thinking of boxing him or anything that I can do to free
myself.

xxxx

Q: You said that the incident happened in front of the 7lh Day Adventist Church. Can you tell
the Honorable Court if aside from this church there are some other houses around?

A: Yes, sir.

Q: What was the distance of these houses from the scene of the incident.

A: The distance of this church to our house is about ten (10) meters and across this church is the
house of Atty. Veneer which is also about ten (10) meters away.

Q: Did it not occur to your mind to ask for help by shouting to the neighbours around?

A: I did shout to the top of my voice but they cannot hear because the rain was pouring heavily.

Q: In the act of struggling in order to free yourself from the hold of the accused, can you tell the
court if you were able to free yourself from the hold of the accused?

A: Yes, sir I crawled. I really tried to free myself but I really find (sic) it hard because he was on
top of me, but later I was able to free myself.
Court:

Q: How were you able to free yourself for a period of ten (10) minutes?

A: He was kneeling behind me with his left hand holding firmly my left arm and his right hand at
my anus and to my vagina. But later he loosened his hold on my left arm and I continued to
struggle and move both my arms and later I succeeded in freeing myself, Your Honor.[31]

And to be sure, AAA, after mustering the test of credibility and consistency during direct
examination has withstood an intense cross-examination.

Petitioner's pretense that the prosecution failed to establish that he employed force upon AAA in
committing the sexual assault deserves scant consideration. Indeed, AAA testified that the
petitioner had to hold both of her arms and drag her toward the church, where the actual assault
was committed. All the while, she tried to set herself free but was unsuccessful. Surely the mix
of the adverted acts of the petitioner constitute, as aptly observed by the CA, the force
contemplated in the law. The absence of visible bruises, scratches or contusion on the body, if
this be the case, is in context of little moment. External signs of physical injuries on the victim is
not an element of the crime of rape, and their absence, without more, does not necessarily negate
the commission of rape.[32]

Moreover, Carrera's suggestion that AAA voluntarily participated in his libidinous adventure as
shown, so he claims, by her failure to put up resistance to the attack does not inspire
concurrence. AAA in fact recounted her efforts to repel the assault against her honor and how
her cry for help was left unheeded due to the strong downpour at the time of the rape. On this
point, the CA noted, thus:

On the contrary, We found that there is a total absence of voluntariness on the part of AAA. Her
testimony is very categorical when she narrated that while she was pinned down by the appellant
she struggled very hard, she tried to kick or box appellant but she could not overpower him. She
testified that she fell on the ground facing down, and that appellant immediately knelt on her
back to restrain her with his weight and held one of her arms, while appellant's other arm was
used to commit the sexual assault. Her efforts were indeed futile because the appellant
overpowered her, but that does not mean she did not exert any effort to resist.[33]

In any event, the failure to shout or offer tenacious resistance does not make voluntary the
victim's submission to the criminal act of the offender.[34]

While AAA's testimony alone is sufficient to sustain the petitioner's conviction, the prosecution
saw fit to present her mother to testify seeing her daughter, during the fateful night, half-naked,
without any underwear, with mud all over her body and blood covering her legs,[35] indicating
that she has been molested. Of course AAA's allegation of sexual abuse finds collaboration too
from the Medico-Legal Certificate issued by Dr. Icamina, who declared that the fresh and
complete hymenal laceration found in AAA's external genitalia suggests that some object was
inserted in her private part.

All told, there is a total absence of voluntariness on the part of AAA. The conviction of Carrera
for the rape by sexual assault of AAA stands. Nothing in the records would show any
circumstance of substance, like hostility, malice or ill sentiments, and accepted by the courts
below that would becloud the veracity of AAA's narration of every ugly detail of her traumatic
experience.

A final observation. Before the trial court, petitioner had interposed tl e defense of alibi, but
would change tack in the proceedings before this Court to advance the argument that he could
not possibly be convicted of object rape given that AAA contributed in some way to the
realization of an act otherwise punishable as a felony. The abrupt shift in the petitioner's
approach is not lost on the Court.

In accordance with Article 266-B of the RPC, the penalty for the offense of rape by sexual
assault is one degree lower than that imposed for rape by sexual intercourse, or prision mayor.
Applying the Indeterminate Sentence Law, the minimum of the indeterminate penalty shall be
taken from the full range of the penalty next lower in degree than that prescribed by law, which
is prision correccional, and the maximum of which shall come from the proper penalty that
could be imposed under the RPC. Thus, the trial court correctly imposed the penalty of four (4)
years, two (2) months, and one (1) day of prision correccional, as minimum, to six (6) years and
one (1) day of prision mayor, as maximum. The civil liability imposed by the CA is likewise
affirmed, in line with People v. Crisostomo,[36] the prevailing jurisprudential guide on the matter.

WHEREFORE, the petition is DENIED. The Decision dated 17, 2014 and Resolution dated
March 4, 2015 of the Court of Appeals (CA) in CA-G.R. CR No. 01839 are
hereby AFFIRMED in TOTO.

SO ORDERED.

Brion,* Peralta, Villarama, Jr., and Perez,** JJ., concur.

THIRD DIVISION

[ G.R. No. 213913, September 02, 2015 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JULKIPLI
ASAMUDDIN YSALAPUDIN A.K.A."JUL" AND "REY", ACCUSED-APPELLANT.

DECISION

VILLARAMA, JR., J.:

On appeal is the Decision[1] dated May 22, 2014 of the Court of Appeals (CA) in CA-G.R. CR-
H.C. No. 05870, which affirmed with modification the Decision[2] dated October 15, 2012 of the
Regional Trial Comt (RTC) of Mandaluyong City, Branch 212, in the consolidated Criminal
Case Nos. MC08-11421 and MC08-11422.

The consolidated cases for violation of Republic Act (R.A.) No. 6539, the Anti-Carnapping Act
of 1972, as amended, and Qualified Theft were filed on January 16, 2008 against accused
Julkipli Asamuddin y Salapudin (appellant). The accusatory portions of the Informations alleged
as follow:

Criminal Case No. MCOS-11421:

For Violation of R.A. No. 6539

That on or about the 11th day of July 2007, in the City of Mandaluyong, Philippines, a place
within the jurisdiction of this Honorable Court, the above-named accused, with intent to gain,
without the knowledge and consent of the owner thereof, did then and there, willfully,
unlawfully and feloniously take, ste[a]l and carry away a motorcycle, Honda XRM with plate no.
UU-9142 amounting to P49,000.00 belonging to EMELINA GLORIA Y UMAL[I] without the
latter's consent, to the damage and prejudice of the latter in the aforementioned sum
ofP49,000.00.

CONTRARY TO LAW.[3]

Criminal Case No. MCOS-11422:

For Qualified Theft

That on or about the 11th day of July 2007, in the City of Mandaluyong, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, being then employed as a
messenger of E. Gloria's Money Changer owned by Emelina Gloria y Umali, with grave abuse of
confidence and taking advantage of the trust reposed upon him, with intent to gain, without the
knowledge and consent of the owner thereof, did then and there, willfully, unlawfully and
feloniously take, steal and carry away cash money of various denominations P800,000.00, Yen
660,000.00, Pounds 50.00, Dirham 530.00, Brunei Dollar 100.00 and Singapore Dollar 467.00
with an aggregate amount of P1,077,995.00, to the damage and prejudice of the complainant in
the aforementioned amount of P1,077,995.00.
CONTRARY TO LAW.[4]

The criminal cases were temporarily archived, but were revived with the arrest of appellant in
Zamboanga City on February 25, 2009.

Assisted by a counsel de oficio at his arraignment on August 19, 2009, appellant pleaded "Not
Guilty" to both charges.[5]

In the ensuing trial, the prosecution presented Emelina Gloria y Umali (Emelina), proprietor of
E. Gloria Money Changer where appellant works as a messenger; and fmee Gerbon[6] (Imee),
domestic helper of Emelina. Among the documentary evidence presented by the prosecution
were (1) the list of currencies Emelina entrusted to appellant that fateful day of July 11, 2007
(Exhibit "F"[7]); and (2) Sales Invoice Retail No. 16607 (Exhibit "I"[8]), Official Receipt (Exhibit
"J''[9]), and certification (Exhibit "K"[10]), all issued by Triumph JT Marketing Corporation, which
show that the Honda XRM motorcycle with plate number UU-9142 was purchased by Emelina's
husband.

The defense presented appellant as its sole witness. He denied the charges against him.

THE FACTS

Emelina hired appellant as messenger in E. Gloria Money Changer, Mandaluyong City,

sometime in 2006, with the main function of delivering local or foreign currencies to clients or
other money changers.[11] Assigned to appellant to be used in the performance of his work is a
blue Honda XRM motorcycle with plate number UU-9142.[12]

At 12:30 in the afternoon of July 11, 2007, Emelina handed to appellant the cash amount of
P800,000.00, and various foreign denominations consisting of 66 pieces of lapad,[13] 50 pounds,
530 dirhams, 467 Singaporean dollars, and 100 Brunei dollars,[14] with a peso value of
P277,995.00.[15] She instructed appellant to bring the currencies to her friend Rina Rosalial, a
money changer in Mabini, Manila.[16] After receiving the monies from Emelina, appellant left
aboard his service motorcycle on his way to Manila.[17]

Imee, the domestic helper of Emelina, was then inside E. Gloria Money Changer, and saw
Emelina hand to appellant currencies of various denominations,[18] and as appellant left his
service motorcycle.[19]

By 1:30 p.m. of the same day, Emelina received a call from Rina Rosalial informing her that
appellant has yet to arrive in her shop.[20] Emelina's calls to the cellular phones of appellant and
his wife were at naught,[21] prompting her to lodge a complaint against appellant at the Philippine
National Police, Criminal Investigation and Detection Group (PNP-CIDG), Camp Crame.[22]

In August 2007, the blue Honda XRM motorcycle with plate number UU-9142 was found
abandoned in Silang, Cavite, and was returned to Emelina.[23]

Appellant vehemently denied asporting currency totaling P1,077,995.00, and the subject
motorcycle. He admitted working as a Messenger/Runner at the E. Gloria Money Changer
starting October 2006 but he resigned from his job on July 10, 2007. Appellant asserted that the
money he received from Emelina on July 11, 2007 was his last salary for the period July 1 to 10,
2007. His family's return to Zamboanga City on September 7, 2007 was due to the high cost of
living in Metro Manila which he could no longer afford.[24]

Relying on the categorical and straightforward testimony of Emelina, and rejecting the defense
of denial advanced by appellant, the RTC rendered a guilty verdict in both criminal cases, thus:

WHEREFORE, IN VIEW OF THE FOREGOING, the court finds the accused JULKIPILI
ASAMUDDIN Y SALAPUDIN @ ''Jul" and "Rey" GUILTY beyond reasonable doubt of
Violation of Republic Act No. 6539 (Anti-Carnapping Act of 1972)[,] as amended[,] and he is
hereby sentenced to an indeterminate imprisonment of fourteen (14) years and eight (8) months,
as minimum, to seventeen (17) years and four (4) months, as maximum. Likewise[,] the court
finds JULKIPLI ASAMUDDIN Y SALAPUDIN @ "Jul" @ "Rey" GUILTY beyond reasonable
doubt of Qualified Theft and he is hereby sentenced to suffer the penalty of reclusion perpetua
but with all the accessories of the penalty imposed under Article 40 of the Revised Penal Code.
Accused is also condemned to pay the offended party, EMELINA GLORIA Y UMALI[,] the
sum of Php1,877,995.00, as actual damages representing the total amount of the money entrusted
to him by the said offended party.

Further, let a Commitment Order be issued for the transfer of accused JULKlPLI ASAMUDDIN
Y SALAPUDIN @ "Jul" @ "Rey" from Mandaluyong City Jail to the BBureau of Corrections,
Muntinlupa City.

SO ORDERED.[25]

On November 6, 2012, appellant timely tiled his Notice of Appeal.[26] The consolidated cases
were subsequently elevated to the CA, and was docketed as CA-G.R. CR-H.C. No. 05870.
Before the CA, appellant ascribed to the RTC the following errors:

I.
THE COURT A QUO GRAVELY ERRED IN DISREGARDING [APPELLANT'S]
TESTIMONY.

II.

THE COURT A QUO GRAVELY ERRED IN CONVICTING [APPELLANT] OF

QUALIFIED THEFT AND CARNAPPING DESPITE THE PROSECUTION'S FAILURE TO
OVERTHROW THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE IN HIS
FAVOR.[27]

In the Decision dated May 22, 2014, the appellate court dismissed the appeal but modified
appellant's civil liability in Criminal Case No. MC08-11422 by reducing the awarded actual
damages from P1,877,995.00 to P1,077,995.00.[28]The appellate court emphasized that the
amount alleged in the Information for Qualified Theft, and established by Exhibit "F" was only
PI,077,995.00.[29]

Appellant perfected his appeal to this Court with the timely filing of a Notice of Appeal on June
16, 2014.[30] The Solicitor General and appellant separately manifested to adopt their respective
briefs filed before the CA as their supplemental briefs.[31]

The main issue for resolution is whether the CA correctly affirmed the conviction of the
appellant for Qualified Theft and Carnapping.

The Court rules in the affirmative and finds the appeal without merit.

Appellant primarily assails the testimony of Emelina to be inadequate to anchor his conviction
for the crimes charged. Branding Emelina's testimony to be self-serving, unsubstantiated, and
uncorroborated by documentary and credible testimonial evidence, appellant asserted that no
credible proof was presented by the prosecution to establish that he actually received from
Emelina the subject peso and foreign currencies and that he used and unlawfully took away the
service motorcycle.

When the credibility of the witness is in issue, the settled rule is that the trial court's assessment
thereof is accorded great weight by appellate courts absent any showing that the trial court
overlooked certain matters which, if taken into consideration, would have materially affected the
outcome of the case.[32] And where the trial court's findings have been affirmed by the CA, these
are generally binding and conclusive upon this Court.[33] The determination of the credibility of
witnesses is best left to the trial court judge because of his untrammeled opportunity to observe
directly the demeanor of a witness on the stand and, thus, to determine whether he or she is
telling the truth.[34] After a circumspect scrutiny of the records of the case, we find no reason to
modify, alter or reverse the factual finding of the lower court and affirmed by the CA that in the
afternoon of July 11, 2007, appellant received money from Emelina; used his service
motorcycle; and disappeared with the money and the motorcycle.

Moreover, appellant failed to establish the alleged ill-motive of Emelina in implicating him in
the present case. No evidence was presented to show that the business of Emelina incurred losses
that needed to be concealed from her business partners. Absent any improper motive to falsely
testify against the appellant, Emelina's declarations are worthy of full faith and credence.[35] In
like manner, Imee's employment as the domestic servant of Emelina is not a ground to disregard
her testimony. Relationship alone is not enough reason to discredit and label Imee's testimony as
biased and unworthy of credence. It is settled that the witness' relationship to the victim does not
automatically affect the veracity of his or her testimony.[36]

We now resolve the criminal liability of the appellant for the unlawful taking of the service
motorcycle, and the peso and foreign currencies amounting to a total of P1,077,995.00.

I. Criminal Case No. MCOS-11421 (For Violation of R.A. No. 6539)

The elements of Carnapping as defined under Section 2 of R.A. No. 6539, as amended, are:

(1) the taking of a motor vehicle which belongs to another;

(2) the taking is without the consent of the owner or by means of violence against or intimidation
of persons or by using force upon things; and

(3) the taking is done with intent to gain.[37]

All these elements were established by the prosecution beyond reasonable doubt.

Exhibits "I"[38] "J"[39] and "K",[40] proved that the blue Honda XRM motorcycle with plate
number UU-9142 used as a service vehicle by appellant was acquired from Triumph JT
Marketing Corporation by Manolito, Emelina's spouse, establishing the first element.

It is the second element that the appellant claimed was not proven because the prosecution's
evidence failed to show that he took the motorcycle without the consent of Emelina. Indeed,
Emelina herself tasked the appellant to proceed to Mabini, Manila, and permitted him to use the
service motorcycle.

Unlawful taking, or apoderamiento, is the taking of the motor vehicle without the consent of the
owner, or by means of violence against or intimidation of persons, or by using force upon things;
it is deemed complete from the moment the offender gains possession of the thing, even if he has
no opportunity to dispose of the same.[41] In Roque v. People,[42] the Court ruled that qualified
theft may be committed even when the personal property is in the lawful possession of the
accused prior to the commission of the felony. The concept of unlawful taking in theft, robbery
and carnapping being the same,[43] the holding in Roque v. People[44] equally applies to
carnapping. Henee, in People v. Bustinera,[45] appellant, who was hired as taxi driver, was found
guilty of carnapping under R.A. No. 6539 after he failed to return the Daewoo Racer taxi
assigned to him by the cab company where he was employed.

In the present case, the Solicitor General aptly argued that appellant's failure to return the
motorcycle to Emelina after his working hours from 8:00 a.m. to 5:00 p.m.[46] constitutes
"unlawful taking". Emelina lodged a complaint against appellant with the PNP-CIDG for the loss
of the service motorcycle[47] confirming that appellant's continued possession thereof is without
her authority.

The subsequent recovery of the stolen motorcycle will not preclude the presence of
the third element. Actual gain is irrelevant as the important consideration is the intent to gain
or animus lucrandi.[48] Intent to gain is an internal act presumed from the unlawful taking[49] of
the motor vehicle which the appellant failed to overcome with evidence to the contrary. Verily,
the mere use of the thing unlawfully taken constitutes gain.[50]

Appellant is thus guilty of the crime of carnapping under R.A. No. 6539.

II. Criminal Case No. MCOS-11422 (For Qualified Theft)

Appellant asserted that he cannot be convicted of Qualified Theft because his employment as
messenger did not create a fiduciary relationship that will qualify the crime of theft. He also
insisted that Exhibit "F" is self-serving and is incompetent to establish the amount of money
handed to him by Emelina.

For the successful prosecution for Qualified Theft committed with grave abuse of confidence, the
prosecution must establish beyond reasonable doubt the following elements: (1) taking of
personal property; (2) that the said property belongs to another; (3) that the said taking be done
with intent to gain; (4) that it be done without the owner's consent; (5) that it be accomplished
without the use of violence or intimidation against persons, nor of force upon things; and (6) that
it be done with grave abuse of confidence.[51]

All these elements are present in the instant case. Emelina positively and credibly testified that
she entrusted to appellant the amount of P800,000.00 and foreign currencies valued at
P277,995.00. Instead of delivering the money to the designated money changer as directed by
Emelina, appellant breached the trust reposed in him and disappeared with the cash bills.

We agree with the RTC and the CA that a fiduciary relationship between appellant and Emelina,
his employer, existed contrary to the assertion of appellant.

In Candelaria v. People,[52] petitioner Candelaria was the driver of the truck loaded with liters of
diesel fuel for delivery to a customer. Instead of delivering the fuel, petitioner Candelaria
disappeared together with the truck and its cargo. With the recovery of the truck, petitioner
Candelaria was convicted of Qualified Theft for the lost fuel.

Here, the function of the appellant as a messenger of the E. Gloria Money Changer is to deliver
amounts of money, both peso and foreign currency, to the clients or to exchange the currency
with another money changer. Emelina routinely entrusts to appellant, on a daily basis, various
amounts of money from P50,000.00 to P500,000.00[53]without requiring the latter to
acknowledge receipt thereof. Emelina testified that she does not have proof that he handed to
appellant P800,000.00 and various foreign currency on July 11, 2007 because of her total trust
and high degree of confidence on appellant ("tiwalaan lang po").[54] This exhibited the trust and
confidence of Emelina to the appellant which he exploited to enrich himself to the damage and
prejudice of the former.

The straightforward and credible testimony[55] of Emelina is adequate to establish the exact
amount of money handed to appellant. She could not have forgotten about the denominations
given to appellant as the same is subject of her transaction with a money changer in Mabini,
Manila, and she counted[56] the same before handing it to appellant. Thus, the testimony of
Emelina sufficiently proved beyond reasonable doubt that she delivered to appellant monies
valued in the total amount of P1,077,995.00.

APPELLANT'S DEFENSE

The lame defense of denial is all that appellant could offer against the prosecution evidence.
Denial is a negative and self-serving evidence that requires to be substantiated by clear and
convincing evidence of nonculpability to merit credibility.[57] Otherwise, it will not overcome the
testimony of the prosecution witness/es who testified on affirmative matters.[58] Except for the
testimonial assertion of appellant in the present case, no credible corroborating evidence was
presented by the defense to bolster his denial. Emelina's positive assertions that she handed to
appellant the money to be delivered to a money changer in Mabini, Manila, and that he did not
return the service motorcycle, prevail over the denial of the appellant. Appellant's
admission[59] that he was at E. Gloria Money Changer shop in the morning of July 11, 2007
further served to bolster the testimony of Emelina.

In the face of the overwhelming and positive evidence against the appellant, even if his return to
Zamboanga City is disregarded as an indication of his guilty conscience, his conviction should
still be sustained. Unfortunately for appellant, there is no case law holding non-flight as an
indication or as conclusive proof of innocence.[60]

THE PENALTIES

The RTC, as affirmed by the CA, correctly imposed in Criminal Case No. MCOS-11421 (for
carnapping) the penalty of 14 years and 8 months, as minimum, to 17 years and 4 months, as
maximum, which is within the range of the imposable penalty under Section 14 of R.A. No.
6539:

SEC. 14. Penalty for Carnapping. Any person who is found guilty of carnapping, as this term is
defined in Section Two of this Act, shall, irrespective of the value of motor vehicle taken, be
punished by imprisonment for not less than fourteen years and eight months and not more than
seventeen years and four months, when the carnapping is committed without violence or
intimidation of persons, or force upon things x x x. (Emphasis and underscoring supplied)

Further, appellant was correctly meted the penalty of reclusion perpetua for Qualified Theft
in Criminal Case No. MCOS-11422. Article 309 of the Revised Penal Code reads:

ART. 309. Penalties. - Any person guilty of theft shall be punished by:

1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing
stolen is more than 12,000 pesos but does not exceed 22,000 pesos; but if the value of the thing
stolen exceeds the latter amount, the penalty shall be the maximum period of the one. prescribed
in this paragraph, and one year tor each additional ten thousand pesos, but the total of the
penalty which may be imposed shall not exceed twenty years. In such cases, and in connection
with the accessory penalties which may be imposed and for the purpose of the other provisions
of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may
be. (Emphasis supplied)

The basic penalty when the value of the stolen item exceeded P22,000.00 is the maximum period
of the penalty of prision mayor in its minimum and medium periods which is 8 years, 8 months
and 1 day to 10 years of prision mayor. To determine the additional years of imprisonment, the
difference after deducting P22,000.00 shall be divided by P10,000.00, disregarding any amount
less than P10,000.00. The amount of cash stolen by appellant is P1,077,995.00. Thus, 105
years[61] shall be added to the basic penalty. However, the penalty for Simple Theft cannot go
beyond 20 years of reclusion temporal, and such will be the sentence of appellant if he
committed Simple Theft.

The penalty for Qualified Theft is two degrees higher under Article 310[62] of the Revised Penal
Code, thus appellant was correctly sentenced to reclusion perpetua. However, appellant is
disqualified under R.A. No. 9346,[63] in relation to Resolution No. 24-4-10[64] to avail the
benefits of parole.

WHEREFORE, the present appeal is DISMISSED. The appealed Decision dated May 22, 2014
of the Court of Appeals in CA-G.R. CR-H.C. No. 05870 is AFFIRMED and UPHELD.[65]

With costs against the accused-appellant.

SO ORDERED.

Velasco, Jr., (Chairperson), Peralta, Perez* and Mendoza,** JJ., concur.

THIRD DIVISION

[ G.R. No. 215731, September 02, 2015 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROLANDO

CARRERA Y IMBAT, ACCUSED-APPELLANT.

DECISION

VILLARAMA, JR., J.:

Before us is an appeal[1] from the June 10, 2014 Decision[2] of the Court of Appeals (CA) in CA-
G.R. CR-HC No. 05885 modifying the November 27, 2012 Decision[3] of the Regional Trial
Court (RTC), Branch 127, Caloocan City, finding appellant Rolando Carrera guilty beyond
reasonable doubt of violation of Section 5,[4] Article II, Republic Act (R.A.) No. 9165[5] or the
Comprehensive Dangerous Drugs Act of 2002.

After a buy-bust operation conducted on July 14, 2009, an Information for violation of Section 5,
Article II of R.A. No. 9165 was filed against appellant reading:

That on or about the 14th day of July, 2009 in Caloocan City, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, without authority of law, did
then and there willfully, unlawfully and feloniously sell and deliver to [IO1] JOSEPH L
SAMSON, who posed as buyer, METHYLAMPHETAMINE HYDROCHLORIDE (Shabu)
weighing 4.5722 grams, 4.1451 grams, 4.2055 grams, 3.8220 grams, 3.4999 grams, 4.5061
grams & 4.7124 grams, a dangerous drug, without the corresponding license or prescription
therefore, knowing the same to be such.

Contrary to Law.[6]

On arraignment, appellant pleaded not guilty.[7] Trial on the merits ensued after pre-trial.

The Prosecution's Version

Prosecution presented Maria Criser Abad, Intelligence Officer (IO) 2 Liwanag Sandaan, IO2
Joseph Samson and IO1 Darwin Reed.

On July 13, 2009, a confidential informant of IO2 Sandaan arrived at the Philippine Drug
Enforcement Agency - Metro Manila Regional Office (PDEA-MMRO) and reported illegal drug
activities of a certain Latif in Caloocan City. The informant alleged that Latif was engaged in
selling shabu and capable of selling large amounts of bulto.[8] IO2 Sandaan instructed the
informant to call Latif and order seven bulto of shabu and learned that each bulto would cost
P27,000.00. The informant confirmed the transaction.

IO2 Sandaan called a team composed of IO1 Frederick Santos, IO1 Reed, IO1 Samson and IO1
Leverette Lopez and briefed them on the alleged drug activities in Caloocan City. At about 4:00
a.m. the following day, IO2 Sandaan conducted a briefing on the buy-bust operation. IO1
Samson was the designated poseur-buyer while IO1 Santos was the immediate back-up arresting
officer. IO2 Sandaan handed two P500-bills as buy-bust money to IO1 Samson who marked the
bills with his initials. They made it appear that the money was in a bundle placing one P500-bill
at the top of the stack and another at the bottom.

They agreed that if the deal was consummated, IO1 Samson would remove his cap as the signal.
IO2 Sandaan asked her team to prepare the Pre-Operation Report and Authority to Operate.
Before leaving, the team coordinated with the Tactical Operation Center, the Quezon City Police
and the Caloocan City Police.

The team with the informant went to Brgy. Malaria, Caloocan City on-board a red L-300 van.
Upon arriving at around 9:30 a.m., IO1 Samson and the informant alighted from the van and
proceeded to the designated area, an eatery near the barangay hall. The rest of the team stayed at
a nearby burger place about eight meters away.

With the team positioned, the informant called Latif. A short male person, subsequently
identified as appellant, arrived shortly after the call. The informant introduced IO1 Samson as the
buyer and asked whether he had the item with him. Appellant replied in the affirmative and
asked IO1 Samson if he brought the money. IO1 Samson replied in the affirmative and partly
opened the plastic bag containing the money showing the top portion to appellant. He then
informed appellant that he will only hand the money when he received the item.

Appellant pulled out from his pocket a transparent plastic wrapped with electrical tape and
handed it to IO1 Samson. Upon receipt of the plastic packet with the crystalline substance, IO1
Samson grabbed appellant, introduced himself as PDEA agent, and removed his cap to notify the
team. The team approached the target area and IO1 Santos assisted IO1 Samson in arresting
appellant by handcuffing him and reading to him his constitutional rights.

There being a commotion caused by the arrest and spectators drawn to the sight, IO2 Sandaan
called the driver to the target area. A person introducing himself as the barangay captain
approached her and asked what had happened. IO2 Sandaan introduced herself as a PDEA agent
and told him that they were arresting someone. She learned that appellant was a member of a
Muslim drug group and a tricycle driver. Noting that she only had five agents with her she
decided to promptly leave the area and conduct an inventory of the seized articles in Brgy.
Pinyahan, Quezon City. En route, IO1 Samson maintained custody and possession of the items
taken from appellant.

When the team arrived at the barangay hall of Brgy. Pinyahan, they opened the plastic bag and
found seven sachets of shabu. These were included in the list along with electrical wrapper and
plastic bag. An Inventory of Seized Properties/Items[9] was prepared by IO1 Samson in the
presence of Barangay Kagawad Melinda Gaffud. Inventory was made and the evidence marked
by IO1 Samson while IO1 Lopez photographed the same. After finalizing the inventory and
markings, the team went back to the PDEA-MMRO to prepare the requests for laboratory
examination and drug test examination. IO1 Samson personally brought the specimen and the
request to the PDEA Crime Laboratory Service on the same day.

Upon receipt of the request, Maria Criser Abad, the Crime Laboratory Chemist on duty,
personally performed the examination on the seven sachets containing white crystalline
substance submitted by IO1 Samson. Appellant's urine sample was likewise submitted.

The evidence was found pos1t1ve for Methamphetamine Hydrochloride.[10] On the other hand,
appellant's urine sample was found negative for the presence of shabu and marijuana.[11]

The Defense's Version

The defense's evidence consisted of the testimonies of Jocelyn Garcia-Carrera, live-in partner of
appellant, and appellant.
Appellant denied owning and possessing the plastic sachets containing the white crystalline
substance. Appellant, a tricycle driver, asserts that he was working on that day. His services were
contracted by a passenger who wanted a ride from Phase 12, Tala, Caloocan to Brgy. Malaria
and back. Jocelyn decided to ride with appellant and the passenger to Brgy. Malaria because she
wanted to buy medicines. When they arrived at Brgy. Malaria, the passenger alighted and told
appellant to wait for him. While he was waiting with Jocelyn for the passenger's return, they
were suddenly handcuffed by the members of the buy-bust team. He identified his passenger as
one of the people who arrested him. Both he and Jocelyn were frisked. They took his wallet but
the same was returned without his driver's license. Both he and Jocelyn then were placed inside a
van. Jocelyn was let-off at Lagro, Quezon City. He was then asked if he knew a person named
Latif which he answered in the negative.

They left Caloocan, stayed for a while at Quezon City Memorial Circle, and then proceeded to
the barangay hall of Brgy. Pinyahan. It was when they were in the barangay hall of Brgy.
Pinyahan that appellant saw for the first time the prohibited drugs.

In its November 27, 2012 Decision, the RTC found appellant guilty beyond reasonable doubt for
violation of Section 5, Article II of R.A. No. 9165. The RTC ruled:

WHEREFORE, premises considered, judgment is hereby rendered declaring [appellant] Rolando

Carrera y Imbat for Violation of Sec. 5, Art. II, R.A. 9165 guilty beyond reasonable doubt and is
hereby sentenced to suffer the penalty of life imprisonment and to pay a fine of Five Hundred
Thousand (P500,000.00) Pesos, as provided for by law.

The drugs subject matter of this case are hereby confiscated in favor of the government to be
dealt with in accordance with law.

SO ORDERED.[12]

On appeal, the CA in its June 10, 2014 Decision found appellant guilty of illegal possession of
prohibited drugs under Section 11, Article II of R.A. No. 9165. It ruled:

WHEREFORE, the appeal is DENIED. The November 27, 2012 Decision of Caloocan City
Regional Trial Court, Branch 127, in Criminal Case No. C-81635, finding [appellant] Rolando
Carrera y Imbat guilty beyond reasonable doubt of Violation of Section 5, Article II of Republic
Act (R.A.) No. 9165 is hereby MODIFIED in that this Court instead finds
[appellant] GUILTY beyond reasonable doubt of illegal possession of prohibited drugs penalized
under Section 11, Art. II of [R.A. No.] 9165. Accordingly, [appellant] is sentenced to suffer the
penalty of LIFE IMPRISONMENT and to PAY A FINE OF FOUR HUNDRED THOUSAND
PESOS (P400,000.00).
All other aspects of the assailed decision are maintained.

SO ORDERED.[13]

In our February 23, 2015 Resolution, parties were notified that they may tile their supplemental
briefs. Both parties[14] decided to forego the tiling of such pleadings and opted to adopt the briefs
they had submitted before the CA.

The issue for our consideration is whether appellant is guilty beyond reasonable doubt of the
crime of illegal possession of illegal drugs.

We deny the appeal and affirm with modification the July 10, 2014 Decision of the CA.

We note at the outset that appellant was charged in the information with selling and
delivering shabu[15] and was apprehended during a buy-bust operation conducted by the PDEA.

FEAR FOR LOSS OF LIFE AND LIMB

IS A SUITABLE JUSTIFICATION FOR NOT
CONDUCTING THE INVENTORY AND
MARKING AT THE NEAREST BARANGAY
HALL OR POLICE STATION

Buy-bust operations are recognized in this jurisdiction as a legitimate form of entrapment of the
persons suspected of being involved in drug dealings.[16] In the prosecution of illegal sale of
dangerous drugs in a buy bust operation, there must be a concurrence of all the elements of the
offense: (1) the identity of the buyer and the seller, the object, and the consideration; and (2) the
delivery of the thing sold and the payment thereof. The prosecution must also prove the illegal
sale of the dangerous drugs and present the corpus delicti in court as evidence.[17]

We have stated that strict compliance with the prescribed procedure is required for the
prosecution of illegal sale because of the illegal drug's unique characteristic rendering it
indistinct, not readily identifiable, and easily open to tampering, alteration or substitution either
by accident or otherwise.[18] It is thus important that the "chain of custody," provided under
Section 21(1),[19] Article II of R.A. No. 9165 and Section 21(a),[20] Article II of the Implementing
Rules and Regulations (IRR) of R.A. No. 9165, be established to allay any suspicion of
tampering. In a buy-bust operation, the failure to conduct a physical inventory and to photograph
the items seized from the accused will not render his arrest illegal or the items confiscated from
him inadmissible in evidence as long as the integrity and evidentiary value of the said items have
been preserved.[21]
We have recognized that the strict compliance with the requirements of Section 21 of R.A. No.
9165 may not always be possible under field conditions. As the IRR states, "non-compliance
with these requirements under justifiable grounds, as long as the integrity and the evidentiary
value of the seized items are properly preserved by the apprehending officer/team, shall not
render void and invalid such seizures of and custody over said items[.]" These lapses, however,
must be recognized and explained in terms of their justifiable grounds, and the integrity and
evidentiary value of the evidence seized must be shown to have been preserved.[22] It is thus the
prosecution's burden to prove justifiable cause.[23]

Here, IO1 Samson narrated:

Q: So, what happened when you arrived in Bgy. Malaria at 9:30 a.m. of July 14, 2009?

A: I went ahead together with the confidential informant, sir.

Q: And how about the other members of your team, where did they go if any at that time?

A: They dispatched in the vicinity, sir.

Q: So, you said that you and the confidential informant went ahead, what happened after
you arrived at that area?

A: We waited for a while and then we contacted alias Latif, sir.

Q: How did you contact alias Latif?

A: Thru cell phone, sir.

Q: So, what happened after the confidential informant contacted alias "Latif" thru cell
phone?

A: They said to wait for a while and then after a while a male person arrived, sir.

Q: What did this male person do, if any?

A: I was introduced by the confidential informant to him as buyer, sir.

Q: What happened after that?

A: And then I asked him if he has the shabu, sir.

Q: What was his answer?

A: He answered, "yes."

Q: What else happened?

A: He answered "yes" we have shabu and then he also asked me if I have money, sir.

Q: What was your answer?

A: I said yes I have the money.

Q: So, what happened after that?

A: I told him that I will pay the item if he. will give it to me. He pulled from his pocket a
transparent plastic wrapped with electrical tape and handed that something from his
pocket to me, sir.

Q: What was [it that] he handed to you?

A: An item that was wrapped on an electric tape and then I saw a crystalline substance
suspected to be shabu, sir.

Q: What did you do with the thing which he handed to you, a white crystalline substance
which [is] suspected to be shabu?

A: After he handed to me the thing which I suspected to be shabu, I removed my bullcap

as the pre-arranged signal and I grabbed him, sir.

xxxx

COURT BUTT[S] IN:

Q: When you removed the bull cap, is Latif around?

A: Not yet, your Honor, after getting a transparent plastic wrapped with electrical tape, I
saw white crystalline substance. I did not give the money anymore because I remove
my bull cap.

Q: Why did you not give him the money that was agreed upon?

A: I was afraid because that is only boodle money and that money was placed on a plastic
bag and then I showed it to him telling him that is the money, your Honor.

Q: How much money was contained in that plastic bag?

A: I only open the upper portion of the plastic bag I showed him the top portion of the
money, your Honor.

Q: When Latif handed to you that thing wrapped with an electrical tape did he not ask for
the payment?
A: No more, your Honor, he has no time to ask me because I immediately grabbed him.

Q: What do you mean by the word I grabbed him, you immediately grab him after seeing
the content of the electrical tape was shabu?

A: Ycs, your Honor.

Q: So, what happened when you grab[bed] alias "Latif''?

A: I introduced myself as PDEA Agent and then I removed my bull cap, Frederick Santos
assisted me in the arrest of alias Latif, your Honor.

PROS. CANSINO:

Q: How did Frederick Santos assist you in arresting alias "Latif'?

A: It was Frederick Santos who handcuffed and apprised Latif of his constitutional rights,
sir.

Q: So, what happened after affecting the arrest of alias Latif?

A: We immediately go to the Barangay Hall of Pinyahan, Quezon City, sir.

Q: Who ordered you to proceed to Barangay Hall of Pinyahan, Quezon City?

A: Our team leader IO2 Liwanag Sandaan, sir.

Q: You said you went through from the area of operation you proceed to Barangay
Pinyahan, what happened at the Barangay Hall of Pinyahan?

A: The photographer took pictures of the evidence seized from the accused, sir.

Q: What did you do if any as regards the marking of the seized evidence?

A: I marked all the evidence confiscated from the accused, sir.

Q: Can you please tell us what are those pieces of evidence confiscated from the accused?

A: The seven (7) sachets of shabu which was wrapped in an electric tape and place[d] in a
plastic bag, sir.

Q: So, you said that you made markings on those seized evidence you mentioned, can you
please tell what those markings placed on the plastic sachet containing shabu?

A: Exhibit A-1 to A-7, sir.

Q: How about on the electrical tape used as wrapper in those evidences?

A: I marked it as Exhibit A-1 to A-7 JLS-07-09,[24] sir.[25]

IO1 Samson then proceeded to describe the process of taking pictures of the seized items. To
justify the conduct of inventory and marking in another place IO2 Sandaan testified:

PROS. CANSINO:

Q. So what happened after that when you ordered your men to proceed for the arrest of
that male person?

WITNESS:

A. When the male person was arrested I immediately called the driver to proceed to the
area because during that time there was a commotion and because we were armed and
we were in front of the barangay hall and because that place is a terminal of the tricycle
there were already many people and then there was one person who introduced himself
as barangay captain and asked "Ano po ba 'yong kaguluhang nangyayari?" and I
introduce[d] myself as PDEA Agent and I told him "may hinuli lang po kami, aalis na
rin po kami" and then we left the area, sir.

Q. Where did you proceed if any Madam Witness after effecting the arrest of accused?

A. After the arrest we proceeded to the barangay hall but the barangay hall we went to was
located at Brgy. Pinyahan in Quezon City, sir.

Q. So what happened at the barangay hall of Brgy. Pinyahan, Quezon City?

A. At the barangay hall of Brgy. Pinyahan in Quezon City we inventoried the seized
evidence, sir.

xxxx

COURT butts in:

Before you go to that point may I just ask again.

Q. You said that the operation was conducted just beside the barangay hall of Brgy.
Malaria so after the arrest why you still have to proceed to Brgy. Pinyahan instead of
going directly to that barangay hall near to where the operation was conducted?

WITNESS:

A. The reason why I decided not to conduct the inventory in that barangay hall, your
Honor, because it happened that our subject learned I mean because our subject told me
that [he was] one of the member[s] of the Muslim drug group that's why I cannot risk
 my agents to stay longer at the barangay hall and aside from that this subject happened
to be a tricycle driver and the tricycle terminal was only beside the barangay hall so I
decided not to conduct the inventory there because we are only five agents there and I
cannot take [the] risk of my agents staying longer in that area.[26]

On cross-examination, IO2 Sandaan was asked why she ordered the team to leave Brgy. Malaria
and conduct the inventory and marking at Brgy. Pinyahan and she explained as follows:

Q. And as you said instead of conducting your inventory at the barangay hall of Malaria
you proceeded to a barangay hall in Brgy. Pinyahan, Quezon City which is beside your
very main office, isn't it?

A. Not beside our office, sir, it is on the other side of East Avenue.

Q. But it is already Quezon City, isn't it, because your [main] office is located at Brgy.
Pinyahan?

A. Yes, sir.

Q: It was just a puzzle to me why you proceeded to Brgy. Pinyahan instead of any
barangay in Caloocan City referring to the second district, there were many barangay in
Bagong Silang, in Camarin, did it not occur to your mind that procedurally it is proper
to conduct an inventory at the nearest barangay or maybe not in Brgy. Malaria itself?

A. My option was if ever we cannot conduct the inventory at the place or in that particular
barangay which has the jurisdiction of the place of transaction we will conduct our
inventory at the barangay hall of Brgy. Pinyahan, sir.

Q. So with your action of leaving the area immediately after your alleged buy bust
operation I assume that you did not make any markings at the alleged scene of the
crime?

A. No, sir.[27]

We thus agree with the CA and the RTC that under the circumstances the buy-bust team was
justified in not conducting the inventory or marking at Brgy. Malaria.

APPELLANT IS GUILTY OF ILLEGAL

DELIVERY OF A PROHIBITED DRUG

We agree with the CA that appellant may not be held guilty of illegal sale of a prohibited drug.
In order to establish the crime of illegal sale of shabu, the prosecution must prove beyond
reasonable doubt (a) the identity of the buyer and the seller, the identity of the object and the
consideration of the sale; and (b) the delivery of the thing sold and of the payment for the
thing.[28] It is thus imperative that proof of the transaction or sale be established together with the
presentation of the corpus delicti in court.

Here, IO1 Samson, as the poseur-buyer, admitted that while he was in possession of the marked
money he failed to effect payment even after the seller delivered the item to him. There being no
payment, no sale was ever consummated between the parties. There being no consummated sale,
appellant cannot be found guilty of illegal sale.

While we agree with the CA that appellant is still liable for an offense under R.A. No. 9165, we
disagree with its conclusion that appellant is guilty of illegal possession of a prohibited drug. We
previously held that Section 5, Article II of R.A. No. 9165 punishes acts in addition to selling
prohibited drugs. We stated:

It must be emphasized that appellants were charged with selling, trading, delivering, giving
away, dispatching in transit and transporting dangerous drugs under Section 5, Article II of
Republic Act No. 9165. The charge was not limited to selling. Said section punishes not only the
sale but also the mere act of delivery of prohibited drugs after the offer to buy by the entrapping
officer has been accepted by the seller. In the distribution of prohibited drugs, the payment of
any consideration is immaterial. The mere act of distributing the prohibited drugs to others is in
itself a punishable offense. x x x[29]

As we noted, appellant was charged with illegal sale and delivery of a prohibited drug under
Section 5, Article II of R.A. No. 9165. Appellant thus based on the information and the evidence
presented may be found liable of illegal delivery of prohibited drugs.

In People v. Maongco,[30] we stated that a person may be convicted of illegal delivery of

dangerous drugs if it is proven that (1) the accused passed on possession of a dangerous drug to
another, personally or otherwise, and by any means; (2) such delivery is not authorized by law;
and (3) the accused knowingly made the delivery with or without consideration. In this case, we
convicted a person charged with illegal sale of shabu of illegal delivery of shabu for non-
payment by the poseur-buyer.

Likewise, in People v. Reyes,[31] we convicted a person of illegal delivery of shabu instead of

illegal sale of a prohibited drug because the prosecution did not establish payment - an essential
element of the crime of illegal sale of a prohibited drug.

In the present case, the prosecution established that appellant based on a prior arrangement
knowingly passed the shabu to IO1 Samson. Being a tricycle driver, appellant was without
authority to hold and deliver the drug. Thus, appellant is guilty of illegal delivery of shabu.

Section 5, Article II of R.A. No. 9165 provides that the penalty of life imprisonment to death and
a tine ranging from five hundred thousand pesos (P500,000.00) to ten million pesos
(P10,000,000.00) shall be imposed upon any person who shall be found guilty of illegal delivery
of a prohibited drug.[32]

WHEREFORE, the appeal is DISMISSED for lack of merit. Appellant ROLANDO

CARRERA y IMBAT is hereby found GUILTY of Illegal Delivery of Prohibited Drugs as
defined under Section 5, Article II, Republic Act No. 9165. He is sentenced to suffer the penalty
of life imprisonment and ordered to pay a fine of Five hundred thousand pesos (P500,000.00).

With costs against the appellant.

SO ORDERED.

Velasco, Jr, (Chairperson), Peralta, Villarama, Jr., Perez,* and Perlas-Bernabe,** JJ., concur.

SECOND DIVISION

[ G.R. No. 196052, September 02, 2015 ]

PEOPLE OF THE PHILIPPINES, APPELLEE, VS. JOCELYN POSADA Y SONTILLANO AND

FRANCISCO POSADA Y URBANO, APPELLANTS.

DECISION

BRION, J.:

We resolve the appeal of accused-appellants Jocelyn Posada y Sontillano (Jocelyn) and

Francisco Posada y Urbano (Francisco) assailing the September 30, 2010 Decision[1] of the
Court of Appeals (CA), docketed as CA-G.R. CR.-H.C. No. 03768. The CA Decision affirmed
with modification the January 13, 2009 Judgment[2] of the Regional Trial Court (RTC), Branch
43, Virac, Catanduanes, finding accused-appellants guilty beyond reasonable doubt of violating
Section 11, Article II of Republic Act No. 9165, otherwise known as the Comprehensive
Dangerous Drugs Act of 2002.

The Case

In its January 13, 2009 Judgment, the RTC found accused-appellant Jocelyn guilty of illegal
possession of 2.2825 grams and accused-appellant Francisco guilty of illegal possession of
24.2313 grams of methamphetamine hydrochloride, also known as shabu. The RTC held, among
others, that the prosecution was able to prove all the elements of illegal possession of dangerous
drugs. It found the search warrant, which led to the immediate arrest of accused-appellants, valid
and the chain of custody of the seized items preserved. Accordingly, the RTC sentenced accused-
appellant Jocelyn to suffer the indeterminate penalty often (10) years and one (1) day, as
minimum, to fourteen (14) years, as maximum; and sentenced accused-appellant Francisco to
suffer life imprisonment. It also ordered them to pay fines of Three Hundred Thousand
(P300,000.00) Pesos and Four Hundred Thousand (P400,000.00) Pesos, respectively.

On appeal, the CA affirmed the RTC decision with the modification that accused-appellant
Jocelyn is sentenced to suffer the indeterminate penalty of twelve (12) years and one (1) day, as
minimum, to fourteen (14) years, as maximum. The CA added that any question on the validity
of the search warrant was closed in a September 21, 2006 Resolution,[3] in which the RTC denied
accused-appellants' Motion to Quash Search Warrant. The CA further ruled that the certification
signed by accused-appellant Jocelyn was not a confession but an acknowledgment of the fact that
the police had conducted a search of their premises by virtue of the search warrant; that the
search was conducted in an orderly manner; and that the search was conducted in her presence
and in the presence of Kagawad Jena Arcilla (Kag. Arcilla).

On October 27, 2010, the accused-appellants filed their notice of appeal following the September
30, 2010 Decision on the ground that it was contrary to facts, law, and applicable jurisprudence.

Our Ruling

We affirm the accused-appellants' conviction.

The search warrant was valid.

The Office of the Solicitor General correctly argued that any question as to the validity of the
search warrant was closed by the September 21, 2006 Resolution of the RTC, which the accused-
appellants opted not to question further. As mentioned by the CA, the judicial finding of
probable cause in issuing a search warrant should not be doubted when the judge personally
examines the applicant and/or witnesses and there is no basis to doubt his reliability and
competence in evaluating the evidence before him.[4] With regard to the designation of the place
to be searched, the RTC sufficiently justified that the search warrant particularly described the
place to be searched: a sketch showing the location of the house to be searched was attached to
the application and the search warrant pointed to only one house in the area.[5]

A long-standing rule is that a description of the place to be searched is sufficient if the officer
with the warrant can, with reasonable effort, ascertain and identify the place intended and
distinguish it from other places in the community. Any designation or description known to the
locality that points out the place to the exclusion of all others, and on inquiry leads the officers
unerringly to it, satisfies the constitutional requirement.[6] Taking from American Jurisprudence,
"[t]he determining factor as to whether a search warrant describes the premises to be searched
with sufficient particularity is not whether the description is sufficient to enable the officer to
locate and identify the premises with reasonable effort."[7]

The elements of illegal possession of dangerous drugs were established.

For the successful prosecution of illegal possession of dangerous drugs the following essential
elements must be established: (a) the accused is in possession of an item or object that is
identified to be a prohibited or dangerous drug; (b) such possession is not authorized by law; and
(c) the accused freely and consciously possesses the said drug.[8]

The prosecution was able to establish the presence of all the required elements for violation of
Section 11, Article II of Republic Act No. 9165.

The presented evidence showed that early in the morning of April 8, 2006, police officers went
to the house of the accused-appellants in Virac, Catanduanes, to implement a search warrant.
After the search warrant was read, accused-appellant Francisco argued with the police officers
though later insisted that he be allowed to have breakfast before anything else. While PO1 Jigger
Tacorda (PO1 Tacorda) and Kagawad Eva Sarmiento (Kag. Sarmiento) were escorting him to
the nearby eatery, they saw him throw something on the pavement. PO1 Tacorda immediately
accosted and reprimanded accused-appellant Francisco while Kag. Sarmiento picked up the
plastic sachets containing a white crystalline substance. A total of thirty-seven (37) sachets were
recovered from the pavement which were photographed by PO3 Raul Santos (PO3 Santos), and
then were turned over to the crime laboratory for inventory, documentation, and examination.
The results of the examination of the contents of the thirty-seven (37) plastic sachets done in the
crime laboratory showed that these contained shabu.

Thereafter, Kag. Arcilla and accused-appellant Jocelyn accompanied P/Supt. Samuel Villamer,
PO1 Julius Jacinto (PO1 Jacinto), PO1 Arlan Sevilla (PO1 Sevilla), and PO1 Tacorda to the
place designated in the search warrant. While searching the kitchen, PO1 Jacinto came upon a
plastic bag of charcoal near the stove. He examined its contents and found a matchbox hidden
between the pieces of charcoal. Inside the matchbox were five (5) heat-sealed plastic transparent
sachets containing a white crystalline substance. PO3 Santos photographed the plastic sachets
and then turned these over for inventory and documentation. Upon examination of the contents
of the five (5) plastic sachets in the crime laboratory, the forensic chemist found that they
likewise contained shabu. When accused-appellant Jocelyn was asked during trial about the
picture showing the location of the charcoal stove, she categorically declared that it was
"charcoal and the place where I place the charcoal."[9] Thus, the RTC correctly appreciated the
admission that she had control over this item.[10]

From these established facts, it is clear that accused-appellants knowingly possessed shabu - a
prohibited drug - without legal authority to do so in violation of Section 11, Article II of
Republic Act No. 9165.

We rely on the RTC's assessment of the credibility of the prosecution witnesses, absent any
showing that certain facts of weight and substance bearing on the elements of the crime have
been overlooked. We particularly note that the accused-appellants even testified that they did not
know any reason or ill motive on the part of the police officers to charge and prosecute them for
illegal possession of dangerous drugs. In addition, the police officers are presumed to have
regularly performed their official duties, absent contrary convincing evidence.

The Chain of Custody was preserved.

After a careful reading of the records, we also find that the chain of custody over the forty-two
(42) plastic sachets of shabu was not broken. Based on the records, PO1 Jacinto narrated how he
found the five (5) heat-sealed transparent plastic sachets and how he turned over said items to
PO1 Sevilla after they were photographed by PO3 Santos. Kag. Arcilla, who was present during
the search, corroborated his testimony. The RTC found that PO1 Jacinto properly placed all five
(5) plastic sachets in a transparent plastic bag which was sealed with masking tape and duly
signed by him. As for the thirty-seven (37) plastic sachets, PO1 Sevilla testified that Kag.
Sarmiento saw Francisco throw the plastic sachets on the pavement; and that Kag. Sarmiento and
he picked up said plastic sachets. The RTC found that all thirty-seven (37) plastic sachets were
placed in a transparent plastic bag which was sealed with masking tape duly signed by Kag.
Sarmiento. Finally, PSI Josephine Macura Clemen (PSI Clemen) narrated that the forty-two (42)
heat-sealed plastic sachets containing white crystalline substances were turned over to the crime
laboratory for qualitative examination; that said confiscated items were thereafter found positive
for shabu, and were identified by PSI Clemen herself before the RTC.

It is settled that the failure to strictly follow the directives of Section 21, Article II of RA
Republic Act No. 9165 is not fatal and will not necessarily render the items confiscated
inadmissible. What is important is that the integrity and the evidentiary value of the seized items
are preserved. The succession of events in this case show that the items seized were the same
items tested and subsequently identified and testified to in court. We thus hold that the integrity
and evidentiary value of the drugs seized from the accused-appellants were duly proven not to
have been compromised.

Signing the Certification of Orderly Search was not an extrajudicial confession.

Finally, as the CA correctly pointed out, when accused-appellant Jocelyn signed the Certificate
of Orderly Search, she did not confess her guilt to the crime charged. She merely admitted to the
fact that a lawful search was conducted while she was in the same premises.

The CA imposed the correct penalty.

We sustain the penalty imposed by the CA as it is in accordance with the penalty prescribed
under Section 11, Article II of RA No. 9165, in relation to Section 1 of RA No. 4103, as
amended, otherwise known as the Indeterminate Sentence Law.

WHEREFORE, the September 30, 2010 Decision of the Court of Appeals in CA-G.R. CR.-H.C.
No. 03768 is AFFIRMED.

SO ORDERED.

Carpio, (Chairperson), Del Castillo, Mendoza, and Leonen, JJ., concur.

SECOND DIVISION

[ G.R. No. 188794, September 02, 2015 ]

HONESTO OGAYON Y DIAZ, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,

RESPONDENT.

DECISION

BRION, J.:

We resolve the petition for review on certiorari[1] assailing the Decision[2] dated March 31, 2009,
and the Resolution[3] dated July 10, 2009, of the Court of Appeals (CA) in CA-G.R. CR No.
31154. The appealed decision affirmed the joint judgment[4] dated September 5, 2007, of the
Regional Trial Court (RTC), Branch 12, Ligao City, Albay, which convicted petitioner Honesto
Ogayon of violating Sections 11 and 12, Article II of Republic Act No. 9165.[5]

The Antecedent Facts

On December 1, 2003, two Informations were filed against Ogayon for the crimes allegedly
committed as follows:

Criminal Case No. 4738:

That at about 5:20 o'clock (sic) in the morning of October 2, 2003 at Barangay Iraya,
Municipality of Guinobatan, Province of Albay, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused did then and there willfully, unlawfully and
feloniously have in his possession, custody and control four (4) pcs. of small aluminum foil, four
(4) pcs. of disposable lighter in different colors, one (1) blade trademark "Dorco," and one (1)
roll aluminum foil, instruments used or intended to be used for smoking or consuming shabu,
without authority of law, to the damage and prejudice of the public interest and welfare.[6]

Criminal Case No. 4739:

That at about 5:20 o'clock (sic) in the morning of October 2, 2003 at Barangay Iraya,
Municipality of Guinobatan, Province of Albay, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with deliberate intent to violate the law, and without
authority of law, did then and there willfully, unlawfully and feloniously have in his possession,
custody and control two (2) heat-sealed transparent plastic sachets containing 0.040 gram of
methamphetamine hydrochloride (shabu), with full knowledge that in his possession and control
is a dangerous drug, to the damage and prejudice of the public interest and welfare.[7]

During his arraignment in Criminal Case Nos. 4738 and 4739 on January 21, 2004, and March
17, 2004, respectively, Ogayon denied both charges and pleaded "not guilty." The joint pre-trial
held on May 5, 2004 yielded only one factual admission on the identity of the accused.[8] A joint
trial on the merits ensued.

The Prosecution Version

On October 2, 2003, at around 5:20 a.m., Police Chief Inspector Elmer Ferrera, together with the
other members of the Albay Provincial Police Office, proceeded to Ogayon's house in Barangay
Iraya, Guinobatan, Albay, to enforce Search Warrant No. AEK 29-2003.[9] The warrant was for
the seizure of shabu and drug paraphernalia allegedly kept and concealed in the premises of
Ogayon's house. Barangay Tanod Jose Lagana (Tanod Lagana) and Kagawad Lauro Tampocao
assisted the police team in conducting the search.[10]

Upon reaching Ogayon's house, the police team noticed several persons inside a nipa hut located
nearby. Suspecting that a pot session was about to be held, the police team restrained two of the
five persons and immediately proceeded to Ogayon's house. After introducing themselves as
police officers, Senior Police Officer Herminigildo Caritos (SPO4 Caritos) informed Ogayon
that they had a warrant to search his place. SPO4 Caritos handed a copy of the warrant to
Ogayon, who allowed the police team to conduct the search.[11]

Led by SPO4 Caritos, some members of the police team went to the comfort room located about
five meters away from Ogayon's house. When they searched the area, they found an object
(wrapped in a piece of paper with blue prints) that fell from the wooden braces of the roof. Upon
SPO4 Caritos' inspection, the paper contained two (2) small, heat-sealed transparent plastic
sachets that the police team suspected to contain shabu. The search of the comfort room also
uncovered four (4) disposable lighters, one (1) knife measuring six inches long, used aluminum
foil, one (1) roll of aluminum foil, and a "Dorco" blade.[12] SPO4 Caritos then placed his initials
on the two (2) plastic sachets before joining the rest of the police officers who were conducting a
search in Ogayon's house. The police officers who searched Ogayon's house found live
ammunition for an M-16 rifle.

After conducting the search, the police team prepared a Receipt of Property Seized.[13] The
receipt was signed by the seizing officers, representatives from the Department of Justice and the
media, and two (2) barangay officials who were present during the entire operation.[14]

The police team thereafter arrested Ogayon and the two (2) other persons who had earlier been
restrained, and brought them to Camp Simeon Ola for booking. The seized items were likewise
brought to the camp for laboratory examination. In his Chemistry Report,[15] Police
Superintendent Lorlie Arroyo (forensic chemist of the Philippine National Police Regional
Crime Laboratory) reported that the two (2) plastic sachets seized from Ogayon's place tested
positive for the presence of methamphetamine hydrochloride or shabu.[16]

The Defense Version

The defense presented a different version of the events.

Testifying for himself, Ogayon disavowed any knowledge of the prohibited drugs and claimed
that he saw the seized items for the first time only when they were being inventoried. His
statements were corroborated by the testimony of his wife, Zenaida Ogayon.

Ogayon asserted that prior to the search, he was asleep in his house. His wife Zenaida woke him
up because several policemen and barangay officials came to his house. He claimed that the
police team did not present any search warrant before conducting the search, and it was only
during trial that he saw a copy of the warrant.

He recounted that the police officers, splitting into two groups, conducted a simultaneous search
of his house and the comfort room located nearby. He noticed that SPO4 Caritos, who was part
of the group that searched the comfort room, came out and went to the Barangay Hall. Shortly
after, SPO4 Caritos returned, accompanied by TanodLagana. SPO4 Caritos again went inside the
comfort room, leaving Tanod Lagana waiting outside. SPO4 Caritos thereafter came out from the
comfort room and ran towards Ogayon's house while shouting "positive, positive."[17]
The RTC Ruling

On September 5, 2007, the RTC rendered a joint judgment convicting Ogayon of the two
criminal charges against him. Relying on the presumption of regularity, the RTC rejected
Ogayon's frame-up defense. The dispositive portion of the joint judgment reads:

WHEREFORE, under the above considerations, judgment is hereby rendered as follows:

In Criminal Case No. 4738, accused, Honesto Ogayon y Diaz is found GUILTY beyond
reasonable doubt of Violation of Section 12, Art. II, Republic Act No. 9165, known as the
"Comprehensive Dangerous Drugs Act of 2002," for his unlawful possession of drug
paraphernalia, namely: four (4) pcs. small aluminum foil, one (1) roll aluminum foil, four (4)
pcs. disposable lighters, and one (1) pc. blade; thereby sentencing him to suffer the indeterminate
penalty of imprisonment of six (6) months and one (1) day to two (2) years and to pay a FINE
often thousand pesos (P10,000.00);

In Criminal Case No. 4739, accused, Honesto Ogayon y Diaz is found GUILTY beyond
reasonable doubt of Violation of Section 11, Art. II, Republic Act No. 9165, known as the
"Comprehensive Dangerous Drugs Act of 2002," for his unlawful possession of two (2) pcs.
small heat-sealed plastic sachets containing methamphetamine hydrochloride or "shabu," with
total net weight of 0.0400 gram; thereby, sentencing him to suffer the indeterminate penalty of
imprisonment of twelve (12) years and one (1) day to fourteen (14) years and to pay a FINE of
three hundred thousand pesos (P300,000.00).[18]

Ogayon appealed to the CA. This time, he questioned the validity of the search warrant, claiming
it was improperly issued. He argued that the search warrant was defective for lack of transcript
showing that the issuing judge conducted an examination of the applicant for search warrant and
his witnesses.

The CA Ruling

In accordance with Section 5, Rule 126 of the Rules of Court, a judge must examine under oath
and in writing an applicant for search warrant and his witnesses. Although the CA found no
evidence in the records showing compliance with this requirement, it nevertheless upheld the
search warrant's validity due to Ogayon's failure to make a timely objection against the warrant
during the trial.

That Ogayon objected to the prosecution's formal offer of exhibits, which included the search
warrant, was not sufficient for the CA. Ogayon merely claimed that the chemistry report was not
executed under oath, the items were not illegal per se, and that he did not sign the Receipt of
Property Seized since he was not present when the seized items were confiscated. The CA noted
that the objections were not based on constitutional grounds, and for this reason, concluded that
Ogayon is deemed to have waived the right to question the legality of the search warrant.[19]

Based on the search warrant's validity, the CA affirmed Ogayon's conviction for possession of
drugs and drug paraphernalia. Although the comfort room was located outside Ogayon's house,
the CA declared that he exercised exclusive control over it and should rightly be held responsible
for the prohibited drugs and paraphernalia found there.

As with the RTC, the CA relied on the presumption of regularity of the police team's operation
and found Ogayon's claim of frame-up to be unsupported. The CA thus ruled that the
prosecution proved beyond reasonable doubt that Ogayon was liable for the crimes charged.

The Issues

In the present petition, Ogayon raises the following assignment of errors:

I.

The CA erred in finding that Ogayon had waived his right to question the legality of the search
warrant.

II.

Even granting without admitting that Ogayon had already waived his right to question the
legality of the search warrant, the search conducted was still highly irregular, thereby rendering
the seized articles as inadmissible in evidence.

Ogayon primarily argues that there was a violation of his constitutional right to be secure in his
person, house, papers, and effects against unreasonable searches and seizures. He denies waiving
the right through his supposed failure to assail the search warrant's validity during the trial. On
the contrary, he claims to have objected to the prosecution's formal offer of the search warrant.

Even assuming that he questioned the search warrant's validity only during appeal, Ogayon
contends that this should not be interpreted as a waiver of his right. Since an appeal in a criminal
case throws the whole case open for review, any objection made on appeal, though not raised
before the trial court, should still be considered.
Ogayon next argues that the search conducted by the police team on his premises, pursuant to an
already defective search warrant, was highly irregular. He and his spouse were in their house
when SPO4 Caritos allegedly discovered the shabu in the comfort room located outside their
house, so they were not able to witness the search. Moreover, he claimed that there were other
persons near the premises of his house (and the comfort room) when the search was conducted.
Hence, it could not indubitably be concluded that the seized items were under his actual and
effective control and possession.

The Court's Ruling

The right against unreasonable searches and seizures is one of the fundamental constitutional
rights. Section 2, Article III of the Constitution, reads:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized, [emphasis ours]

This right has been included in our Constitution since 1899 through the Malolos
Constitution[20] and has been incorporated in the various organic laws governing the Philippines
during the American colonization,[21] the 1935 Constitution,[22] and the 1973 Constitution.[23]

The protection afforded by the right is reinforced by its recognition as a fundamental human
right under the International Covenant on Civil and Political Rights and the Universal
Declaration of Human Rights,[24] to both of which the Philippines is a signatory.[25] Both the
Covenant and the Declaration recognize a person's right against arbitrary or unlawful
interference with one's privacy and property.[26]

Given the significance of this right, the courts must be vigilant in preventing its stealthy
encroachment or gradual depreciation and ensure that the safeguards put in place for its
protection are observed.

Under Section 2, Article III of the Constitution, the existence of probable cause for the issuance
of a warrant is central to the right, and its existence largely depends on the finding of the judge
conducting the examination.[27] To substantiate a finding of probable cause, the Rules of Court
specifically require that -
Rule 126, Sec. 5. Examination of complainant; record. - The judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in writing and
under oath, the complainant and the witnesses he may produce on facts personally known to
them and attach to the record their sworn statements, together with the affidavits submitted.
[emphasis ours]

Ogayon's appeal of his conviction essentially rests on his claim that the search warrant was
defective because "there was no transcript of stenographic notes of the proceedings in which the
issuing judge had allegedly propounded the required searching questions and answers in order to
determine the existence of probable cause."[28] We find that the failure to attach to the records the
depositions of the complainant and his witnesses and/or the transcript of the judge's examination,
though contrary to the Rules, does not by itself nullify the warrant. The requirement to attach is
merely a procedural rule and not a component of the right. Rules of procedure or statutory
requirements, however salutary they may be, cannot provide new constitutional requirements.[29]

Instead, what the Constitution requires is for the judge to conduct an "examination under oath or
affirmation of the complainant and the witnesses he may produce," after which he determines the
existence of probable cause for the issuance of the warrant. The examination requirement was
originally a procedural rule found in Section 98 of General Order No. 58,[30] but was elevated as
part of the guarantee of the right under the 1935 Constitution.[31] The intent was to ensure that a
warrant is issued not merely on the basis of the affidavits of the complainant and his witnesses,
but only after examination by the judge of the complainant and his witnesses. As the same
examination requirement was adopted in the present Constitution, we declared that affidavits of
the complainant and his witnesses are insufficient to establish the factual basis for probable
cause.[32] Personal examination by the judge of the applicant and his witnesses is indispensable,
and the examination should be probingand exhaustive, not merely routinary or a rehash of the
affidavits.[33]

The Solicitor General argues that the lack of depositions and transcript does not necessarily
indicate that no examination was made by the judge who issued the warrant in compliance with
the constitutional requirement. True, since in People v. Tee,[34] we declared that -

[T]he purpose of the Rules in requiring depositions to be taken is to satisfy the examining
magistrate as to the existence of probable cause. The Bill of Rights does not make it an
imperative necessity that depositions be attached to the records of an application for a search
warrant. Hence, said omission is not necessarily fatal, for as long as there is evidence on the
record showing what testimony was presented.[35]

Ideally, compliance with the examination requirement is shown by the depositions and the
transcript. In their absence, however, a warrant may still be upheld if there is evidence in the
records that the requisite examination was made and probable cause was based thereon. There
must be, in the records, particular facts and circumstances that were considered by the judge as
sufficient to make an independent evaluation of the existence of probable cause to justify the
issuance of the search warrant.[36]

The Solicitor General claims that, notwithstanding the absence of depositions and transcripts, the
records indicate an examination was conducted. In fact, a statement in the search warrant itself
attests to this:

Search Warrant

xxxx

GREETINGS:

It appearing to the satisfaction of the undersigned after examination under oath of the applicant
and his witnesses that there is probable cause to believe that respondent, without authority of
law, has under his possession and control the following articles to wit:

—Methamphetamine Hydrochloride "Shabu" and paraphernalia

which are kept and concealed in the premises of his house particularly in the kitchen and in the
CR outside his house both encircled with a red ballpen, as described in the sketch attached to the
Application for Search Warrant, located at Bgy. Iraya, Guinobatan, Albay.[37] (emphasis and
underscore ours)

Generally, a judge's determination of probable cause for the issuance of a search warrant is
accorded great deference by a reviewing court, so long as there was substantial basis for that
determination.[38] "Substantial basis means that the questions of the examining judge brought out
such facts and circumstances as would lead a reasonably discreet and prudent man to believe that
an offense has been committed, and the objects in connection with the offense sought to be
seized are in the place sought to be searched."[39]

Apart from the statement in the search warrant itself, we find nothing in the records of this case
indicating that the issuing judge personally and thoroughly examined the applicant and his
witnesses. The absence of depositions and transcripts of the examination was already admitted;
the application for the search warrant and the affidavits, although acknowledged by Ogayon
himself,[40] could not be found in the records. Unlike in Tee, where the testimony given during
trial revealed that an extensive examination of the applicant's witness was made by the judge
issuing the warrant, the testimonies given during Ogayon's trial made no reference to the
application for the search warrant. SPO4 Caritos testified that he was among those who
conducted the surveillance before the application for a search warrant was made. However, he
was not the one who applied for the warrant; in fact, he testified that he did not know who
applied for it.[41]

The records, therefore, bear no evidence from which we can infer that the requisite examination
was made, and from which the factual basis for probable cause to issue the search warrant was
derived. A search warrant must conform strictly to the constitutional requirements for its
issuance; otherwise, it is void. Based on the lack of substantial evidence that the search warrant
was issued after the requisite examination of the complainant and his witnesses was made, the
Court declares Search Warrant No. AEK 29-2003 a nullity.

The nullity of the search warrant prevents the Court from considering Ogayon's belated
objections thereto.

The CA declared that Ogayon had waived the protection of his right against unreasonable
searches and seizures due to his failure to make a timely objection against the search warrant's
validity before the trial court. It based its ruling on the procedural rule that any objections to the
legality of the search warrant should be made during the trial of the case. Section 14, Rule 126 of
the Rules of Court provides the manner to quash a search warrant or to suppress evidence
obtained thereby:

Section 14. Motion to quash a search warrant or to suppress evidence; where to file. — A motion
to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted
upon only by the court where the action has been instituted. If no criminal action has been
instituted, the motion may be filed in and resolved by the court that issued the search warrant.
However, if such court failed to resolve the motion and a criminal case is subsequently filed in
another court, the motion shall be resolved by the latter court, [emphasis ours]

We find the CA's casual treatment of a fundamental right distressing. It prioritized compliance
with a procedural rule over compliance with the safeguards for a constitutional right. Procedural
rules can neither diminish nor modify substantial rights;[42] their non-compliance should
therefore not serve to validate a warrant that was issued in disregard of the constitutional
requirements. As mentioned, the existence of probable cause determined after examination by
the judge of the complainant and his witnesses is central to the guarantee of Section 2, Article III
of the Constitution. The ends of justice are better served if the supremacy of the constitutional
right against unreasonable searches and seizures is preserved over technical rules of procedure.

Moreover, the courts should indulge every reasonable presumption against waiver of
fundamental constitutional rights; we should not presume acquiescence in the loss of
fundamental rights.[43] In People v. Decierdo,[44] the Court declared that "[wjhenever a protection
given by the Constitution is waived by the person entitled to that protection, the presumption is
always against the waiver." The relinquishment of a constitutional right has to be laid out
convincingly.

In this case, the only evidence that Ogayon waived his constitutional right was his failure to
make a timely motion during the trial to quash the warrant and to suppress the presentation of the
seized items as evidence. This failure alone, to our mind, is not a sufficient indication that
Ogayon clearly, categorically, knowingly, and intelligently made a waiver.[45] He cannot
reasonably be expected to know the warrant's defect for lack of data in the records suggesting
that defect existed. It would thus be unfair to construe Ogayon's failure to object as a waiver of
his constitutional right. In People v. Bodoso,[46] the Court noted that "[i]n criminal cases where
life, liberty and property are all at stake... The standard of waiver requires that it 'not only must
be voluntary, but must be knowing, intelligent, and done with sufficient awareness of the
relevant circumstances and likely consequences.'"

At this point, we note the purpose for the enactment of Section 14, Rule 126 of the Rules of
Court - a relatively new provision incorporated in A.M. No. 00-5-03-SC or the Revised Rules of
Criminal Procedure (effective December 1, 2000). The provision was derived from the policy
guidelines laid down by the Court in Malaloan v. Court of Appeals[47] to resolve the main issue
of where motions to quash search warrants should be filed. In other words, the provision was
"intended to resolve what is perceived as conflicting decisions on where to file a motion to quash
a search warrant or to suppress evidence seized by virtue thereof... ,"[48] It was certainly not
intended to preclude belated objections against the search warrant's validity, especially if the
grounds therefor are not immediately apparent. Thus, Malaloan instructs that "all grounds and
objections then available, existent or known shall be raised in the original or subsequent
proceedings for the quashal of the warrant, otherwise they shall be deemed waived," and that "a
motion to quash shall consequently be governed by the omnibus motion rule, provided, however,
that objections not available, existent or known during the proceedings for the quashal of the
warrant may be raised in the hearing of the motion to suppress."

A closer reading of the cases where the Court supposedly brushed aside belated objections would
reveal that the objections were disregarded because they had been cured or addressed based on
the records.

In Demaisip v. Court of Appeals,[49] the accused asserted that the search warrant was never
produced in court, thus suggesting its absence. The Court, however, noted that "there were
supposed testimonies of its existence."

In People v. Tee,[50] the accused claimed that the issuing judge failed to exhaustively examine the
complainant and his witnesses, and that the complainant's witness (a National Bureau of
Intelligence operative) had no personal knowledge of the facts comprising probable cause, but
the Court brushed these claims aside. It found that the witness' knowledge of the facts supporting
probable case was not based on hearsay as he himself assisted the accused in handling the
contraband, and that the issuing judge extensively questioned this witness.

In People v. Torres,[51] the accused assailed the validity of the search conducted pursuant to a
search warrant as it was supposedly made without the presence of at least two witnesses, but the
Court found otherwise, citing the testimonies taken during the trial contradicting this claim. A
similar objection was made by the accused in People v. Nuñez[52], but the Court noted the
testimony of the officer conducting the search who stated that it was made in the presence of the
accused himself and two barangay officials.

The rulings in Malaloan v. Court of Appeals,[53] People v. Court of Appeals,[54] and People v.
Correa[55] are without significance to the present case. As mentioned, Malaloan v. Court of
Appeals involved the question of where motions to quash search warrants should be filed, and
the guidelines set therein was applied in People v. Court of Appeals. People v. Correa, on the
other hand, involved a warrantless search of a moving vehicle.

We reiterate that the requirement to raise objections against search warrants during trial is a
procedural rule established by jurisprudence. Compliance or noncompliance with this
requirement cannot in any way diminish the constitutional guarantee that a search warrant should
be issued upon a finding of probable cause. Ogayon's failure to make a timely objection cannot
serve to cure the inherent defect of the warrant. To uphold the validity of the void warrant would
be to disregard one of the most fundamental rights guaranteed in our Constitution.

In the light of the nullity of Search Warrant No. AEK 29-2003, the search conducted on its
authority is likewise null and void. Under the Constitution, any evidence obtained in violation of
a person's right against unreasonable searches and seizures shall be inadmissible for any purpose
in any proceeding.[56] With the inadmissibility of the drugs seized from Ogayon's home, there is
no more evidence to support his conviction. Thus, we see no reason to further discuss the other
issues raised in this petition.

WHEREFORE, under these premises, the Decision dated March 31, 2009, and the Resolution
dated July 10, 2009, of the Court of Appeals in CA-G.R. CR No. 31154
are REVERSED and SET ASIDE. Accordingly, the judgment of conviction, as stated in the joint
judgment dated September 5, 2007, of the Regional Trial Court, Branch 12, Ligao City, Albay,
in Criminal Case Nos. 4738 and 4739, is REVERSED and SET ASIDE, and
petitioner HONESTO OGAYON y DIAZ is ACQUITTED of the criminal charges against him
for violation of Republic Act No. 9165.
SO ORDERED.

Carpio, (Chairperson), Del Castillo, Perlas-Bernabe,* and Leonen, JJ., concur.

SECOND DIVISION

[ G.R. No. 214883, September 02, 2015 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. CRISTINA SAMSON,

ACCUSED-APPELLANT.

DECISION

MENDOZA, J.:

For review in this appeal is the May 6, 2014 Decision[1] of the Court of Appeals (CA) in CA-
G.R. CR HC No. 05832, which affirmed the September 27, 2012 Decision[2] of the Regional
Trial Court, Branch 65, Tarlac City (RTC) in Criminal Case No. 12285, convicting accused-
appellant Cristina Samson (Cristina) for parricide committed against her husband, Gerry Delmar
(Gerry), and sentencing her to suffer the penalty of reclusion perpetua.

The Antecedents

On August 14, 2002, Cristina was charged with the crime of Parricide, defined and penalized
under Article 246 of the Revised Penal Code (RPC). The Information articulates the following
criminal charges, viz:

That on or about the 27th day of June, 2002 in Tarlac City, Philippines and within the jurisdiction
of this Honorable Court, said accused, willfully, unlawfully and feloniously and with intent to
kill her husband Gerry Delmar, with whom she was united in lawful wedlock, armed herself with
a deadly weapon, a knife, and stabbed said Gerry Delmar on his chest, which resulted to his
death.

CONTRARY TO LAW.[3]

When arraigned almost four (4) years later, Cristina entered a plea of not guilty. Thereafter, trial
on the merits ensued with the parties agreeing to a reverse trial on account of her invocation of
the justifying circumstance of self-defense.

Version of the Defense

The version of Cristina appears in the Brief for the Accused-Appellant[4] as follows:
On June 27, 2002, CRISTINA SAMSON (Cristina) was in their house watching television
together with her children when her husband, Gerry Delmar (Gerry), who was drunk at that time,
arrived. Gerry asked Cristina if she had cooked food already but the latter answered in the
negative because she had no money to buy food. Gerry scolded and uttered words against her,
and then slapped her. They had an altercation for about ten (10) minutes when Cristina's father
arrived and pacified them. Gerry left but after thirty (30) minutes, he returned. He pointed a knife
at Cristina's neck. The latter begged Gerry not to hurt her and to pity their children if something
happens to her. Gerry continued pointing the knife and told Cristina to stop talking or otherwise,
he will put a hole in her neck. Then, Gerry slapped Cristina's face twice. While Gerry was still
holding the knife, Cristina pushed him and he fell on the ground. She took the knife which Gerry
was holding and begged him not to come near her. She was holding the knife near her chest
pointed at Gerry when he suddenly grabbed her and that was the time that the knife went in
contact with his chest. When she saw her husband bloodied, she shouted for help and her father
(Rodolfo Samson) and brother (Allan Samson) came and brought Gerry to the hospital. Her
relatives told her that Gerry died in the hospital. (TSN, September 6, 2006, pp. 14-27)

On June 27, 2002, ALLAN SAMSON (Allan) was at home watching television with his father.
He heard yelling and shouting from the house of his sister Cristina and brother-in-law Gerry.
Since it was just ordinary for him to hear his sister and brother-in-law fight, he and his father just
ignored it. After fifteen (15) minutes of listening to their quarrel, they heard Cristina cry for help.
Upon hearing this, he immediately went to the house of his sister and saw her holding Gerry and
she requested him and his father to bring Gerry to the hospital. They called a tricycle and he,
together with his father, brought Gerry to Talon General Hospital. The doctor, however, declared
that Gerry was already dead. Then, the tanod arrives and Allan instructed the tanod to call the
siblings and relatives of Gerry. When the relatives arrived, they went home. (TSN, November
18, 2006, pp. 4-6)[5]

Version of the Prosecution

In its Brief for the Appellee,[6] the Office of the Solicitor General (OSG) provided the following
as its Counter-Statement of Facts:

On January 25, 1994, appellant Cristina Samson and victim Jerry Delmar were married. They
were blessed with two (2) daughters namely Christine and Cherrie Lou. The couple lived in their
own house which is just adjacent to the house of appellant's family. The union of the two was
never a peaceful one. Constant quarrels filled their household and occurred in front of their
children and other relatives.

On June 27, 2002, appellant and the victim had one of their usual fights. As testified by appellant
herself, she and her two children were watching television in their home when the victim arrived
drunk. Victim asked for his dinner but appellant was not able to cook food which led to the fight.
Christine, the youngest daughter of the appellant and the victim, narrated that she witnessed the
fight between her parents, that as the fight escalated, appellant was able to get hold of the knife
which was placed on the roof and stabbed the victim. The victim fell on the ground and crawled
until he reached the door. Cristine remembered that people arrived in their home, helped the
victim board a tricycle and brought him to the hospital. Appellant, on the other hand, ran out and
went to her father and asked for money and left. That was the last night that Christine and Cherry
Lou saw their mother.[7]

The Ruling of the RTC

In its September 27, 2012 Decision, the RTC found the proffered self-defense of Cristina to be
untenable. In its view, there was no longer any threat to her life before she stabbed her husband
Gerry. Though there was an existent danger as there was an altercation before the stabbing
incident, the imminence of such danger ceased when, as admitted by her, Gerry already put down
the knife. The RTC even concluded that it was she who provoked him when she suddenly pushed
him to the ground. She then took the knife and told him not to come near her. When he grabbed
her, she stabbed him. After she took hold of the knife, there was no longer any unlawful
aggression to speak of that would necessitate the need to kill Gerry.[8] Thus, the decretal portion
of the RTC decision reads in this wise:

WHEREFORE, finding accused CRISTINA SAMSON guilty beyond reasonable doubt of the
felony of Parricide defined and penalized under Article 246 of the Revised Penal Code,
accused CRISTINA SAMSON is hereby sentenced to suffer a penalty of "Reclusion Perpetua"
pursuant to R.A. 9346 (An Act Prohibiting the Imposition of Death Penalty in the Philippines).

Accused is also ordered to indemnify the heirs of the victim, Christine S. Delmar and Cherrie Lo
S. Delmar the amount of P75,000.00 as civil indemnity, P75,000.00 as moral damages,
P30,000.00 as exemplary damages and costs of suit.

SO ORDERED.[9]

The Ruling of the CA

The CA affirmed the ruling of the RTC. It stated that although there could have been an unlawful
aggression at the start when Gerry repeatedly slapped Cristina and held a knife at her throat, it
already disappeared when he put down the knife. According to the CA, it was this precise act
that gave Cristina the opportunity to push her husband and gain control of the knife. Moreover,
the fact that she fled and evaded arrest for four (4) years contradicted her claim of
innocence.[10] The CA disposed as follows:

WHEREFORE, the Decision dated September 27, 2012 of the RTC, Branch 65, Tarlac City in
Criminal Case No. 12285, finding accused-appellant guilty beyond reasonable doubt of the crime
of parricide and sentencing her to reclusion perpetua and to pay damages and the cost of suit,
is AFFIRMED.

SO ORDERED.[11]

Hence, this appeal.

ISSUE

The sole issue to be resolved in this appeal is whether or not the CA erred in not appreciating the
justifying circumstance of self-defense in favor of Cristina.

Let it be underscored that appeal in criminal cases throws the whole case open for review and it
is the duty of the appellate court to correct, cite and appreciate errors in the appealed judgment
whether they are assigned or unassigned.[12] Considering that what is at stake here is no less than
the liberty of the accused, this Court has meticulously and thoroughly reviewed and examined
the records of the case and finds that there is merit in her appeal.

There appears to be a conflict between the testimony of Cristina and her daughter, Christine
Delmar (Christine). Cristina claimed that she got the knife from her husband who fell down after
she pushed him. After taking possession of the deadly weapon, she told her husband not to come
near her. She was holding the knife near her chest and pointed towards him when he suddenly
grabbed her and that was the time that the knife went in contact with her husband's chest.

Christine, however, perceived it differently. According to her, she witnessed the fight between
her parents. She narrated that as the fight escalated, her mother was able to get hold of a knife,
which was inserted in the roof, and used it in stabbing her father.

Both the RTC and the CA believed the version of Cristina, but both were of the view that before
she stabbed her husband, there was no more imminent danger to her life. For said reason, her
fatal stabbing of her husband was not justified.

The Court's Ruling

Self-defense, when invoked as a justifying circumstance, implies the admission by the accused
that he committed the criminal act. Generally, the burden lies upon the prosecution to prove the
guilt of the accused beyond reasonable doubt rather than upon the accused that he was in fact
innocent. When the accused, however, admits killing the victim, it is incumbent upon him to
prove any claimed justifying circumstance by clear and convincing evidence.[13]Well-settled is
the rule that in criminal cases, self-defense shifts the burden of proof from the prosecution to the
defense.[14]

To invoke self-defense, in order to escape criminal liability, it is incumbent upon the accused to
prove by clear and convincing evidence the concurrence of the following requisites under the
second paragraph of Article 11 of the RPC, viz: (1) unlawful aggression; (2) reasonable necessity
of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of
the person defending himself.[15]

Presence of Unlawful Aggression even if Aggressor was Disarmed

Among the requisites of self-defense, the most important that needs to be proved by the accused,
for it to prosper, is the element of unlawful aggression. It must be proven first in order for self-
defense to be successfully pleaded. There can be no self-defense, whether complete or
incomplete, unless the victim had committed unlawful aggression against the person who
resorted to self-defense.[16] When the Court speaks of unlawful aggression, it is an actual
physical assault, or at least a threat to inflict real imminent injury, upon a person. There is an
unlawful aggression on the part of the victim when he puts the life, limb, or right of the person
invoking self-defense in actual or imminent danger. There must be actual physical force or actual
use of a weapon. It is present only when the one attacked faces real and immediate threat to his
life. It must be continuous, otherwise, it does not constitute aggression warranting self-
defense.[17]

The question now is: was there unlawful aggression when Cristina killed her husband?

The Court answers in the affirmative.

The Court hesitates to share the observation of the RTC and the CA that Cristina failed to
discharge the burden of proving that unlawful aggression was present when she killed her
husband.

Contrary to the conclusion of the CA that Gerry's aggression had already ceased when he was
disarmed, it is the Court's view that the aggression still continued. Her perceived peril to her life
continued and persisted until she put an end to it.

It must be noted that after she was able to take hold of the knife from her husband, he did not
stand down but, instead, continued to move towards her despite her plea that he should not come
nearer. He grabbed her by the arm which could have precipitated her well-grounded belief that
her life was still in danger if he would be able to wrest the weapon from her. It was not
farfetched to presume that, being stronger, he could have easily overpowered her and eventually
killed her.
A similar situation was presented in the case of People v. Rabandaban[18] (Rabandaban),
wherein the Court ruled that despite the fact that the accused succeeded in wresting the bolo from
his wife, he was still justified in using the weapon against her because his life was still in danger.
The Court explained:

xxx When appellant got possession of the bolo he already must have been in a precarious
condition because of his wounds, one of which was described by the sanitary inspector as "fatal"
since the large intestine came out of it. And appellant, we think, was justified in believing that
his wife wanted to finish him off because, according to the evidence, she struggled to regain
possession of the bolo after he had succeeded in wresting it from her. With the aggressor still
unsubdued and showing determination to fight to the finish, it would have been folly on the part
of appellant, who must already have been losing strength due to loss of blood, to throw away the
bolo and thus give his adversary a chance to pick it up and again use it against him. Having the
right to protect his life, appellant was not in duty bound to expose himself to such a
contingency.[19]

[Emphases Supplied]

In Rabandaban, the victim, instead of running away from the accused husband after the bolo was
wrested from her, continued to struggle with him to regain possession of the bolo. This fact,
together with her husband's compromised condition, being already badly wounded, justified him
in finally neutralizing his wife who was then determined in putting an end to his life. In the case
at bench, the unlawful aggression would have ceased if he just walked away from the scene
considering that Cristina had gained the upper hand, being the one in possession of the knife.
Instead, Gerry chose to ignore her plea not to come near her and continued moving towards her
without regard to his safety despite the fact that the knife was pointed towards his direction.

In both Rabandaban and the present case, the victims, despite having been disarmed, still posed
a threat to the lives of the accused. The danger to their lives persisted leaving them with no other
choice but to defend themselves lest they be the ones to be victimized.

In that situation, Cristina had reasons to believe that her life was still in danger. It is to be noted
that before she was able to take hold of the weapon, her husband held the same knife and pointed
it at her throat. So when he, who was taller and stronger, approached her and grabbed her by the
arm, it was instinctive for her to take the extreme precautionary measure by stabbing him before
he could get back the knife and make good his earlier threat of putting a hole in her throat.

Contrary to the trial court's assessment, she did not show aggression towards her husband when
she pushed him after he pointed the knife away from her. She was, in fact, manifesting a passive
attitude towards him when she just stood her ground, with the knife in hand, asking him not to
come near her.[20]
It would have been a different story if Gerry, after dropping the knife, walked away and Cristina
still went after him. If that were the case, she could not assert self-defense. She was no longer
acting in self-defense but in retaliation for the earlier aggression. Retaliation is inconsistent with
self-defense and in fact belies it. In retaliation, the aggression that was begun by the injured party
already ceased when the accused attacked him; while in self-defense the aggression still existed
when the aggressor was injured by the accused.[21]

Now that unlawful aggression has already been established, it is well to consider the other two
requisites in order to determine whether the self-defense is complete or incomplete.

Reasonable Necessity of the Means Employed

The requisite of reasonable necessity of the means employed is met if the person invoking self-
defense used a weapon or a manner equivalent to the means of attack used by the aggressor. The
reasonable necessity of the self-defense utilized by an accused is to defend himself "depends
upon the nature or quality of the weapon, the physical condition, the character, the size and other
circumstances of the aggressor; as well as those of the person who invokes self-defense; and also
the place and the occasion of the assault."[22] Moreover, the nature and location of wounds are
considered important indicators whether or not to disprove a plea of self-defense.[23]

In the case at bench, the lone stab wound located on the victim's chest supports the argument that
Cristina feared for her life and this fear impelled her to defend it by stabbing him. It was a
reasonable means chosen by her in view of the attending circumstances, to wit: that her stronger
husband, who had earlier pointed the said knife to her throat, approached her and grabbed her
arm, despite her plea that he refrain from coming near her; and that she had no other available
means or any less deadly weapon to repel the threat other than the knife in her hand. She did not
have the time or sufficient tranquillity of mind to think, calculate and choose the weapon to be
used. In predicaments like this, human nature does not act upon the processes of formal reason
but in obedience to the instinct of self-preservation.[24] When it is apparent that a person has
reasonably acted upon this instinct, it is the duty of the courts to sanction that act or to mitigate
his liability.[25]

Moreover, the fact that Gerry was no longer armed does not negate the reasonableness of the
means employed by Cristina. Perfect equality between the weapon used by the one defending
himself and that of the aggressor is not required.[26] What the law requires is a rational
equivalence, in the consideration of which will enter as principal factors the emergency, the
imminent danger to which the accused is exposed, and the instinct more than reason, that moves
or impels his defense; and the proportionateness thereof does not depend upon the harm done,
but upon the imminent danger of such injury.[27]
Lack of Sufficient Provocation

The last requisite to be considered is lack of sufficient provocation on the part of the person
defending himself. The Court cannot sustain the trial court's observation that it was Cristina who
provoked her husband when she suddenly pushed him. Her shoving him cannot be considered a
sufficient provocation proportionate to the act of aggression.[28] She merely capitalized on a
window of opportunity, when her husband removed the knife away from her throat, to save
herself from what she had perceived to be a danger to her life. Anybody, in her situation would
have acted in the same reasonable way.

Flight as an Indication of Guilt or Non-guilt

The CA took the fact of Cristina's flight and evasion of arrest for four (4) years against her. To
the appellate court, it belied her claim of innocence.

Under the attendant circumstances, the Court cannot subscribe to that view.

Generally, flight, in the absence of a credible explanation, would be a circumstance from which
an inference of guilt might be established, for a truly innocent person would normally grasp the
first available opportunity to defend himself and assert his innocence.[29] It has been held,
however, that non-flight may not be construed as an indication of innocence either. There is no
law or dictum holding that staying put is proof of innocence, for the Court is not blind to the
cunning ways of a wolf which, after a kill, may feign innocence and choose not to flee.[30] In
Cristina's case, she explained that she took flight for fear of her safety because of possible
retaliation from her husband's siblings.[31]The Court finds such reason for her choice to flee
acceptable. She did not hide from the law but from those who would possibly do her harm.

The RTC and the CA might have some hesitation in accepting her explanation for her choice of
action. Nevertheless, under the circumstances, a cloud of uncertainty lingers. In such a case, it is
the duty of the Court to resolve the doubt in favor of the accused.

Considering that Cristina was justified in killing her husband under Article 11, paragraph 1 of the
RPC, she should be exonerated of the crime charged. For the same reason, the Court finds no act
or omission from which a civil liability may arise.

WHEREFORE, the appeal is GRANTED. The May 6, 2014 Decision of the Court of Appeals, in
CA-G.R. CR HC No. 05832, is REVERSED and SET ASIDE. The accused-appellant, Cristina
Samson, is ACQUITTED of the crime charged.
Let a copy of this Decision be furnished the Superintendent, Correctional Institution for Women,
Mandaluyong City. The Superintendent is DIRECTED to cause the immediate release of
appellant, unless she is being lawfully held for another cause and to report the action she has
taken within five (5) days from receipt of this Decision.

SO ORDERED.

Carpio, (Chairperson), Brion, Del Castillo, and Leonen, JJ., concur.

SECOND DIVISION

[ G.R. No. 182534, September 02, 2015 ]

ONGCOMA HADJI HOMAR, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,

RESPONDENT.

DECISION

BRION, J.:

Before the Court is a petition for review on certiorari filed by Ongcoma Hadji Homar
(petitioner) seeking the reversal of the Decision[1] of the Court of Appeals (CA) dated January
10, 2008, and its Resolution dated April 11, 2008 in CA-G.R. CR No. 29364. These assailed CA
rulings affirmed the decision of the Regional Trial Court (RTC) of Parañaque City, Branch 259
in Criminal Case No. 02-0986 which convicted the petitioner for violation of Republic Act (RA)
No. 9165 entitled "An Act Instituting the Comprehensive Dangerous Drugs Act of 2002."

The Factual Antecedents

The petitioner was charged for violation of Section 11, Article II[2] of RA 9165. The Information
states that on or about August 20, 2002, the petitioner was found to possess one heat-sealed
transparent plastic sachet containing 0.03 grams of methylamphetamine hydrochloride, otherwise
known as shabu. The petitioner pleaded not guilty during arraignment.[3]

PO1 Eric Tan (Tan) was the lone witness for the prosecution. As stated in the RTC decision, he
testified that on August 20, 2002, at around 8:50 in the evening, their Chief, P/Chief Supt.
Alfredo C. Valdez, ordered him and civilian agent (C/A) Ronald Tangcoy (Tangcoy) to go to the
South Wing, Roxas Boulevard. While proceeding to the area onboard a mobile hunter, they saw
the petitioner crossing a "No Jaywalking" portion of Roxas Boulevard. They immediately
accosted him and told him to cross at the pedestrian crossing area.

The petitioner picked up something from the ground, prompting Tangcoy to frisk him resulting
in the recovery of a knife. Thereafter, Tangcoy conducted a thorough search on the petitioner's
body and found and confiscated a plastic sachet containing what he suspected as shabu. Tangcoy
and Tan executed a sinumpaang salaysay on the incident.[4]

The petitioner was the sole witness for the defense.[5] He testified that on August 20, 2002, he
was going home at around 6:30 p.m. after selling imitation sunglasses and other accessories at
the BERMA Shopping Center. After crossing the overpass, a policeman and a civilian stopped
and frisked him despite his refusal. They poked a gun at him, accused him of being a holdupper,
and forced him to go with them. They also confiscated the kitchen knife, which he carried to cut
cords. He was likewise investigated for alleged possession of shabu and detained for one day. He
was criminally charged before the Metropolitan Trial Court of Parañaque City, Branch 77 for the
possession of the kitchen knife but he was eventually acquitted.[6]

The RTC's Ruling

The RTC convicted the petitioner. It ruled that PO1 Tan and C/A Tangcoy were presumed to
have performed their duties regularly in arresting and conducting a search on the petitioner. The
RTC also noted that PO1 Eric Tan was straightforward in giving his testimony and he did not
show any ill motive in arresting the petitioner.[7]

The RTC also did not believe the petitioner's defense of denial and ruled that it is a common and
standard defense ploy in most prosecutions in dangerous drugs cases. This defense is weak
especially when it is not substantiated by clear and convincing evidence as in this case.[8]

The petitioner filed an appeal with the CA.

The CA's ruling

The CA dismissed the petition and affirmed the RTC's findings.

According to the CA, Section 5, paragraph (a) of Rule 113 of the Revised Rules of Criminal
Procedure enumerates the circumstances when a warrantless arrest is legal, valid, and proper.
One of these is when the person to be arrested has committed, is actually committing, or is
attempting to commit an offense in the presence of a peace officer or a private person. In the
present case, the petitioner committed jaywalking in the presence of PO1 Tan and C/A Tangcoy;
hence, his warrantless arrest for jaywalking was lawful.[9]

Consequently, the subsequent frisking and search done on the petitioner's body which produced
the knife and the shabu were incident to a lawful arrest allowed under Section 13, Rule 126 of
the Revised Rules of Criminal Procedure.[10]
The CA likewise ruled that PO1 Tan[11] clearly showed that the petitioner was caught in
flagrante delicto in possession of shabu.[12]

The petitioner filed a motion for reconsideration which was denied by the CA.[13] Hence, this
appeal.

The Petitioner's Position

The petitioner argues that the CA erred in affirming his conviction on the following grounds:

First, the shabu, which was allegedly recovered from the petitioner, is inadmissible as evidence
because it was obtained as a result of his unlawful arrest and in violation of his right against
unreasonable search and seizure. The petitioner has not committed, was not committing and was
not attempting to commit any crime at the time of his arrest. In fact, no report or criminal charge
was filed against him for the alleged jaywalking.[14]

Second, assuming for the sake of argument that there was a valid arrest, Section 13, Rule 126 of
the Revised Rules of Criminal Procedure permits a search that is directed only upon dangerous
weapons or "anything which may have been used or constitute proof in the commission of an
offense without a warrant." In the present case, the offense, for which the petitioner was
allegedly caught in flagrante delicto, is jaywalking. The alleged confiscated drug has nothing to
do with the offense of jaywalking.[15]

Finally, the non-presentation of Tangcoy, who allegedly recovered the shabu from the petitioner,
renders the prosecution's evidence weak and uncorroborated. Consequently, the sole testimony of
Tan cannot sustain the petitioner's conviction beyond reasonable doubt.

The Respondent's Position

In his Comment, the respondent argues that the guilt of the petitioner was conclusively
established beyond reasonable doubt.[16] He reiterates that the warrantless frisking and search on
the petitioner's body was an incident to a lawful warrantless arrest for jaywalking.[17] The non-
filing of a criminal charge of jaywalking against the petitioner does not render his arrest
invalid.[18]

The respondent also assails the petitioner's defense that the shabu is inadmissible as evidence.
According to the respondent, the petitioner can no longer question his arrest after voluntarily
submitting himself to the jurisdiction of the trial court when he entered his plea of not guilty and
when he testified in court.[19]
The Court's Ruling

We find the petition meritorious.

The prosecution failed to prove that a lawful warrantless arrest preceded the search conducted on
the petitioner's body.

The Constitution guarantees the right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures. Any evidence obtained in violation of
these rights shall be inadmissible for any purpose in any proceeding. While the power to search
and seize may at times be necessary to the public welfare, the exercise of this power and the
implementation of the law should not violate the constitutional rights of the citizens.[20]

To determine the admissibility of the seized drugs in evidence, it is indispensable to ascertain

whether or not the search which yielded the alleged contraband was lawful.[21] There must be a
valid warrantless search and seizure pursuant to an equally valid warrantless arrest, which must
precede the search. For this purpose, the law requires that there be first a lawful arrest before a
search can be made — the process cannot be reversed.[22]

Section 5, Rule 113[23] of the Revised Rules of Criminal Procedure provides the only occasions
when a person may be lawfully arrested without a warrant. In the present case, the respondent
alleged that the petitioner's warrantless arrest was due to his commission of jaywalking in
flagrante delicto and in the presence of Tan and Tangcoy.

To constitute a valid in flagrante delicto arrest, two requisites must concur: (1) the person to be
arrested must execute an overt act indicating that he has just committed, is actually committing,
or is attempting to commit a crime; and (2) such overt act is done in the presence of or within the
view of the arresting officer.[24]

The prosecution has the burden to prove the legality of the warrantless arrest from which
the corpus delicti of the crime - shabu - was obtained. For, without a valid warrantless arrest, the
alleged confiscation of the shabu resulting from a warrantless search on the petitioner's body is
surely a violation of his constitutional right against unlawful search and seizure. As a
consequence, the alleged shabu shall be inadmissible as evidence against him.

On this point, we find that aside from the bare testimony of Tan as quoted by the CA in its
decision, the prosecution did not proffer any other proof to establish that the requirements for a
valid in flagrante delicto arrest were complied with. Particularly, the prosecution failed to prove
that the petitioner was committing a crime.
The respondent failed to specifically identify the area where the petitioner allegedly crossed.
Thus, Tan merely stated that the petitioner "crossed the street of Roxas Boulevard, in a place not
designated for crossing." Aside from this conclusion, the respondent failed to prove that the
portion of Roxas Boulevard where the petitioner crossed was indeed a "no jaywalking" area. The
petitioner was also not charged of jaywalking. These are pieces of evidence that could have
supported the conclusion that indeed the petitioner was committing a crime of jaywalking and
therefore, the subsequent arrest and search on his person was valid. Unfortunately, the
prosecution failed to prove this in the present case.

We clarify, however, that the filing of a criminal charge is not a condition precedent to prove a
valid warrantless arrest. Even if there is a criminal charge against an accused, the prosecution is
not relieved from its burden to prove that there was indeed a valid warrantless arrest preceding
the warrantless search that produced the corpus delicti of the crime.

Neither can the presumption of regularity in the performance of official duty save the
prosecution's lack of evidence to prove the warrantless arrest and search. This presumption
cannot overcome the presumption of innocence or constitute proof of guilt beyond reasonable
doubt. Among the constitutional rights enjoyed by an accused, the most primordial yet often
disregarded is the presumption of innocence. This elementary principle accords every accused
the right to be presumed innocent until the contrary is proven beyond reasonable doubt; and the
burden of proving the guilt of the accused rests upon the prosecution.[25]

It may not be amiss to point out also the contrary observation of the Court as regards the findings
of the RTC when it held, rather hastily, that in the process of accosting the petitioner for
jaywalking, Tangcoy recovered from his possession a knife and a small plastic sachet
containing shabu[26] The testimony of Tan, as quoted in the CA decision, and the findings of the
RTC, cast doubt on whether Tan and Tangcoy intended to arrest the petitioner for jaywalking.

Arrest is the taking of a person into custody in order that he or she may be bound to answer for
the commission of an offense. It is effected by an actual restraint of the person to be arrested or
by that person's voluntary submission to the custody of the one making the arrest. Neither the
application of actual force, manual touching of the body, or physical restraint, nor a formal
declaration of arrest, is required. It is enough that there be an intention on the part of one of the
parties to arrest the other, and that there be an intent on the part of the other to submit, under the
belief and impression that submission is necessary.[27]

The pertinent testimony[28] of Tan, as quoted by the CA, is as follows:

Q: What happened after you obeyed the order of your immediate superior?
A: At 8:50 in the evening of August 20, 2002, we saw a male person crossed the street of
Roxas Boulevard, in a place not designated for crossing.

Q: What did you do when you saw this person crossed the street of Roxas Boulevard, in a place
not designated for crossing?

A: We accosted him.

Q: How did you accost that person?

A: We accosted him and pointed to him the right place for crossing. Pero napansin namin
siya na parang may kinukuha, so he was frisked by Ronald Tangcoy and a knife was
recovered from his possession.

Q: After a knife was recovered by your companions (sic) from that person who allegedly
crossed the wrong side of the street, what happened after that?

A: After recovering the knife, nakaalalay lang ako and he was frisked again by Tangcoy and
a plastic sachet was recovered from his possession.

Q: Did you know the contents of that plastic sachet which your companion recovered from that
person who crossed the wrong side of the street?

A: Yes, sir.

Q: What about the contents?

A: Suspected shabu or methylamphetamine hydrochloride.

Q: After the drug was recovered from the possession of that man, what did you do?

A: We brought him to our precinct and informed him of his constitutional rights and
brought him to the Parañaque Community Hospital and the suspected shabu or
methylamphetamine was brought to the PNP Crime Lab at Fort Bonifacio.

Q: Did you come to know the name of that person whom you arrested in the morning of
August 20, 2002?

A: Yes, sir.

Q: What is his name?

A: Ongcoma Hadji Omar, sir.

Q: Is he the same Ongcoma Hadji Omar y Para, the accused in this case?

A: Yes, sir.

[emphasis and underscoring supplied]

Clearly, no arrest preceded the search on the person of the petitioner. When Tan and Tangcoy
allegedly saw the petitioner jaywalking, they did not arrest him but accosted him and pointed to
him the right place for crossing. In fact, according to the RTC, Tan and Tangcoy "immediately
accosted him and told him to cross [at] the designated area."[29]

Tan and Tangcoy did not intend to bring the petitioner under custody or to restrain his liberty.
This lack of intent to arrest him was bolstered by the fact that there was no criminal charge that
was filed against the petitioner for crossing a "no jaywalking" area.

From Tan's testimony, the intent to arrest the petitioner only came after they allegedly
confiscated the shabu from the petitioner, for which they informed him of his constitutional
rights and brought him to the police station.
The indispensability of the intent to arrest an accused in a warrantless search incident to a lawful
arrest was emphasized in Luz vs. People of the Philippines.[30] The Court held that
the shabu confiscated from the accused in that case was inadmissible as evidence when the
police officer who flagged him for traffic violation had no intent to arrest him. According to the
Court, due to the lack of intent to arrest, the subsequent search was unlawful. This is
notwithstanding the fact that the accused, being caught in flagrante delicto for violating an
ordinance, could have been therefore lawfully stopped or arrested by the apprehending officers.

In the light of the discussion above, the respondent's argument that there was a lawful search
incident to a lawful warrantless arrest for jaywalking appears to be an afterthought in order to
justify a warrantless search conducted on the person of the petitioner. In fact, the illegality of the
search for the shabu is further highlighted when it was not recovered immediately after the
alleged lawful arrest, if there was any, but only after the initial search resulted in the recovery of
the knife. Thereafter, according to Tan, Tangcoy conducted another search on the person of the
petitioner resulting in the alleged confiscation of the shabu. Clearly, the petitioner's right to be
secure in his person was callously brushed aside twice by the arresting police officers.[31]

The waiver of an illegal warrantless arrest does not also mean a waiver of the inadmissibility of
evidence seized during an illegal warrantless arrest.

We agree with the respondent that the petitioner did not timely object to the irregularity of his
arrest before his arraignment as required by the Rules. In addition, he actively participated in the
trial of the case. As a result, the petitioner is deemed to have submitted to the jurisdiction of the
trial court, thereby curing any defect in his arrest.

However, this waiver to question an illegal arrest only affects the jurisdiction of the court over
his person. It is well-settled that a waiver of an illegal, warrantless arrest does not carry with it a
waiver of the inadmissibility of evidence seized during an illegal warrantless arrest.[32]

Since the shabu was seized during an illegal arrest, its inadmissibility as evidence precludes
conviction and justifies the acquittal of the petitioner.

WHEREFORE, we GRANT the petition and REVERSE and SET ASIDE the Decision of the
Court of Appeals dated January 10, 2008, and its Resolution dated April 11, 2008 in CA-G.R.
CR No. 29364. Petitioner ONGCOMA HADJI HOMAR is ACQUITTED and ordered
immediately RELEASED from detention, unless he is confined for any other lawful cause.

SO ORDERED.

Carpio, (Chairperson), Del Castillo, Mendoza, and Leonen, JJ., concur.

FIRST DIVISION

[ G.R. No. 203313, September 02, 2015 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROBERTO HIDALGO, DON

JUAN HIDALGO AND MICHAEL BOMBASI ALIAS "KABAYAN"(AT LARGE), ACCUSED,
ROBERTO HIDALGO, ACCUSED-APPELLANT.

RESOLUTION

PEREZ, J.:

This is an appeal from the Decision[1] of the Court of Appeals (Cebu City) dated 4 August 2011
in CA-G.R. CR-H.C. No. 00545, which affirmed with modifications the Amended
Decision[2] dated 31 January 2003 of the Regional Trial Court (RTC), Branch 7, Tacloban City in
Criminal Cases No. 2000-06-363; No. 2000-06-364 and No. 2000-06-365 finding accused
Roberto Hidalgo and Don Juan Hidalgo guilty of three (3) counts of simple rape in violation of
Republic Act No. 8353 (R.A. No. 8353) or the "Anti-Rape Law of 1997."

On 28 April 2000, three (3) sets of Information were filed against Roberto Hidalgo (Roberto), his
sixteen-year-old son Don Juan Hidalgo (Don Juan), and Michael Bombasi alias "Kabayan"
(Bombasi) for three counts of rape against AAA.[3]

For Criminal Case No. 2000-06-363

That on or about the 30th day of January, 2000 in the Municipality of Santa Fe, Province of
Leyte, Philippines, and within the jurisdiction of this Flonorable Court, the above-named
accused, conspiring, confederating together and mutually helping one another, with lewd design
and with the use of force upon the thirteen-year-old AAA, a house help of accused Roberto
Hidalgo, did, then and there, wilfully, unlawfully and feloniously perform the following acts, to
[wit]: accused Roberto Hidalgo succeeded in having carnal knowledge of the said AAA without
her consent and against her will, after co-accused Don Juan Hidalgo and Michael Bombasi, alias
"Kabayan" participated in the commission of the crime by touching her private parts.

Contrary to law, with the aggravating circumstance that the offehded party is only (13) years old
and the offender Roberto Hidalgo is her guardian.[4]

For Criminal Case No. 2000-06-364

That on or about the 30th day of January, 2000 in the Municipality of Santa Fe, Province of
Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together[,] and mutually helping one another, with lewd
design and with the use of force upon the thirteen-year-old AAA, a househelp of accused
Roberto Hidalgo, did, then and there, willfully, unlawfully and feloniously perform the following
acts, to wit: accused Don Juan Hidalgo succeeded in having carnal knowledge of the said AAA
without her consent and against her will, after co-accused Roberto Hidalgo tied her hands and
mouth and Michael Bombasi, alias "Kabayan" touched her private parts.

Contrary to law, with the aggravating circumstance that the offended party is only (13) years old
and the offender Roberto Hidalgo is her guardian.[5]

For Criminal Case No. 2000-06-365

That on or about the 30th day of January, 2000 in the Municipality of Santa Fe, Province of
Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together and mutually helping one another, with lewd
design and with the use of force upon the thirteen-year-old AAA, a househelp of accused
Roberto Hidalgo, did, then and there, wilfully, unlawfully and feloniously perform the following
acts, to wit: accused [Michael Bombasi] succeeded in having carnal knowledge of the said AAA
without her consent and against her will, after co-accused Roberto Hidalgo tied her hands and
mouth and [Don Juan Hidalgo], touched her private parts.

Contrary to law, with the aggravating circumstance that the offended party is only (13) years old
and the offender Roberto Hidalgo is her guardian.[6]

Thereafter, Don Juan was arrested in Sta. Fe, Leyte on 6 March 2000 while Roberto allegedly
surrendered to Philippine National Police Criminal Investigation and Detection Group (PNP
CIDG) in Tacloban City on 9 March 2000. On the other hand, Bombasi remains at large.[7]

Upon arraignment, both Roberto and Don Juan entered a non-guilty plea.[8]

After trial, RTC Tacloban City on 31 January 2003 decided that the prosecution proved the guilt
of the accused beyond reasonable doubt. It found AAA's narration that she was raped by the
three accused in the evening of 30 January 2000 credible. It emphasized that the victim, who was
barely thirteen years old and a barrio lass, would not subject herself to the humiliation of public
trial if her testimony is of no truth. Further, trial court found present the special aggravating
circumstances of the victim's minority, conspiracy, use of force, superior strength, night time,
and ignominy.

The trial court found conspiracy among the accused. It ruled that the confederated acts of the
three accused as active participants in helping one another subdue AAA and thereafter taking
turns in having carnal knowledge of her indicated a common purpose. On the other hand, it
considered the special mitigating circumstance of minority in favor of Don Juan. From the
foregoing, the court in its amended decision imposed the following penalties via the dispositive
portion:

WHEREFORE, premises considered, pursuant to Art. 266-A, 266-B of the Revised Penal Code
as amended and the amendatory provision of R.A. No. 8353 (Anti-Rape Law of 1997) in relation
to Section 11 of R.A. No. 7659 (Death Penalty Law), the Court found ROBERTO
HIDALGO, GUILTY beyond reasonable doubt for the crime of RAPE under Criminal Cases
Nos. 2000-06-363; 2000-06-364; and 2000-06-0365 and sentenced to suffer the maximum
penalty of DEATH and to indemnify the victim AAA the sum of Seventy Five Thousand
([P]75,000.00) Pesos for each count of Rape and pay moral damages in the amount of Fifty
Thousand Pesos ([P]50,000.00) for each count.

DON JUAN HIDALGO is found GUILTY beyond reasonable doubt for the crime of RAPE
under Criminal Case Nos. 2000-06-363; 2000-06-364; 2000-06-0365, however, with the special
mitigating circumstance of Minority, being sixteen (16) at the time of the commission of the
crime, he is sentenced to suffer the maximum penalty of RECLUSION PERPETUA for each
count and to indemnify the victim AAA the sum of Fifty Thousand Pesos ([P]50,000.00) for
each count of rape and pay moral damages of Fifty Thousand Pesos ([P]50,000.00) for each
count; and

Pay the cost. SO ORDERED.[9]

Upon appeal, the Court of Appeals affirmed with modifications the ruling of the trial court in a
decision promulgated on 4 August 2011. It ruled that the three accused conspired to rape AAA
but disregarded the qualifying circumstance that Roberto acted as a guardian of AAA, in the
absence of sufficient proof. Further, the appellate court did not consider the other aggravating
circumstances of abuse of superior strength, night time and ignominy due to the fact that these
were not alleged in the three sets of information filed against the three accused. In the dispositive
portion, the appellate court ruled as follows:

WHEREFORE, the appeal is DENIED. The Amended Decision dated January 31, 2003 of the
Regional Trial Court, Branch 7, Bulwagan ng Katarungan, Magsaysay Blvd., Tacloban City in
Criminal Case Nos. 2000-06-363, 2000-06-364 and 2000-06-365
is AFFIRMED with MODIFICATIONS. Appellant Roberto Hidalgo is convicted of three counts
of simple rape and sentenced to suffer the penalty of reclusion perpetua for each of the three
counts of rape, while appellant Don Juan Hidalgo, being a minor at the time of the commission
of the crime and applying the Indeterminate Sentence Law, is sentenced to suffer an
indeterminate penalty ranging from twelve (12) years of prision mayor, as minimum, to
seventeen (17) years and four (4) months of reclusion temporal, as maximum in each of the three
counts of rape. The sentence as to appellant Don Juan Hidalgo is hereby SUSPENDED, pursuant
to Section 38, in relation to Sec. 5 (1), f Republic Act No. 9344, also known as the "Juvenile
Justice and Welfare Act of 2006." Upon finality of this Decision, the Assistant Clerk of Court of
the Court of Appeals, Visayas Station, Cebu City is DIRECTED to remand the records to the
court of origin for further proceedings for purposes of intervention program as to said
offender.[10]

Only accused-appellant Roberto filed his appeal and assigned as error on the part of the Court of
Appeals when it: (1) gave full faith and credence to the private complainant's testimony; and (2)
ruled that conspiracy was established and found the accused-appellant liable for three (3) counts
of simple rape.

We dismiss the appeal for lack of merit.

For the prosecution of rape to prosper, the following elements must be proved: (1) the accused
had carnal knowledge of the victim; and (2) said act was accomplished (a) through the use of
force, threat or intimidation, or (b) when the victim is deprived of reason or otherwise
unconscious, or (c) when the victim is under 12 years of age or is demented.[11]

In the case at bar, We find that the prosecution was able to prove that the three accused Roberto,
Don Juan and Bombasi conspired with one another to commit carnal knowledge of AAA through
the use of force and threat. Contrary to the allegation of Roberto that the narration of AAA was
too uniform, almost general and lacked specific details, we find her testimony sufficient in
details to sustain conviction.

In her testimony, AAA testified that she was hired by the spouses Roberto and Vivian Hidalgo as
a house helper and nanny of their child Joshua. She recalled that after putting Joshua to sleep at
around 8 in the evening of 30 January 2000, she herself slept in sofa beds near where Joshua was
sleeping.[12] While sleeping, she was awakened when Roberto and Bombasi tied both of her
hands at her back. She also noticed that a handkerchief was already tied in her mouth. Thereafter,
both men turned her around, touched her body and started to take her clothes off. Roberto took
her shorts and panty off and went on top of her. He then inserted his penis inside her vagina
while kissing and touching her. After satisfying his lust, he got off from AAA. Thereafter,
Bombasi took his turn and inserted his penis inside AAA's vagina while continuing to touch her
body. Finally, Don Juan went on top of AAA and kissed her shoulders and lips. Thereafter, he
inserted his penis inside AAA's vagina. During the whole time she was being raped by the three
accused, AAA pleaded for Roberto to stop what was happening but her pleas fell to deaf ears.
Roberto even shook her head from left to right while Joshua laughed at her side while she was
being touched.[13]After satisfying their sexual desires, the three accused untied her and threatened
to cut off her tongue and kill her family in case she would tell them what happened. When they
left the house, she untied the handkerchief on her mouth and put her clothes on. After a while,
Vivian arrived. She caught AAA crying and asked her what was wrong. AAA, afraid to reveal
what happened, just asked Vivian for permission to go home.[14]
For fear that the three accused would make true of their threats, it took AAA almost one month
to file a case and submit herself to medical examination.

Medico-legal officers Dr. Paolo Estorninos and Dr. Ma. Salud Rosillo of Eastern Visayas
Regional Medical Center (EVMRC) in Tacloban City confirmed in their report that there was
laceration in the hymen of AAA when they examined her on 28 February 2000.[15]

During the defense's turn in presenting its testimonial evidence in court, Roberto and Don Juan
filed a Motion for Leave of Court to File Demurrer to Evidence on the grounds that the
prosecution failed to establish the jurisdiction of court and failure of the prosecution to establish
the identity of the accused as the perpetrators of the crime.[16] The trial court initially denied the
motion but on 23 October 2002, it directed the defense to present its evidence. When asked in
open court, both Roberto and Don Juan reiterated their positions that they agreed with the
proposition of their counsel to submit their case for decision. Thus, other than their self-serving
allegations in their pleadings that AAA failed to identify them as the assailants and lack of
conspiracy, no other proof was offered to acquit them.

All told, we are convinced that all the elements constituting the crime of rape were sufficiently
established.

Roberto relies upon the failure of AAA to specifically point out the overt acts committed by him
which would indicate that there was a conspiracy in raping her. He insisted that the testimony
was too broad and general to indicate a common purpose in committing the crime of rape.

We disagree.

Conspiracy exists when the acts of the accused demonstrate a common design towards the
accomplishment of the same unlawful purpose.[17] In this case, the acts of Roberto, Don Juan and
Bombasi clearly demonstrated unity of action to have carnal knowledge of AAA: (1) Both
Roberto and Bombasi tied AAA's hands at her back, while a handkerchief was already tied in her
mouth; (2) Both men turned AAA around, touched her body and started to take her clothes off;
(3) Roberto succeeded in undressing AAA, went on top of her and placed his penis inside her
vagina; (4) After satisfying his lust, Roberto got off from AAA and Bombasi took his turn and
inserted his penis inside AAA's vagina; (5) After Bombasi, Don Juan went on top of AAA,
kissed her shoulders and lips and also inserted his penis inside AAA's vagina; (6) When they
were satiated in their sexual desires, the three accused untied the rope binding AAA and
threatened to cut off her tongue and kill her family in case she would tell them what happened.
Unmistakably, these acts demonstrated a concerted effort to rape AAA.
Since there was a conspiracy between Roberto, Don Juan and Bombasi, the act of one of them
was the act of all and the three of them are equally guilty of all the crimes of rape committed
against AAA.

With respect to the penalty, the Court affirms with modifications the penalties imposed by the
Court of Appeals.

As to Roberto, we affirm the imposition of reclusion perpetua for each of the crimes committed.
Under Article 266-B[18] of R.A. No. 8353, the penalty of reclusion perpetua to death shall be
imposed whenever the crime of rape is committed through the use of a deadly weapon or by two
or more persons. (Emphasis ours) In this case, it was sufficiently alleged in the Information and
proven during trial that the crime was committed by Roberto together with Don Juan and
Bombasi. Since neither applicable aggravating nor mitigating circumstance attended the
commission of the crime, the lesser of the two indivisible penalties which is reclusion
perpetua shall be imposed to Roberto pursuant to Article 63[19] of the penal code.[20]

The penalty that the Court of Appeals imposed on Don Juan reads:

x x x while appellant Don Juan Hidalgo, being a minor at the time of the commission of the
crime and applying the Indeterminate Sentence Law, is sentenced to suffer an indeterminate
penalty ranging from twelve (12) years of prision mayor, as minimum, to seventeen (17) years
and four (4) months of reclusion temporal, as maximum in each of the three counts of rape. The
sentence as to appellant Don Juan Hidalgo is hereby SUSPENDED, pursuant to Section 38, in
relation to Sec. 5 (1), f Republic Act No. 9344, also known as the "Juvenile Justice and Welfare
Act of 2006." xxx (Underscoring ours)

While Don Juan is not an appellant before us, we find a need to correct the penalty that was
imposed, thus, applying ISLAW, the penalty to be imposed on Don Juan will be within the range
of prision mayor from six (6) years and one (1) day to twelve (12) years, as minimum penalty, to
14 years, eight (8) months and 1 day to 17 years and four (4) months of prision temporal in its
medium period, as maximum penalty in each of the three counts of rape.[21]

With the passage of Republic Act No. 9344 (R.A. No. 9344) known as "Juvenile Justice and
Welfare Act of 2006"[22]on 28 April 2006, the provision on retroactivity applies insofar as it
favors the persons guilty of a felony.[23] This is despite the fact that the accused is no longer a
minor at the time his conviction is promulgated. The intent of R.A. No. 9344 is the promotion of
the welfare of a child in conflict with the law even if he/she has already exceeded the age limit of
21 years, so long as he/she committed the crime when he/she was still a child. He/she shall be
entitled to the right to restoration, rehabilitation and reintegration in accordance with R.A. No.
9344 in order that he/she is given the chance to live a normal life and become a productive
member of the community. The age of the child in conflict with the law at the time of the
promulgation of the judgment of conviction is not material.[24] What is important is that the
offense was committed when the accused was still of tender age.[25]

WHEREFORE, the appeal is DISMISSED and the Decision of the Court of Appeals dated 4
August 2011 in CA-G.R. CR-H.C. No. 00545 is AFFIRMED with the following modifications:

Roberto is sentenced to suffer the penalty of reclusion perpetua while Don Juan is ordered to
serve the period of his sentence in an agricultural camp and other training facilities that may be
established, maintained, supervised and controlled by the BUCOR, in coordination with the
DSWD.

As to civil liability, both Roberto and Don Juan are hereby ordered to pay the victim P50,000.00
as civil indemnity and P50,000.00 as moral damages for each of the three counts of rape
committed. In addition, Roberto is further ordered to pay the victim P30,000.00 as exemplary
damages for each of the three counts of rape.

The damages to be paid by Roberto Hidalgo and Don Juan Hidalgo shall earn 6% interest to be
reckoned from the date of finality of this decision until fully paid.

SO ORDERED.

Sereno, C. J., (Chairperson), Leonardo-De Castro, Bersamin, and Perlas-Bernabe, JJ., concur.