G.R. No.

199067

November 11, 2013

NISSAN GALLERY-ORTIGAS, Petitioner,

vs.
PURIFICACION F. FELIPE, Respondent.
DECISION
MENDOZA, J.:
This petition for review on certiorari under Rule 45 or the Rules or
Court seeks to review, reverse and set aside the June 30, 2011
Decision1 or the Court of Appeals (CA) in CA-G.R. SP No.
120100,2 and its October 21, 2011 Resolution,3 for being issued in
a manner not in accord with law and jurisprudence.
This case stemmed from a criminal complaint for violation or
Batas Pambansa Blg. 22 (BP 22) filed by petitioner Nissan
Gallery-Ortigas Nissan), an entity engaged in the business or car
dealership, against respondent Purificacion F. Felipe
(Purificacion) with the Office of the City Prosecutor of Quezon
City. The said office found probable cause to indict Purificacion
and filed an Information before the Metropolitan Trial Court,
(raffled to Branch 41), Quezon City (MeTC), for her issuance of a
postdated check in the amount of P1,020,000.00, which was
subsequently dishonored upon presentment due to "STOP
PAYMENT."
Purificacion issued the said check because her son, Frederick
Felipe (Frederick), attracted by a huge discount ofP220,000.00,
purchased a Nissan Terrano 4x4 sports and utility vehicle (SUV)
from Nissan. The term of the transaction was Cash-on-Delivery
and no downpayment was required. The SUV was delivered on
May 14, 1997, but Frederick failed to pay upon delivery. Despite
non-payment, Frederick took possession of the vehicle.4
Since then, Frederick had used and enjoyed the SUV for more
than four (4) months without paying even a single centavo of the
purchase price. This constrained Nissan to send him two (2)
demand letters, on different dates, but he still refused to pay.
Nissan, through its retained counsel, was prompted to send a final
demand letter. Reacting to the final demand, Frederick went to
Nissans office and asked for a grace period until October 30,
1997 within which to pay his full outstanding obligation amounting
to P1,026,750.00. Through further negotiation, the amount was
eventually reduced to P1,020,000.00.5
Frederick reneged on his promise and again failed to pay. On
November 25, 1997, he asked his mother, Purificacion, to issue
the subject check as payment for his obligation. Purificacion
acceded to his request. Frederick then tendered her postdated
check in the amount of P1,020,000.00. The check, however, was
dishonored upon presentment due to "STOP PAYMENT."6
A demand letter was served upon Purificacion, through Frederick,
who lived with her. The letter informed her of the dishonor of the

check and gave her five (5) days from receipt within which to
replace it with cash or managers check. Despite receipt of the
demand letter, Purificacion refused to replace the check giving the
reason that she was not the one who purchased the vehicle. On
January 6, 1998, Nissan filed a criminal case for violation of BP
22 against her.7
During the preliminary investigation before the Assistant City
Prosecutor, Purificacion gave P200,000.00 as partial payment to
amicably settle the civil aspect of the case. Thereafter, however,
no additional payment had been made.
After trial, the MeTC rendered its judgment acquitting Purificacion
of the charge, but holding her civilly liable to Nissan. The
dispositive portion of the judgment states that:
WHEREFORE, judgment is hereby rendered ACQUITTING
accused PURIFICACION FELIPE of the crime of Violation of
Batas Pambansa 22. However, accused PURIFICACION FELIPE
is ordered to pay private complainant Nissan Gallery Ortigas the
amount of SIX HUNDRED SEVENTY FIVE THOUSAND PESOS
(P675,000.00) with legal interest per annum, from the filing of the
information until the finality of this decision.
SO ORDERED.8
Purificacion appealed to the Regional Trial Court (RTC). Branch
105 thereof affirmed the MeTC decision on December 22, 2008.
The RTC ruled that Purificacion was estopped from denying that
she issued the check as a "show check" to boost the credit
standing of Frederick and that Nissan agreed not to deposit the
same.9 Further, the RTC considered Purificacion to be an
accommodation party who was "liable on the instrument to a
holder for value even though the holder at the time of taking the
instrument knew him or her to be merely an accommodation
party."10
Purificacion moved for a reconsideration, but her motion was
denied.
The CA, before whom the case was elevated via a petition for
review, granted the petition on May 20, 2009.1avvphi1 In so
deciding, the CA reasoned out that there was no privity of contract
between Nissan and Purificacion. No civil liability could be
adjudged against her because of her acquittal from the criminal
charge. It was Frederick who was civilly liable to Nissan.11
It added that Purificacion could not be an accommodation party
either because she only came in after Frederick failed to pay the
purchase price, or six (6) months after the execution of the
contract between Nissan and Frederick. Her liability was limited to
her act of issuing a worthless check but by her acquittal in the
criminal charge, there was no more basis for her to be held civilly
liable to Nissan.12 Purificacions act of issuing the subject check
did not, by itself, assume the civil obligation of Frederick to Nissan

or automatically made her a party to the contract.13 Thus, the

decretal portion of the judgment reads:
WHEREFORE, finding merit therefrom, the instant petition is
GIVEN DUE COURSE and is hereby GRANTED. The Decision
and Order dated December 22, 2008 and May 20, 2009,
respectively, of the Regional Trial Court (RTC), Branch 105,
Quezon City, in Crim. Case No. Q-08-151734, affirming the
Judgment of the Metropolitan Trial Court (MeTC), Branch 41,
Quezon City, for Violation of B.P. 22, acquitting petitioner of the
crime charged but ordering the latter to pay respondent the
amount of Six Hundred Seventy Five Thousand Pesos
(P675,000.00) with 12% legal interest, is SET ASIDE and
petitioner is EXONERATED from any civil liability by reason of her
issuance of the subject check.
xxx
SO ORDERED.14
Nissan filed a motion for reconsideration, but it was later denied.
Hence, this petition, with Nissan presenting the following
GROUNDS
A.
BOTH THE METROPOLITAN TRIAL COURT AND THE
REGIONAL TRIAL COURT CONCURRED THAT THE ISSUANCE
BY RESPONDENT PURIFICACION OF THE SUBJECT
BOUNCED CHECK WAS FOR AND IN PAYMENT OF HER
SONS OUTSTANDING OBLIGATION TO NISSAN GALLERY
ORIGINATING FROM HIS PURCHASE OF THE SUBJECT
MOTOR VEHICLE, NOT MERELY AS A "SHOW CHECK",
HENCE, EVEN IF PURIFICACION IS NOT A PARTY TO THE
SALES TRANSACTION BETWEEN NISSAN GALLERY, AS
SELLER, AND FREDERICK, AS BUYER, PURIFICACION, AS
THE ONE WHO DREW THE BOUNCED CHECK AS AND IN
PAYMENT OF THE LONG-UNPAID MOTOR VEHICLE
PURCHASED BY HER SON, COULD NOT ESCAPE LIABILITY
ON THE CIVIL ASPECT OF THE CASE.
B.
WHILE IT MAY BE TRUE THAT RESPONDENT PURIFICACION
MAY BE ACQUITTED OF THE CRIME CHARGED (VIOLATION
OF B.P. 22), ONLY BECAUSE THE PROSECUTION FAILED TO
PROVE THAT RESPONDENT PURIFICACION WAS PROPERLY
NOTIFIED OF THE DISHONOR OF THE SUBJECT BOUNCED
CHECK, IT IS NOT CORRECT TO EXONERATE HER FROM
THE CIVIL ASPECT OF THE CASE.15
Ultimately, the question presented before the Court is whether or
not Purificacion is civilly liable for the issuance of a worthless
check despite her acquittal from the criminal charge.

Ruling of the Court

The Court rules in the affirmative.
Well-settled is the rule that a civil action is deemed instituted upon
the filing of a criminal action, subject to certain exceptions.
Section 1, Rule 111 of the Rules of Court specifically provides
that:
SECTION 1. Institution of criminal and civil actions. (a) When a
criminal action is instituted, the civil action for the recovery of civil
liability arising from the offense charged shall be deemed
instituted with the criminal action unless the offended party waives
the civil action, reserves the right to institute it separately or
institutes the civil action prior to the criminal action (unless the
offended party waives the civil action, reserves the right to
institute it separately or institutes the civil action prior to the
criminal action).
x x x x.
(b) The criminal action for violation of Batas Pambansa Blg. 22
shall be deemed to include the corresponding civil action. No
reservation to file such civil action separately shall be allowed.
x x x x.
As can be gleaned from the foregoing, with respect to criminal
actions for violation of BP 22, it is explicitly clear that the
corresponding civil action is deemed included and that a
reservation to file such separately is not allowed.
The rule is that every act or omission punishable by law has its
accompanying civil liability. The civil aspect of every criminal case
is based on the principle that every person criminally liable is also
civilly liable.16 If the accused, however, is not found to be
criminally liable, it does not necessarily mean that he will not
likewise be held civilly liable because extinction of the penal
action does not carry with it the extinction of the civil action.17This
rule more specifically applies when (a) the acquittal is based on
reasonable doubt as only preponderance of evidence is required;
(b) the court declares that the liability of the accused is only civil;
and (c) the civil liability of the accused does not arise from or is
not based upon the crime of which the accused was
acquitted.18 The civil action based on the delict is extinguished if
there is a finding in the final judgment in the criminal action that
the act or omission from which the civil liability may arise did not
exist or where the accused did not commit the acts or omission
imputed to him.19
It can, therefore, be concluded that if the judgment is conviction of
the accused, then the necessary penalties and civil liabilities
arising from the offense or crime shall be imposed. On the
contrary, if the judgment is of acquittal, then the imposition of the
civil liability will depend on whether or not the act or omission from
which it might arise exists.

Purificacion was charged with violation of BP 22 for allegedly

issuing a worthless check. The essential elements of the offense
of violation of BP 22 are the following:
(1) The making, drawing, and issuance of any check to apply for
account or for value; (2) The knowledge of the maker, drawer, or
issuer that at the time of issue there were no sufficient funds in or
credit with the drawee bank for the payment of such check in full
upon its presentment; and (3) The dishonor of the check by the
drawee bank for insufficiency of funds or credit or the dishonor for
the same reason had not the drawer, without any valid cause,
ordered the drawee bank to stop payment.20
Here, the first and third elements were duly proven in the trial.
Purificacion, however, was acquitted from criminal liability
because of the failure of the prosecution to prove the fact of
notice of dishonor. Of the three (3) elements, the second element
is the hardest to prove as it involves a state of mind.21 Thus,
Section 2 of BP 22 creates a presumption of knowledge of
insufficiency of funds which, however, arises only after it is proved
that the issuer had received a written notice of dishonor and that
within five (5) days from receipt thereof, he failed to pay the
amount of the check or to make arrangements for its payment.22
Purificacion was acquitted because the element of notice of
dishonor was not sufficiently established.1wphi1Nevertheless,
the act or omission from which her civil liability arose, which was
the making or the issuing of the subject worthless check, clearly
existed. Her acquittal from the criminal charge of BP 22 was
based on reasonable doubt and it did not relieve her of the
corresponding civil liability. The Court cannot agree more when
the MeTC ruled that:
A person acquitted of a criminal charge, however, is not
necessarily civilly free because the quantum of proof required in
criminal prosecution (proof beyond reasonable doubt) is greater
than that required for civil liability (mere preponderance of
evidence). In order to be completely free from civil liability, a
persons acquittal must be based on the fact he did not commit
the offense. If the acquittal is based merely on reasonable doubt,
the accused may still be held civilly liable since this does not
mean he did not commit the act complained of. It may only be that
the facts proved did not constitute the offense charged.23
The Court is also one with the CA when it stated that the liability
of Purificacion was limited to her act of issuing a worthless check.
The Court, however, does not agree with the CA when it went to
state further that by her acquittal in the criminal charge, there was
no more basis for her to be held civilly liable to Nissan. The
acquittal was just based on reasonable doubt and it did not
change the fact that she issued the subject check which was
subsequently dishonored upon its presentment.
Purificacion herself admitted having issued the subject check in
the amount of P1,020,000.00 after Frederick asked her to do it as

payment for his obligation with Nissan. Her claim that she issued
the check as a mere "show check" to boost Fredericks credit
standing was not convincing because there was no credit
standing to boost as her son had already defaulted in his
obligation to Nissan. Had it been issued prior to the sale of the
vehicle, the "show check" claim could be given credence. It was
not, however, the case here. It was clear that she assumed her
sons obligation with Nissan and issued the check to pay it. The
argument that it was a mere "show check" after her son was
already in default its simply ludicrous.
The Court shall not be belabored with the issue of whether or not
Purificacion was an accommodation party because she was not.
Granting that she was, it is with more reason that she cannot
escape any civil liability because Section 2924 of the Negotiable
Instruments Law specifically bounds her to the instrument. The
crux of the controversy pertains to the civil liability of an accused
despite acquittal of a criminal charge. Such issue is no longer
novel. In cases like violation of BP 22, a special law, the intent in
issuing a check is immaterial. The law has made the mere act of
issuing a bad check malum prohibitum, an act prescribed by the
legislature for being deemed pernicious and inimical to public
welfare. Considering the rule in mala prohibita cases, the only
inquiry is whether the law has been breached.25 The lower courts
were unanimous in finding that, indeed. Purificacion issued the
bouncing check. Thus, regardless of her intent, she remains civilly
liable because the act or omission, the making and issuing of the
subject check, from which her civil liability arises, evidently exists.
WHEREFORE, the petition is GRANTED. The June 30, 2011
Decision and the October 21, 2011 Resolution of the Court of
Appeals are hereby SET ASIDE. The Decision of the Regional
Trial Court, Branch 105, Quezon City, in Criminal Case No. Q-08151734, dated December 22, 2008, affirming the Judgment of the
Metropolitan Trial Court, Branch 41, Quezon City, for Violation of
B.P. 22 is REINSTATED with MODIFICATION with respect to the
legal interest which shall be reduced to 6% per annum from
finality of this judgment until its satisfaction.26
SO ORDERED.
PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC
GENOSA, appellant.
DECISION
PANGANIBAN, J.:
Admitting she killed her husband, appellant anchors her prayer for
acquittal on a novel theory -- the battered woman syndrome
(BWS), which allegedly constitutes self-defense. Under the
proven facts, however, she is not entitled to complete exoneration
because there was no unlawful aggression -- no immediate and
unexpected attack on her by her batterer-husband at the time she
shot him.

Absent unlawful aggression, there can be no self-defense,

complete or incomplete.
But all is not lost. The severe beatings repeatedly inflicted on
appellant constituted a form of cumulative provocation that broke
down her psychological resistance and self-control. This
psychological paralysis she suffered diminished her will power,
thereby entitling her to the mitigating factor under paragraphs 9
and 10 of Article 13 of the Revised Penal Code.
In addition, appellant should also be credited with the extenuating
circumstance of having acted upon an impulse so powerful as to
have naturally produced passion and obfuscation. The acute
battering she suffered that fatal night in the hands of her battererspouse, in spite of the fact that she was eight months pregnant
with their child, overwhelmed her and put her in the aforesaid
emotional and mental state, which overcame her reason and
impelled her to vindicate her life and her unborn childs.
Considering the presence of these two mitigating circumstances
arising from BWS, as well as the benefits of the Indeterminate
Sentence Law, she may now apply for and be released from
custody on parole, because she has already served the minimum
period of her penalty while under detention during the pendency
of this case.
The Case
For automatic review before this Court is the September 25, 1998
Decision[1] of the Regional Trial Court (RTC) of Ormoc City
(Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa
guilty beyond reasonable doubt of parricide. The decretal portion
of the Decision reads:
WHEREFORE, after all the foregoing being duly considered, the
Court finds the accused, Marivic Genosa y Isidro, GUILTY beyond
reasonable doubt of the crime of Parricide as provided under
Article 246 of the Revised Penal Code as restored by Sec. 5, RA
No. 7659, and after finding treachery as a generic aggravating
circumstance and none of mitigating circumstance, hereby
sentences the accused with the penalty of DEATH.
The Court likewise penalizes the accused to pay the heirs of the
deceased the sum of fifty thousand pesos (P50,000.00),
Philippine currency as indemnity and another sum of fifty
thousand pesos (P50,000.00), Philippine currency as moral
damages.[2]
The Information[3] charged appellant with parricide as follows:
That on or about the 15th day of November 1995, at Barangay
Bilwang, Municipality of Isabel, Province of Leyte, Philippines and
within the jurisdiction of this Honorable Court, the above-named
accused, with intent to kill, with treachery and evident
premeditation, did then and there wilfully, unlawfully and
feloniously attack, assault, hit and wound one BEN GENOSA, her

legitimate husband, with the use of a hard deadly weapon, which

the accused had provided herself for the purpose, [causing] the
following wounds, to wit:
Cadaveric spasm.
Body on the 2nd stage of decomposition.
Face, black, blownup & swollen w/ evident post-mortem lividity.
Eyes protruding from its sockets and tongue slightly protrudes out
of the mouth.
Fracture, open, depressed, circular located at the occipital bone
of the head, resulting [in] laceration of the brain, spontaneous
rupture of the blood vessels on the posterior surface of the brain,
laceration of the dura and meningeal vessels producing severe
intracranial hemorrhage.
Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk
w/ shedding of the epidermis.
Abdomen distended w/ gas. Trunk bloated.
which caused his death.[4]
With the assistance of her counsel,[5] appellant pleaded not guilty
during her arraignment on March 3, 1997.[6] In due course, she
was tried for and convicted of parricide.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) summarizes the
prosecutions version of the facts in this wise:
Appellant and Ben Genosa were united in marriage on November
19, 1983 in Ormoc City. Thereafter, they lived with the parents of
Ben in their house at Isabel, Leyte. For a time, Bens younger
brother, Alex, and his wife lived with them too. Sometime in 1995,
however, appellant and Ben rented from Steban Matiga a house
at Barangay Bilwang, Isabel, Leyte where they lived with their two
children, namely: John Marben and Earl Pierre.
On November 15, 1995, Ben and Arturo Basobas went to a
cockfight after receiving their salary. They each had two (2)
bottles of beer before heading home. Arturo would pass Bens
house before reaching his. When they arrived at the house of
Ben, he found out that appellant had gone to Isabel, Leyte to look
for him. Ben went inside his house, while Arturo went to a store
across it, waiting until 9:00 in the evening for the masiao runner to
place a bet. Arturo did not see appellant arrive but on his way
home passing the side of the Genosas rented house, he heard
her say I wont hesitate to kill you to which Ben replied Why kill me
when I am innocent? That was the last time Arturo saw Ben alive.

Arturo also noticed that since then, the Genosas rented house
appeared uninhabited and was always closed.
On November 16, 1995, appellant asked Erlinda Paderog, her
close friend and neighbor living about fifty (50) meters from her
house, to look after her pig because she was going to Cebu for a
pregnancy check-up. Appellant likewise asked Erlinda to sell her
motorcycle to their neighbor Ronnie Dayandayan who
unfortunately had no money to buy it.
That same day, about 12:15 in the afternoon, Joseph Valida was
waiting for a bus going to Ormoc when he saw appellant going out
of their house with her two kids in tow, each one carrying a bag,
locking the gate and taking her children to the waiting area where
he was. Joseph lived about fifty (50) meters behind the Genosas
rented house. Joseph, appellant and her children rode the same
bus to Ormoc. They had no conversation as Joseph noticed that
appellant did not want to talk to him.
On November 18, 1995, the neighbors of Steban Matiga told him
about the foul odor emanating from his house being rented by
Ben and appellant. Steban went there to find out the cause of the
stench but the house was locked from the inside. Since he did not
have a duplicate key with him, Steban destroyed the gate padlock
with a borrowed steel saw. He was able to get inside through the
kitchen door but only after destroying a window to reach a hook
that locked it. Alone, Steban went inside the unlocked bedroom
where the offensive smell was coming from. There, he saw the
lifeless body of Ben lying on his side on the bed covered with a
blanket. He was only in his briefs with injuries at the back of his
head. Seeing this, Steban went out of the house and sent word to
the mother of Ben about his sons misfortune. Later that day,
Iluminada Genosa, the mother of Ben, identified the dead body as
that of [her] son.
Meanwhile, in the morning of the same day, SPO3 Leo Acodesin,
then assigned at the police station at Isabel, Leyte, received a
report regarding the foul smell at the Genosas rented house.
Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina
Cerillo, SPO3 Acodesin proceeded to the house and went inside
the bedroom where they found the dead body of Ben lying on his
side wrapped with a bedsheet. There was blood at the nape of
Ben who only had his briefs on. SPO3 Acodesin found in one
corner at the side of an aparador a metal pipe about two (2)
meters from where Ben was, leaning against a wall. The metal
pipe measured three (3) feet and six (6) inches long with a
diameter of one and half (1 1/2) inches. It had an open end
without a stop valve with a red stain at one end. The bedroom
was not in disarray.
About 10:00 that same morning, the cadaver of Ben, because of
its stench, had to be taken outside at the back of the house before
the postmortem examination was conducted by Dr. Cerillo in the
presence of the police. A municipal health officer at Isabel, Leyte
responsible for medico-legal cases, Dr. Cerillo found that Ben had

been dead for two to three days and his body was already
decomposing. The postmortem examination of Dr. Cerillo yielded
the findings quoted in the Information for parricide later filed
against appellant. She concluded that the cause of Bens death
was cardiopulmonary arrest secondary to severe intracranial
hemorrhage due to a depressed fracture of the occipital [bone].
Appellant admitted killing Ben. She testified that going home
after work on November 15, 1995, she got worried that her
husband who was not home yet might have gone gambling since
it was a payday. With her cousin Ecel Arao, appellant went to look
for Ben at the marketplace and taverns at Isabel, Leyte but did not
find him there. They found Ben drunk upon their return at the
Genosas house. Ecel went home despite appellants request for
her to sleep in their house.
Then, Ben purportedly nagged appellant for following him, even
challenging her to a fight. She allegedly ignored him and instead
attended to their children who were doing their homework.
Apparently disappointed with her reaction, Ben switched off the
light and, with the use of a chopping knife, cut the television
antenna or wire to keep her from watching television. According to
appellant, Ben was about to attack her so she ran to the bedroom,
but he got hold of her hands and whirled her around. She fell on
the side of the bed and screamed for help. Ben left. At this point,
appellant packed his clothes because she wanted him to leave.
Seeing his packed clothes upon his return home, Ben allegedly
flew into a rage, dragged appellant outside of the bedroom
towards a drawer holding her by the neck, and told her You might
as well be killed so nobody would nag me. Appellant testified that
she was aware that there was a gun inside the drawer but since
Ben did not have the key to it, he got a three-inch long blade
cutter from his wallet. She however, smashed the arm of Ben with
a pipe, causing him to drop the blade and his wallet. Appellant
then smashed Ben at his nape with the pipe as he was about to
pick up the blade and his wallet. She thereafter ran inside the
bedroom.
Appellant, however, insisted that she ended the life of her
husband by shooting him. She supposedly distorted the drawer
where the gun was and shot Ben. He did not die on the spot,
though, but in the bedroom.[7] (Citations omitted)
Version of the Defense
Appellant relates her version of the facts in this manner:
1. Marivic and Ben Genosa were allegedly married on November
19, 1983. Prior to her marriage, Marivic had graduated from San
Carlos, Cebu City, obtaining a degree of Bachelor of Science in
Business Administration, and was working, at the time of her
husbands death, as a Secretary to the Port Managers in Ormoc
City. The couple had three (3) children: John Marben, Earl Pierre
and Marie Bianca.

2. Marivic and Ben had known each other since elementary

school; they were neighbors in Bilwang; they were classmates;
and they were third degree cousins. Both sets of parents were
against their relationship, but Ben was persistent and tried to stop
other suitors from courting her. Their closeness developed as he
was her constant partner at fiestas.
3. After their marriage, they lived first in the home of Bens
parents, together with Bens brother, Alex, in Isabel, Leyte. In the
first year of marriage, Marivic and Ben lived happily. But
apparently, soon thereafter, the couple would quarrel often and
their fights would become violent.
4. Bens brother, Alex, testified for the prosecution that he could
not remember when Ben and Marivic married. He said that when
Ben and Marivic quarreled,generally when Ben would come home
drunk, Marivic would inflict injuries on him. He said that in one
incident in 1993 he saw Marivic holding a kitchen knife after Ben
had shouted for help as his left hand was covered with blood.
Marivic left the house but after a week, she returned apparently
having asked for Bens forgiveness. In another incident in May 22,
1994, early morning, Alex and his father apparently rushed to
Bens aid again and saw blood from Bens forehead and Marivic
holding an empty bottle. Ben and Marivic reconciled after Marivic
had apparently again asked for Bens forgiveness.
Mrs. Iluminada Genosa, Marivics mother-in-law, testified too,
saying that Ben and Marivic married in 1986 or 1985 more or less
here in Fatima, Ormoc City. She said as the marriage went along,
Marivic became already very demanding. Mrs. Iluminada Genosa
said that after the birth of Marivics two sons, there were three (3)
misunderstandings. The first was when Marivic stabbed Ben with
a table knife through his left arm; the second incident was on
November 15, 1994, when Marivic struck Ben on the
forehead using a sharp instrument until the eye was also affected.
It was wounded and also the ear and her husband went to Ben to
help; and the third incident was in 1995 when the couple had
already transferred to the house in Bilwang and she saw that
Bens hand was plastered as the bone cracked.
Both mother and son claimed they brought Ben to a Pasar clinic
for medical intervention.
5. Arturo Basobas, a co-worker of Ben, testified that on November
15, 1995 After we collected our salary, we went to the cockfighting place of ISCO. They stayed there for three (3) hours, after
which they went to Uniloks and drank beer allegedly only two (2)
bottles each. After drinking they bought barbeque and went to the
Genosa residence. Marivic was not there. He stayed a while
talking with Ben, after which he went across the road to wait for
the runner and the usher of the masiao game because during that
time, the hearing on masiao numbers was rampant. I was waiting
for the ushers and runners so that I can place my bet. On his way
home at about 9:00 in the evening, he heard the Genosas
arguing. They were quarreling loudly. Outside their house was

one Fredo who is used by Ben to feed his fighting cocks. Basobas
testimony on the root of the quarrel, conveniently overheard by
him was Marivic saying I will never hesitate to kill you, whilst Ben
replied Why kill me when I am innocent. Basobas thought they
were joking.
He did not hear them quarreling while he was across the road
from the Genosa residence. Basobas admitted that he and Ben
were always at the cockpits every Saturday and Sunday. He
claims that he once told Ben before when he was stricken with a
bottle by Marivic Genosa that he should leave her and that Ben
would always take her back after she would leave him so many
times.
Basobas could not remember when Marivic had hit Ben, but it
was a long time that they had been quarreling. He said Ben even
had a wound on the right forehead. He had known the couple for
only one (1) year.
6. Marivic testified that after the first year of marriage, Ben
became cruel to her and was a habitual drinker. She said he
provoked her, he would slap her, sometimes he would pin her
down on the bed, and sometimes beat her.
These incidents happened several times and she would often run
home to her parents, but Ben would follow her and seek her out,
promising to change and would ask for her forgiveness. She said
after she would be beaten, she would seek medical help from Dr.
Dino Caing, Dr. Lucero and Dra. Cerillo. These doctors would
enter the injuries inflicted upon her by Ben into their reports.
Marivic said Ben would beat her or quarrel with her every time he
was drunk, at least three times a week.
7. In her defense, witnesses who were not so closely related to
Marivic, testified as to the abuse and violence she received at the
hands of Ben.
7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the
Genosas, testified that on November 15, 1995, he overheard a
quarrel between Ben and Marivic. Marivic was shouting for help
and through the open jalousies, he saw the spouses grappling
with each other. Ben had Marivic in a choke hold. He did not do
anything, but had come voluntarily to testify. (Please note this
was the same night as that testified to by Arturo Busabos.[8])
7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of
Mr. Joe Barrientos, testified that he heard his neighbor Marivic
shouting on the night of November 15, 1995. He peeped through
the window of his hut which is located beside the Genosa house
and saw the spouses grappling with each other then Ben Genosa
was holding with his both hands the neck of the accused, Marivic
Genosa. He said after a while, Marivic was able to extricate
he[r]self and enter the room of the children. After that, he went
back to work as he was to go fishing that evening. He returned at

8:00 the next morning. (Again, please note that this was the same
night as that testified to by Arturo Basobas).
7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas
while they were living in Isabel, Leyte. His house was located
about fifty (50) meters from theirs. Marivic is his niece and he
knew them to be living together for 13 or 14 years. He said the
couple was always quarreling. Marivic confided in him that Ben
would pawn items and then would use the money to gamble. One
time, he went to their house and they were quarreling. Ben was
so angry, but would be pacified if somebody would come. He
testified that while Ben was alive he used to gamble and when he
became drunk, he would go to our house and he will say, Teody
because that was what he used to call me, mokimas ta, which
means lets go and look for a whore. Mr. Sarabia further testified
that Ben would box his wife and I would see bruises and one time
she ran to me, I noticed a wound (the witness pointed to his right
breast) as according to her a knife was stricken to her. Mr.
Sarabia also said that once he saw Ben had been injured too. He
said he voluntarily testified only that morning.
7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of
Marivic, testified that in the afternoon of November 15, 1995,
Marivic went to her house and asked her help to look for Ben.
They searched in the market place, several taverns and some
other places, but could not find him. She accompanied Marivic
home. Marivic wanted her to sleep with her in the Genosa house
because she might be battered by her husband. When they got to
the Genosa house at about 7:00 in the evening, Miss Arano said
that her husband was already there and was drunk. Miss Arano
knew he was drunk because of his staggering walking and I can
also detect his face. Marivic entered the house and she heard
them quarrel noisily. (Again, please note that this is the same
night as that testified to by Arturo Basobas) Miss Arano testified
that this was not the first time Marivic had asked her to sleep in
the house as Marivic would be afraid every time her husband
would come home drunk. At one time when she did sleep over,
she was awakened at 10:00 in the evening when Ben arrived
because the couple were very noisy in the sala and I had heard
something was broken like a vase. She said Marivic ran into her
room and they locked the door. When Ben couldnt get in he got a
chair and a knife and showed us the knife through the window grill
and he scared us. She said that Marivic shouted for help, but no
one came. On cross-examination, she said that when she left
Marivics house on November 15, 1995, the couple were still
quarreling.
7.5. Dr. Dino Caing, a physician testified that he and Marivic were
co-employees at PHILPHOS, Isabel, Leyte. Marivic was his
patient many times and had also received treatment from other
doctors. Dr. Caing testified that from July 6, 1989 until November
9, 1995, there were six (6) episodes of physical injuries inflicted
upon Marivic. These injuries were reported in his Out-Patient
Chart at the PHILPHOS Hospital. The prosecution admitted the
qualifications of Dr. Caing and considered him an expert witness.

xxxxxxxxx
Dr. Caings clinical history of the tension headache and
hypertention of Marivic on twenty-three (23) separate
occasions was marked at Exhibits 2 and 2-B. The OPD Chart of
Marivic at the Philphos Clinic which reflected all the consultations
made by Marivic and the six (6) incidents of physical injuries
reported was marked as Exhibit 3.
On cross-examination, Dr. Caing said that he is not a psychiatrist,
he could not say whether the injuries were directly related to the
crime committed. He said it is only a psychiatrist who is qualified
to examine the psychological make-up of the patient, whether she
is capable of committing a crime or not.
7.6 Mr. Panfilo Tero, the barangay captain in the place where the
Genosas resided, testified that about two (2) months before Ben
died, Marivic went to his office past 8:00 in the evening. She
sought his help to settle or confront the Genosa couple who were
experiencing family troubles. He told Marivic to return in the
morning, but he did not hear from her again and assumed that
they might have settled with each other or they might have
forgiven with each other.
xxxxxxxxx
Marivic said she did not provoke her husband when she got home
that night it was her husband who began the provocation. Marivic
said she was frightened that her husband would hurt her and she
wanted to make sure she would deliver her baby safely. In fact,
Marivic had to be admitted later at the Rizal Medical Centre as
she was suffering from eclampsia and hypertension, and the baby
was born prematurely on December 1, 1995.
Marivic testified that during her marriage she had tried to leave
her husband at least five (5) times, but that Ben would always
follow her and they would reconcile. Marivic said that the reason
why Ben was violent and abusive towards her that night was
because he was crazy about his recent girlfriend, Lulu x x x
Rubillos.
On cross-examination, Marivic insisted she shot Ben with a gun;
she said that he died in the bedroom; that their quarrels could be
heard by anyone passing their house; that Basobas lied in his
testimony; that she left for Manila the next day, November 16,
1995; that she did not bother anyone in Manila, rented herself a
room, and got herself a job as a field researcher under the alias
Marvelous Isidro; she did not tell anyone that she was leaving
Leyte, she just wanted to have a safe delivery of her baby; and
that she was arrested in San Pablo, Laguna.
Answering questions from the Court, Marivic said that she threw
the gun away; that she did not know what happened to the pipe
she used to smash him once; that she was wounded by Ben on
her wrist with the bolo; and that two (2) hours after she was

whirled by Ben, he kicked her ass and dragged her towards the
drawer when he saw that she had packed his things.

The Honorable Court allowed the withdrawal of Atty. Tabucanon

and permitted the entry of appearance of undersigned counsel.

9. The body of Ben Genosa was found on November 18, 1995

after an investigation was made of the foul odor emitting from the
Genosa residence. This fact was testified to by all the prosecution
witnesses and some defense witnesses during the trial.

15. Without the knowledge of counsel, Marivic Genosa wrote a

letter dated 20 January 2000, to the Chief Justice, coursing the
same through Atty. Teresita G. Dimaisip, Deputy Clerk of Court of
Chief Judicial Records Office, wherein she submitted her Brief
without counsels to the Court.

10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health

Officer of Isabel, Leyte at the time of the incident, and among her
responsibilities as such was to take charge of all medico-legal
cases, such as the examination of cadavers and the autopsy of
cadavers. Dra. Cerillo is not a forensic pathologist. She merely
took the medical board exams and passed in 1986. She was
called by the police to go to the Genosa residence and when she
got there, she saw some police officer and neighbor around. She
saw Ben Genosa, covered by a blanket, lying in a semi-prone
position with his back to the door. He was wearing only a brief.
xxxxxxxxx
Dra. Cerillo said that there is only one injury and that is the injury
involving the skeletal area of the head which she described as a
fracture. And that based on her examination, Ben had been dead
2 or 3 days. Dra. Cerillo did not testify as to what caused his
death.
Dra. Cerillo was not cross-examined by defense counsel.
11. The Information, dated November 14, 1996, filed against
Marivic Genosa charged her with the crime of PARRICIDE
committed with intent to kill, with treachery and evidence
premeditation, x x x wilfully, unlawfully and feloniously attack,
assault, hit and wound x x x her legitimate husband, with the use
of a hard deadly weapon x x x which caused his death.
12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July
1997, 17, 22 and 23 September 1997, 12 November 1997, 15 and
16 December 1997, 22 May 1998, and 5 and 6 August 1998.
13. On 23 September 1998, or only fifty (50) days from the day of
the last trial date, the Hon. Fortunito L. Madrona, Presiding Judge,
RTC-Branch 35, Ormoc City, rendered a JUDGMENT finding
Marivic guilty beyond reasonable doubt of the crime of parricide,
and further found treachery as an aggravating circumstance, thus
sentencing her to the ultimate penalty of DEATH.
14. The case was elevated to this Honorable Court upon
automatic review and, under date of 24 January 2000, Marivics
trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to
Withdraw as counsel, attaching thereto, as a precautionary
measure, two (2) drafts of Appellants Briefs he had prepared for
Marivic which, for reasons of her own, were not conformed to by
her.

This letter was stamp-received by the Honorable Court on 4

February 2000.
16. In the meantime, under date of 17 February 2000, and stampreceived by the Honorable Court on 19 February 2000,
undersigned counsel filed an URGENT OMNIBUS MOTION
praying that the Honorable Court allow the exhumation of Ben
Genosa and the re-examination of the cause of his death; allow
the examination of Marivic Genosa by qualified psychologists and
psychiatrists to determine her state of mind at the time she killed
her husband; and finally, to allow a partial re-opening of the
case a quo to take the testimony of said psychologists and
psychiatrists.
Attached to the URGENT OMNIBUS MOTION was a letter of Dr.
Raquel Fortun, then the only qualified forensic pathologist in the
country, who opined that the description of the death wound (as
culled from the post-mortem findings, Exhibit A) is more akin to a
gunshot wound than a beating with a lead pipe.
17. In a RESOLUTION dated 29 September 2000, the Honorable
Court partly granted Marivics URGENT OMNIBUS MOTION and
remanded the case to the trial court for the reception of expert
psychological and/or psychiatric opinion on the battered woman
syndrome plea, within ninety (90) days from notice, and,
thereafter to forthwith report to this Court the proceedings taken,
together with the copies of the TSN and relevant documentary
evidence, if any, submitted.
18. On 15 January 2001, Dra. Natividad A. Dayan appeared and
testified before the Hon. Fortunito L. Madrona, RTC-Branch 35,
Ormoc City.
Immediately before Dra. Dayan was sworn, the Court a quo asked
if she had interviewed Marivic Genosa. Dra. Dayan informed the
Court that interviews were done at the Penal Institution in 1999,
but that the clinical interviews and psychological assessment
were done at her clinic.
Dra. Dayan testified that she has been a clinical psychologist for
twenty (20) years with her own private clinic and connected
presently to the De La Salle University as a professor. Before this,
she was the Head of the Psychology Department of the
Assumption College; a member of the faculty of Psychology at the
Ateneo de Manila University and St. Josephs College; and was
the counseling psychologist of the National Defense College. She

has an AB in Psychology from the University of the Philippines, a

Master of Arts in Clinical [Counseling], Psychology from the
Ateneo, and a PhD from the U.P. She was the past president of
the Psychological Association of the Philippines and is a member
of the American Psychological Association. She is the secretary of
the International Council of Psychologists from about 68
countries; a member of the Forensic Psychology Association; and
a member of the ASEAN [Counseling] Association. She is actively
involved with the Philippine Judicial Academy, recently lecturing
on the socio-demographic and psychological profile of families
involved in domestic violence and nullity cases. She was with the
Davide Commission doing research about Military Psychology.
She has written a book entitled Energy Global Psychology
(together with Drs. Allan Tan and Allan Bernardo). The Genosa
case is the first time she has testified as an expert on battered
women as this is the first case of that nature.
Dra. Dayan testified that for the research she conducted, on the
socio-demographic and psychological profile of families involved
in domestic violence, and nullity cases, she looked at about 500
cases over a period of ten (10) years and discovered that there
are lots of variables that cause all of this marital conflicts, from
domestic violence to infidelity, to psychiatric disorder.
Dra. Dayan described domestic violence to comprise of a lot of
incidents of psychological abuse, verbal abuse, and emotional
abuse to physical abuse and also sexual abuse.
xxxxxxxxx
Dra. Dayan testified that in her studies, the battered woman
usually has a very low opinion of herself. She has a self-defeating
and self-sacrificing characteristics. x x x they usually think very
lowly of themselves and so when the violence would happen, they
usually think that they provoke it, that they were the one who
precipitated the violence, they provoke their spouse to be
physically, verbally and even sexually abusive to them. Dra.
Dayan said that usually a battered x x x comes from a
dysfunctional family or from broken homes.
Dra. Dayan said that the batterer, just like the battered woman,
also has a very low opinion of himself. But then emerges to have
superiority complex and it comes out as being very arrogant, very
hostile, very aggressive and very angry. They also had (sic) a
very low tolerance for frustrations. A lot of times they are involved
in vices like gambling, drinking and drugs. And they become
violent. The batterer also usually comes from a dysfunctional
family which over-pampers them and makes them feel entitled to
do anything. Also, they see often how their parents abused each
other so there is a lot of modeling of aggression in the family.
Dra. Dayan testified that there are a lot of reasons why a battered
woman does not leave her husband: poverty, self-blame and guilt
that she provoked the violence, the cycle itself which makes her

hope her husband will change, the belief in her obligations to

keep the family intact at all costs for the sake of the children.
xxxxxxxxx
Dra. Dayan said that abused wives react differently to the
violence: some leave the house, or lock themselves in another
room, or sometimes try to fight back triggering physical violence
on both of them. She said that in a normal marital relationship,
abuses also happen, but these are not consistent, not chronic, are
not happening day in [and] day out. In an abnormal marital
relationship, the abuse occurs day in and day out, is long lasting
and even would cause hospitalization on the victim and even
death on the victim.
xxxxxxxxx
Dra. Dayan said that as a result of the battery of psychological
tests she administered, it was her opinion that Marivic fits the
profile of a battered woman because inspite of her feeling of selfconfidence which we can see at times there are really feeling (sic)
of loss, such feelings of humiliation which she sees herself as
damaged and as a broken person. And at the same time she still
has the imprint of all the abuses that she had experienced in the
past.
xxxxxxxxx
Dra. Dayan said Marivic thought of herself as a loving wife and
did not even consider filing for nullity or legal separation inspite of
the abuses. It was at the time of the tragedy that Marivic then
thought of herself as a victim.
xxxxxxxxx
19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who
has since passed away, appeared and testified before RTCBranch 35, Ormoc City.
Dr. Pajarillo was a Diplomate of the Philippine Board of
Psychiatry; a Fellow of the Philippine Board of Psychiatry and a
Fellow of the Philippine Psychiatry Association. He was in the
practice of psychiatry for thirty-eight (38) years. Prior to being in
private practice, he was connected with the Veterans Memorial
Medical Centre where he gained his training on psychiatry and
neurology. After that, he was called to active duty in the Armed
Forces of the Philippines, assigned to the V. Luna Medical Center
for twenty six (26) years. Prior to his retirement from government
service, he obtained the rank of Brigadier General. He obtained
his medical degree from the University of Santo Tomas. He was
also a member of the World Association of Military Surgeons; the
Quezon City Medical Society; the Cagayan Medical Society; and
the Philippine Association of Military Surgeons.
He authored The Comparative Analysis of Nervous Breakdown in
the Philippine Military Academy from the Period 1954 1978 which

was presented twice in international congresses. He also

authored The Mental Health of the Armed Forces of the
Philippines 2000, which was likewise published internationally and
locally. He had a medical textbook published on the use of
Prasepam on a Parke-Davis grant; was the first to use Enanthate
(siquiline), on an E.R. Squibb grant; and he published the use of
the drug Zopiclom in 1985-86.

and love of the parents. As to the batterer, he normally

internalizes what is around him within the environment. And it
becomes his own personality. He is very competitive; he is aiming
high all the time; he is so macho; he shows his strong faade but in
it there are doubts in himself and prone to act without thinking.

Dr. Pajarillo explained that psychiatry deals with the functional

disorder of the mind and neurology deals with the ailment of the
brain and spinal cord enlarged. Psychology, on the other hand, is
a bachelor degree and a doctorate degree; while one has to finish
medicine to become a specialist in psychiatry.

Dr. Pajarillo emphasized that even though without the presence of

the precipator (sic) or the one who administered the battering, that
re-experiencing of the trauma occurred (sic) because the
individual cannot control it. It will just come up in her mind or in his
mind.

Even only in his 7th year as a resident in V. Luna Medical Centre,

Dr. Pajarillo had already encountered a suit involving violent
family relations, and testified in a case in 1964. In the Armed
Forces of the Philippines, violent family disputes abound, and he
has seen probably ten to twenty thousand cases. In those days,
the primordial intention of therapy was reconciliation. As a result
of his experience with domestic violence cases, he became a
consultant of the Battered Woman Office in Quezon City under
Atty. Nenita Deproza.

xxxxxxxxx

As such consultant, he had seen around forty (40) cases of

severe domestic violence, where there is physical abuse: such as
slapping, pushing, verbal abuse, battering and boxing a woman
even to an unconscious state such that the woman is sometimes
confined. The affliction of Post-Traumatic Stress Disorder
depends on the vulnerability of the victim. Dr. Pajarillo said that if
the victim is not very healthy, perhaps one episode of violence
may induce the disorder; if the psychological stamina and
physiologic constitutional stamina of the victim is stronger, it will
take more repetitive trauma to precipitate the post-traumatic
stress disorder and this x x x is very dangerous.

xxxxxxxxx

In psychiatry, the post-traumatic stress disorder is incorporated

under the anxiety neurosis or neurologic anxcietism. It is
produced by overwhelming brutality, trauma.
xxxxxxxxx
Dr. Pajarillo explained that with neurotic anxiety, the victim relives
the beating or trauma as if it were real, although she is not
actually being beaten at that time. She thinks of nothing but the
suffering.
xxxxxxxxx
A woman who suffers battery has a tendency to become neurotic,
her emotional tone is unstable, and she is irritable and restless.
She tends to become hard-headed and persistent. She has higher
sensitivity and her self-world is damaged.
Dr. Pajarillo said that an abnormal family background relates to an
individuals illness, such as the deprivation of the continuous care

xxxxxxxxx

Dr. Pajarillo said that a woman suffering post traumatic stress

disorder try to defend themselves, and primarily with knives.
Usually pointed weapons or any weapon that is available in the
immediate surrounding or in a hospital x x x because that abound
in the household. He said a victim resorts to weapons when she
has reached the lowest rock bottom of her life and there is no
other recourse left on her but to act decisively.

Dr. Pajarillo testified that he met Marivic Genosa in his office in an

interview he conducted for two (2) hours and seventeen (17)
minutes. He used the psychological evaluation and social case
studies as a help in forming his diagnosis. He came out with a
Psychiatric Report, dated 22 January 2001.
xxxxxxxxx
On cross-examination by the private prosecutor, Dr. Pajarillo said
that at the time she killed her husband Marivicc mental condition
was that she was re-experiencing the trauma. He said that we are
trying to explain scientifically that the re-experiencing of the
trauma is not controlled by Marivic. It will just come in flashes and
probably at that point in time that things happened when the reexperiencing of the trauma flashed in her mind. At the time he
interviewed Marivic she was more subdued, she was not super
alert anymore x x x she is mentally stress (sic) because of the
predicament she is involved.
xxxxxxxxx
20. No rebuttal evidence or testimony was presented by either the
private or the public prosecutor. Thus, in accord with the
Resolution of this Honorable Court, the records of the partially reopened trial a quo were elevated.[9]
Ruling of the Trial Court
Finding the proffered theory of self-defense untenable, the RTC
gave credence to the prosecution evidence that appellant had

10

killed the deceased while he was in bed sleeping. Further, the trial
court appreciated the generic aggravating circumstance of
treachery, because Ben Genosa was supposedly defenseless
when he was killed -- lying in bed asleep when Marivic smashed
him with a pipe at the back of his head.

beater; and further gravely erred in concluding that Ben Genosa

was a battered husband.

The capital penalty having been imposed, the case was elevated
to this Court for automatic review.

6. The trial court gravely erred in concluding that Marivics flight to

Manila and her subsequent apologies were indicia of guilt, instead
of a clear attempt to save the life of her unborn child.

Supervening Circumstances
On February 19, 2000, appellant filed an Urgent Omnibus Motion
praying that this Court allow (1) the exhumation of Ben Genosa
and the reexamination of the cause of his death; (2) the
examination of appellant by qualified psychologists and
psychiatrists to determine her state of mind at the time she had
killed her spouse; and (3) the inclusion of the said experts reports
in the records of the case for purposes of the automatic review or,
in the alternative, a partial reopening of the case for the lower
court to admit the experts testimonies.
On September 29, 2000, this Court issued a Resolution granting
in part appellants Motion, remanding the case to the trial court for
the reception of expert psychological and/or psychiatric opinion on
the battered woman syndrome plea; and requiring the lower court
to report thereafter to this Court the proceedings taken as well as
to submit copies of the TSN and additional evidence, if any.
Acting on the Courts Resolution, the trial judge authorized the
examination of Marivic by two clinical psychologists, Drs.
Natividad Dayan[10]and Alfredo Pajarillo,[11] supposedly experts on
domestic violence. Their testimonies, along with their
documentary evidence, were then presented to and admitted by
the lower court before finally being submitted to this Court to form
part of the records of the case.[12]
The Issues
Appellant assigns the following alleged errors of the trial court for
this Courts consideration:
1. The trial court gravely erred in promulgating an obviously hasty
decision without reflecting on the evidence adduced as to selfdefense.
2. The trial court gravely erred in finding as a fact that Ben and
Marivic Genosa were legally married and that she was therefore
liable for parricide.
3. The trial court gravely erred finding the cause of death to be by
beating with a pipe.
4. The trial court gravely erred in ignoring and disregarding
evidence adduced from impartial and unbiased witnesses that
Ben Genosa was a drunk, a gambler, a womanizer and wife-

5. The trial court gravely erred in not requiring testimony from the
children of Marivic Genosa.

7. The trial court gravely erred in concluding that there was an

aggravating circumstance of treachery.
8. The trial court gravely erred in refusing to re-evaluate the
traditional elements in determining the existence of self-defense
and defense of foetus in this case, thereby erroneously convicting
Marivic Genosa of the crime of parricide and condemning her to
the ultimate penalty of death.[13]
In the main, the following are the essential legal issues: (1)
whether appellant acted in self-defense and in defense of her
fetus; and (2) whether treachery attended the killing of Ben
Genosa.
The Courts Ruling
The appeal is partly meritorious.
Collateral Factual Issues
The first six assigned errors raised by appellant are factual in
nature, if not collateral to the resolution of the principal issues. As
consistently held by this Court, the findings of the trial court on the
credibility of witnesses and their testimonies are entitled to a high
degree of respect and will not be disturbed on appeal in the
absence of any showing that the trial judge gravely abused his
discretion or overlooked, misunderstood or misapplied material
facts or circumstances of weight and substance that could affect
the outcome of the case.[14]
In appellants first six assigned items, we find no grave abuse of
discretion, reversible error or misappreciation of material facts
that would reverse or modify the trial courts disposition of the
case. In any event, we will now briefly dispose of these alleged
errors of the trial court.
First, we do not agree that the lower court promulgated an
obviously hasty decision without reflecting on the evidence
adduced as to self-defense. We note that in his 17-page Decision,
Judge Fortunito L. Madrona summarized the testimonies of both
the prosecution and the defense witnesses and -- on the basis of
those and of the documentary evidence on record -- made his
evaluation, findings and conclusions. He wrote a 3-page
discourse assessing the testimony and the self-defense theory of
the accused. While she, or even this Court, may not agree with
the trial judges conclusions, we cannot peremptorily conclude,

11

absent substantial evidence, that he failed to reflect on the

evidence presented.
Neither do we find the appealed Decision to have been made in
an obviously hasty manner. The Information had been filed with
the lower court on November 14, 1996. Thereafter, trial began
and at least 13 hearings were held for over a year. It took the trial
judge about two months from the conclusion of trial to promulgate
his judgment. That he conducted the trial and resolved the case
with dispatch should not be taken against him, much less used to
condemn him for being unduly hasty. If at all, the dispatch with
which he handled the case should be lauded. In any case, we find
his actions in substantial compliance with his constitutional
obligation.[15]
Second, the lower court did not err in finding as a fact that Ben
Genosa and appellant had been legally married, despite the nonpresentation of their marriage contract. In People v. Malabago,
[16]
this Court held:
The key element in parricide is the relationship of the offender
with the victim. In the case of parricide of a spouse, the best proof
of the relationship between the accused and the deceased is the
marriage certificate. In the absence of a marriage certificate,
however, oral evidence of the fact of marriage may be considered
by the trial court if such proof is not objected to.
Two of the prosecution witnesses -- namely, the mother and the
brother of appellants deceased spouse -- attested in court that
Ben had been married to Marivic.[17] The defense raised no
objection to these testimonies. Moreover, during her direct
examination, appellant herself made a judicial admission of her
marriage to Ben.[18] Axiomatic is the rule that a judicial admission
is conclusive upon the party making it, except only when there is
a showing that (1) the admission was made through a palpable
mistake, or (2) no admission was in fact made.[19]Other than
merely attacking the non-presentation of the marriage contract,
the defense offered no proof that the admission made by
appellant in court as to the fact of her marriage to the deceased
was made through a palpable mistake.
Third, under the circumstances of this case, the specific or direct
cause of Bens death -- whether by a gunshot or by beating with a
pipe -- has no legal consequence. As the Court elucidated in its
September 29, 2000 Resolution, [c]onsidering that the appellant
has admitted the fact of killing her husband and the acts of hitting
his nape with a metal pipe and of shooting him at the back of his
head, the Court believes that exhumation is unnecessary, if not
immaterial, to determine which of said acts actually caused the
victims death. Determining which of these admitted acts caused
the death is not dispositive of the guilt or defense of appellant.
Fourth, we cannot fault the trial court for not fully appreciating
evidence that Ben was a drunk, gambler, womanizer and wifebeater. Until this case came to us for automatic review, appellant

had not raised the novel defense of battered woman syndrome,

for which such evidence may have been relevant. Her theory of
self-defense was then the crucial issue before the trial court. As
will be discussed shortly, the legal requisites of self-defense under
prevailing jurisprudence ostensibly appear inconsistent with the
surrounding facts that led to the death of the victim. Hence, his
personal character, especially his past behavior, did not constitute
vital evidence at the time.
Fifth, the trial court surely committed no error in not requiring
testimony from appellants children. As correctly elucidated by the
solicitor general, all criminal actions are prosecuted under the
direction and control of the public prosecutor, in whom lies the
discretion to determine which witnesses and evidence are
necessary to present.[20] As the former further points out, neither
the trial court nor the prosecution prevented appellant from
presenting her children as witnesses. Thus, she cannot now fault
the lower court for not requiring them to testify.
Finally, merely collateral or corroborative is the matter of whether
the flight of Marivic to Manila and her subsequent apologies to her
brother-in-law are indicia of her guilt or are attempts to save the
life of her unborn child. Any reversible error as to the trial courts
appreciation of these circumstances has little bearing on the final
resolution of the case.
First Legal Issue:
Self-Defense and Defense of a Fetus
Appellant admits killing Ben Genosa but, to avoid criminal liability,
invokes self-defense and/or defense of her unborn child. When
the accused admits killing the victim, it is incumbent upon her to
prove any claimed justifying circumstance by clear and convincing
evidence.[21]Well-settled is the rule that in criminal cases, selfdefense (and similarly, defense of a stranger or third person)
shifts the burden of proof from the prosecution to the defense.[22]
The Battered Woman Syndrome
In claiming self-defense, appellant raises the novel theory of the
battered woman syndrome. While new in Philippine jurisprudence,
the concept has been recognized in foreign jurisdictions as a form
of self-defense or, at the least, incomplete self-defense.[23] By
appreciating evidence that a victim or defendant is afflicted with
the syndrome, foreign courts convey their understanding of the
justifiably fearful state of mind of a person who has been cyclically
abused and controlled over a period of time.[24]
A battered woman has been defined as a woman who is
repeatedly subjected to any forceful physical or psychological
behavior by a man in order to coerce her to do something he
wants her to do without concern for her rights. Battered women
include wives or women in any form of intimate relationship with
men. Furthermore, in order to be classified as a battered woman,

12

the couple must go through the battering cycle at least twice. Any
woman may find herself in an abusive relationship with a man
once. If it occurs a second time, and she remains in the situation,
she is defined as a battered woman.[25]
Battered women exhibit common personality traits, such as low
self-esteem, traditional beliefs about the home, the family and the
female sex role; emotional dependence upon the dominant male;
the tendency to accept responsibility for the batterers actions; and
false hopes that the relationship will improve.[26]
More graphically, the battered woman syndrome is characterized
by the so-called cycle of violence,[27] which has three phases: (1)
the tension-building phase; (2) the acute battering incident; and
(3) the tranquil, loving (or, at least, nonviolent) phase.[28]
During the tension-building phase, minor battering occurs -- it
could be verbal or slight physical abuse or another form of hostile
behavior. The woman usually tries to pacify the batterer through a
show of kind, nurturing behavior; or by simply staying out of his
way. What actually happens is that she allows herself to be
abused in ways that, to her, are comparatively minor. All she
wants is to prevent the escalation of the violence exhibited by the
batterer. This wish, however, proves to be double-edged, because
her placatory and passive behavior legitimizes his belief that he
has the right to abuse her in the first place.
However, the techniques adopted by the woman in her effort to
placate him are not usually successful, and the verbal and/or
physical abuse worsens. Each partner senses the imminent loss
of control and the growing tension and despair. Exhausted from
the persistent stress, the battered woman soon withdraws
emotionally. But the more she becomes emotionally unavailable,
the more the batterer becomes angry, oppressive and abusive.
Often, at some unpredictable point, the violence spirals out of
control and leads to an acute battering incident.[29]
The acute battering incident is said to be characterized by
brutality, destructiveness and, sometimes, death. The battered
woman deems this incident as unpredictable, yet also inevitable.
During this phase, she has no control; only the batterer may put
an end to the violence. Its nature can be as unpredictable as the
time of its explosion, and so are his reasons for ending it. The
battered woman usually realizes that she cannot reason with him,
and that resistance would only exacerbate her condition.
At this stage, she has a sense of detachment from the attack and
the terrible pain, although she may later clearly remember every
detail. Her apparent passivity in the face of acute violence may be
rationalized thus: the batterer is almost always much stronger
physically, and she knows from her past painful experience that it
is futile to fight back. Acute battering incidents are often very
savage and out of control, such that innocent bystanders or
intervenors are likely to get hurt.[30]

The final phase of the cycle of violence begins when the acute
battering incident ends. During this tranquil period, the couple
experience profound relief. On the one hand, the batterer may
show a tender and nurturing behavior towards his partner. He
knows that he has been viciously cruel and tries to make up for it,
begging for her forgiveness and promising never to beat her
again. On the other hand, the battered woman also tries to
convince herself that the battery will never happen again; that her
partner will change for the better; and that this good, gentle and
caring man is the real person whom she loves.
A battered woman usually believes that she is the sole anchor of
the emotional stability of the batterer. Sensing his isolation and
despair, she feels responsible for his well-being. The truth,
though, is that the chances of his reforming, or seeking or
receiving professional help, are very slim, especially if she
remains with him. Generally, only after she leaves him does he
seek professional help as a way of getting her back. Yet, it is in
this phase of remorseful reconciliation that she is most thoroughly
tormented psychologically.
The illusion of absolute interdependency is well-entrenched in a
battered womans psyche. In this phase, she and her batterer are
indeed emotionally dependent on each other -- she for his
nurturant behavior, he for her forgiveness. Underneath this
miserable cycle of tension, violence and forgiveness, each partner
may believe that it is better to die than to be separated. Neither
one may really feel independent, capable of functioning without
the other.[31]
History of Abuse
in the Present Case
To show the history of violence inflicted upon appellant, the
defense presented several witnesses. She herself described her
heart-rending experience as follows:
ATTY. TABUCANON
Q How did you describe your marriage with Ben Genosa?
A In the first year, I lived with him happily but in the subsequent
year he was cruel to me and a behavior of habitual drinker.
Q You said that in the subsequent year of your marriage, your
husband was abusive to you and cruel. In what way was this
abusive and cruelty manifested to you?
A He always provoke me in everything, he always slap me and
sometimes he pinned me down on the bed and sometimes beat
me.
Q How many times did this happen?
A Several times already.

13

Q What did you do when these things happen to you?

Q Do you mean three times a week he would beat you?

A I went away to my mother and I ran to my father and we

separate each other.

A Not necessarily that he would beat me but sometimes he will

just quarrel me. [32]

Q What was the action of Ben Genosa towards you leaving

home?

Referring to his Out-Patient Chart[33] on Marivic Genosa at the

Philphos Hospital, Dr. Dino D. Caing bolstered her foregoing
testimony on chronic battery in this manner:

A He is following me, after that he sought after me.

Q What will happen when he follow you?

Q So, do you have a summary of those six (6) incidents which are
found in the chart of your clinic?

A He said he changed, he asked for forgiveness and I was

convinced and after that I go to him and he said sorry.

A Yes, sir.

Q During those times that you were the recipient of such cruelty
and abusive behavior by your husband, were you able to see a
doctor?
A Yes, sir.
Q Who are these doctors?
A The company physician, Dr. Dino Caing, Dr. Lucero and Dra.
Cerillo.

Q Who prepared the list of six (6) incidents, Doctor?

A I did.
Q Will you please read the physical findings together with the
dates for the record.
A 1. May 12, 1990 - physical findings are as follows: Hematoma
(R) lower eyelid and redness of eye. Attending physician: Dr.
Lucero;

xxxxxxxxx

2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area,

pain and contusion (R) breast. Attending physician: Dr. Canora;

Q You said that you saw a doctor in relation to your injuries?

3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;

A Yes, sir.

4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma.

Attending physician: Dr. Caing;

Q Who inflicted these injuries?

A Of course my husband.
Q You mean Ben Genosa?
A Yes, sir.
xxxxxxxxx
[Court] /to the witness
Q How frequent was the alleged cruelty that you said?
A Everytime he got drunk.
Q No, from the time that you said the cruelty or the infliction of
injury inflicted on your occurred, after your marriage, from that
time on, how frequent was the occurrence?
A Everytime he got drunk.
Q Is it daily, weekly, monthly or how many times in a month or in a
week?

5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending

physician: Dr. Canora; and
6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion
Pregnancy. Attending physician: Dr. Canora.
Q Among the findings, there were two (2) incidents wherein you
were the attending physician, is that correct?
A Yes, sir.
Q Did you actually physical examine the accused?
A Yes, sir.
Q Now, going to your finding no. 3 where you were the one who
attended the patient. What do you mean by abrasion furuncle left
axilla?
A Abrasion is a skin wound usually when it comes in contact with
something rough substance if force is applied.
Q What is meant by furuncle axilla?

A Three times a week.

14

A It is secondary of the light infection over the abrasion.

Q What is meant by pain mastitis secondary to trauma?
A So, in this 4th episode of physical injuries there is an
inflammation of left breast. So, [pain] meaning there is
tenderness. When your breast is traumatized, there is tenderness
pain.
Q So, these are objective physical injuries. Doctor?
xxxxxxxxx
Q Were you able to talk with the patient?
A Yes, sir.
Q What did she tell you?
A As a doctor-patient relationship, we need to know the cause of
these injuries. And she told me that it was done to her by her
husband.
Q You mean, Ben Genosa?
A Yes, sir.
xxxxxxxxx
ATTY. TABUCANON:

Q What was your November 6, 1995 examination, was it an

examination about her pregnancy or for some other findings?
A No, she was admitted for hypertension headache which
complicates her pregnancy.
Q When you said admitted, meaning she was confined?
A Yes, sir.
Q For how many days?
A One day.
Q Where?
A At PHILPHOS Hospital.
xxxxxxxxx
Q Lets go back to the clinical history of Marivic Genosa. You said
that you were able to examine her personally on November 6,
1995 and she was 8 months pregnant.
What is this all about?
A Because she has this problem of tension headache secondary
to hypertension and I think I have a record here, also the same
period from 1989 to 1995, she had a consultation for twenty-three
(23) times.

Q By the way Doctor, were you able to physical examine the

accused sometime in the month of November, 1995 when this
incident happened?

Q For what?

A As per record, yes.

Q Can we say that specially during the latter consultation, that the
patient had hypertension?

Q What was the date?

A It was on November 6, 1995.
Q So, did you actually see the accused physically?
A Yes, sir.
Q On November 6, 1995, will you please tell this Honorable Court,
was the patient pregnant?
A Yes, sir.
Q Being a doctor, can you more engage at what stage of
pregnancy was she?
A Eight (8) months pregnant.
Q So in other words, it was an advance stage of pregnancy?

A Tension headache.

A The patient definitely had hypertension. It was refractory to our

treatment. She does not response when the medication was given
to her, because tension headache is more or less stress related
and emotional in nature.
Q What did you deduce of tension headache when you said is
emotional in nature?
A From what I deduced as part of our physical examination of the
patient is the family history in line of giving the root cause of what
is causing this disease. So, from the moment you ask to the
patient all comes from the domestic problem.
Q You mean problem in her household?
A Probably.
Q Can family trouble cause elevation of blood pressure, Doctor?

A Yes, sir.

15

A Yes, if it is emotionally related and stressful it can cause

increases in hypertension which is unfortunately does not
response to the medication.
Q In November 6, 1995, the date of the incident, did you take the
blood pressure of the accused?
A On November 6, 1995 consultation, the blood pressure was
180/120.
Q Is this considered hypertension?
A Yes, sir, severe.
Q Considering that she was 8 months pregnant, you mean this is
dangerous level of blood pressure?
A It was dangerous to the child or to the fetus. [34]
Another defense witness, Teodoro Sarabia, a former neighbor of
the Genosas in Isabel, Leyte, testified that he had seen the
couple quarreling several times; and that on some occasions
Marivic would run to him with bruises, confiding that the injuries
were inflicted upon her by Ben.[35]
Ecel Arano also testified[36] that for a number of times she had
been asked by Marivic to sleep at the Genosa house, because
the latter feared that Ben would come home drunk and hurt her.
On one occasion that Ecel did sleep over, she was awakened
about ten oclock at night, because the couple were very noisy and
I heard something was broken like a vase. Then Marivic came
running into Ecels room and locked the door. Ben showed up by
the window grill atop a chair, scaring them with a knife.
On the afternoon of November 15, 1995, Marivic again asked her
help -- this time to find Ben -- but they were unable to. They
returned to the Genosa home, where they found him already
drunk. Again afraid that he might hurt her, Marivic asked her to
sleep at their house. Seeing his state of drunkenness, Ecel
hesitated; and when she heard the couple start arguing, she
decided to leave.
On that same night that culminated in the death of Ben Genosa,
at least three other witnesses saw or heard the couple quarreling.
[37]
Marivic relates in detail the following backdrop of the fateful
night when life was snuffed out of him, showing in the process a
vivid picture of his cruelty towards her:

where was his father, then my second child said, he was not
home yet. I was worried because that was payday, I was
anticipating that he was gambling. So while waiting for him, my
eldest son arrived from school, I prepared dinner for my children.
Q This is evening of November 15, 1995?
A Yes, sir.
Q What time did Ben Genosa arrive?
A When he arrived, I was not there, I was in Isabel looking for
him.
Q So when he arrived you were in Isabel looking for him?
A Yes, sir.
Q Did you come back to your house?
A Yes, sir.
Q By the way, where was your conjugal residence situated this
time?
A Bilwang.
Q Is this your house or you are renting?
A Renting.
Q What time were you able to come back in your residence at
Bilwang?
A I went back around almost 8:00 oclock.
Q What happened when you arrived in your residence?
A When I arrived home with my cousin Ecel whom I requested to
sleep with me at that time because I had fears that he was again
drunk and I was worried that he would again beat me so I
requested my cousin to sleep with me, but she resisted because
she had fears that the same thing will happen again last year.
Q Who was this cousin of yours who you requested to sleep with
you?
A Ecel Arao, the one who testified.

ATTY. TABUCANON:

Q Did Ecel sleep with you in your house on that evening?

Q Please tell this Court, can you recall the incident in November
15, 1995 in the evening?

A No, because she expressed fears, she said her father would not
allow her because of Ben.

A Whole morning and in the afternoon, I was in the office working

then after office hours, I boarded the service bus and went to
Bilwang. When I reached Bilwang, I immediately asked my son,

Q During this period November 15, 1995, were you pregnant?

A Yes, 8 months.

16

Q How advance was your pregnancy?

A He cut the antenna wire to keep me from watching T.V.

A Eight (8) months.

Q What else happened after he cut the wire?

Q Was the baby subsequently born?

A He switch off the light and the children were shouting because
they were scared and he was already holding the bolo.

A Yes, sir.
Q Whats the name of the baby you were carrying at that time?
A Marie Bianca.
Q What time were you able to meet personally your husband?
A Yes, sir.

Q How do you described this bolo?

A 1 1/2 feet.
Q What was the bolo used for usually?
A For chopping meat.

Q What time?

Q You said the children were scared, what else happened as Ben
was carrying that bolo?

A When I arrived home, he was there already in his usual

behavior.

A He was about to attack me so I run to the room.

Q Will you tell this Court what was his disposition?

Q What do you mean that he was about to attack you?

A He was drunk again, he was yelling in his usual unruly behavior.

A When I attempt to run he held my hands and he whirled me and

I fell to the bedside.

Q What was he yelling all about?

Q So when he whirled you, what happened to you?

A His usual attitude when he got drunk.

A I screamed for help and then he left.

Q You said that when you arrived, he was drunk and yelling at
you? What else did he do if any?

Q You said earlier that he whirled you and you fell on the
bedside?

A He is nagging at me for following him and he dared me to

quarrel him.

A Yes, sir.

Q What was the cause of his nagging or quarreling at you if you

know?
A He was angry at me because I was following x x x him, looking
for him. I was just worried he might be overly drunk and he would
beat me again.
Q You said that he was yelling at you, what else, did he do to you
if any?
A He was nagging at me at that time and I just ignore him
because I want to avoid trouble for fear that he will beat me again.
Perhaps he was disappointed because I just ignore him of his
provocation and he switch off the light and I said to him, why did
you switch off the light when the children were there. At that time I
was also attending to my children who were doing their
assignments. He was angry with me for not answering his
challenge, so he went to the kitchen and [got] a bolo and cut the
antenna wire to stop me from watching television.
Q What did he do with the bolo?

Q You screamed for help and he left, do you know where he was
going?
A Outside perhaps to drink more.
Q When he left what did you do in that particular time?
A I packed all his clothes.
Q What was your reason in packing his clothes?
A I wanted him to leave us.
Q During this time, where were your children, what were their
reactions?
A After a couple of hours, he went back again and he got angry
with me for packing his clothes, then he dragged me again of the
bedroom holding my neck.
Q You said that when Ben came back to your house, he dragged
you? How did he drag you?
COURT INTERPRETER:

17

The witness demonstrated to the Court by using her right hand

flexed forcibly in her front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then
he kept on shouting at me that you might as well be killed so there
will be nobody to nag me.
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER:
(At this juncture the witness started crying).
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to open
the drawer but he could not open it because he did not have the
key then he pulled his wallet which contained a blade about 3
inches long and I was aware that he was going to kill me and I
smashed his arm and then the wallet and the blade fell. The one
he used to open the drawer I saw, it was a pipe about that long,
and when he was about to pick-up the wallet and the blade, I
smashed him then I ran to the other room, and on that very
moment everything on my mind was to pity on myself, then the
feeling I had on that very moment was the same when I was
admitted in PHILPHOS Clinic, I was about to vomit.
COURT INTERPRETER:
(The witness at this juncture is crying intensely).
xxxxxxxxx
ATTY. TABUCANON:
Q Talking of drawer, is this drawer outside your room?
A Outside.

A Dining.
Q Where were the children during that time?
A My children were already asleep.
Q You mean they were inside the room?
A Yes, sir.
Q You said that he dropped the blade, for the record will you
please describe this blade about 3 inches long, how does it look
like?
A Three (3) inches long and 1/2 inch wide.
Q Is it a flexible blade?
A Its a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate me. [38]
In addition, Dra. Natividad Dayan was called by the RTC to testify
as an expert witness to assist it in understanding the psyche of a
battered person. She had met with Marivic Genosa for five
sessions totaling about seventeen hours. Based on their talks, the
former briefly related the latters ordeal to the court a quo as
follows:
Q: What can you say, that you found Marivic as a battered wife?
Could you in laymans term describe to this Court what her life
was like as said to you?
A: What I remember happened then was it was more than ten
years, that she was suffering emotional anguish. There were a lot
of instances of abuses, to emotional abuse, to verbal abuse and
to physical abuse. The husband had a very meager income, she
was the one who was practically the bread earner of the family.
The husband was involved in a lot of vices, going out with
barkadas, drinking, even womanizing being involved in cockfight
and going home very angry and which will trigger a lot of physical
abuse. She also had the experience a lot of taunting from the
husband for the reason that the husband even accused her of
infidelity, the husband was saying that the child she was carrying
was not his own. So she was very angry, she was at the same
time very depressed because she was also aware, almost like

Q In what part of the house?

18

living in purgatory or even hell when it was happening day in and

day out. [39]
In cross-examining Dra. Dayan, the public prosecutor not merely
elicited, but wittingly or unwittingly put forward, additional
supporting evidence as shown below:
Q In your first encounter with the appellant in this case in 1999,
where you talked to her about three hours, what was the most
relevant information did you gather?
A The most relevant information was the tragedy that happened.
The most important information were escalating abuses that she
had experienced during her marital life.
Q Before you met her in 1999 for three hours, we presume that
you already knew of the facts of the case or at least you have
substantial knowledge of the facts of the case?

Q Being an expert witness, our jurisprudence is not complete on

saying this matter. I think that is the first time that we have this in
the Philippines, what is your opinion?
A Sir, my opinion is, she is really a battered wife and in this kind
happened, it was really a self-defense. I also believe that there
had been provocation and I also believe that she became a
disordered person. She had to suffer anxiety reaction because of
all the battering that happened and so she became an abnormal
person who had lost shes not during the time and that is why it
happened because of all the physical battering, emotional
battering, all the psychological abuses that she had experienced
from her husband.
Q I do believe that she is a battered wife. Was she extremely
battered?
A Sir, it is an extreme form of battering. Yes.[40]

A I believe I had an idea of the case, but I do not know whether I

can consider them as substantial.

Parenthetically, the credibility of appellant was demonstrated as

follows:

xxxxxxxxx

Q And you also said that you administered [the] objective

personality test, what x x x [is this] all about?

Q Did you gather an information from Marivic that on the side of

her husband they were fond of battering their wives?
A I also heard that from her?

A The objective personality test is the Millon Clinical Multiaxial

Inventory. The purpose of that test is to find out about the lying
prone[ne]ss of the person.

Q You heard that from her?

Q What do you mean by that?

A Yes, sir.

A Meaning, am I dealing with a client who is telling me the truth,

or is she someone who can exaggerate or x x x [will] tell a lie[?]

Q Did you ask for a complete example who are the relatives of
her husband that were fond of battering their wives?
A What I remember that there were brothers of her husband who
are also battering their wives.
Q Did she not inform you that there was an instance that she
stayed in a hotel in Ormoc where her husband followed her and
battered [her] several times in that room?
A She told me about that.
Q Did she inform you in what hotel in Ormoc?
A Sir, I could not remember but I was told that she was battered in
that room.
Q Several times in that room?
A Yes, sir. What I remember was that there is no problem about
being battered, it really happened.

Q And what did you discover on the basis of this objective

personality test?
A She was a person who passed the honesty test. Meaning she is
a person that I can trust. That the data that Im gathering from her
are the truth.[41]
The other expert witness presented by the defense, Dr. Alfredo
Pajarillo, testified on his Psychiatric Report,[42] which was based
on his interview and examination of Marivic Genosa. The Report
said that during the first three years of her marriage to Ben,
everything looked good -- the atmosphere was fine, normal and
happy -- until Ben started to be attracted to other girls and was
also enticed in[to] gambling[,] especially cockfighting. x x x. At the
same time Ben was often joining his barkada in drinking sprees.
The drinking sprees of Ben greatly changed the attitude he
showed toward his family, particularly to his wife. The Report
continued: At first, it was verbal and emotional abuses but as time
passed, he became physically abusive. Marivic claimed that the
viciousness of her husband was progressive every time he got
drunk. It was a painful ordeal Marivic had to anticipate whenever

19

she suspected that her husband went for a drinking [spree]. They
had been married for twelve years[;] and practically more than
eight years, she was battered and maltreated relentlessly and
mercilessly by her husband whenever he was drunk.
Marivic sought the help of her mother-in-law, but her efforts were
in vain. Further quoting from the Report, [s]he also sought the
advice and help of close relatives and well-meaning friends in
spite of her feeling ashamed of what was happening to her. But
incessant battering became more and more frequent and more
severe. x x x.[43]
From the totality of evidence presented, there is indeed no doubt
in the Courts mind that Appellant Marivic Genosa was a severely
abused person.
Effect of Battery on Appellant
Because of the recurring cycles of violence experienced by the
abused woman, her state of mind metamorphoses. In determining
her state of mind, we cannot rely merely on the judgment of an
ordinary, reasonable person who is evaluating the events
immediately surrounding the incident. A Canadian court has aptly
pointed out that expert evidence on the psychological effect of
battering on wives and common law partners are both relevant
and necessary. How can the mental state of the appellant be
appreciated without it? The average member of the public may
ask: Why would a woman put up with this kind of treatment? Why
should she continue to live with such a man? How could she love
a partner who beat her to the point of requiring hospitalization?
We would expect the woman to pack her bags and go. Where is
her self-respect? Why does she not cut loose and make a new life
for herself? Such is the reaction of the average person confronted
with the so-called battered wife syndrome.[44]
To understand the syndrome properly, however, ones viewpoint
should not be drawn from that of an ordinary, reasonable person.
What goes on in the mind of a person who has been subjected to
repeated, severe beatings may not be consistent with -- nay,
comprehensible to -- those who have not been through a similar
experience. Expert opinion is essential to clarify and refute
common myths and misconceptions about battered women.[45]
The theory of BWS formulated by Lenore Walker, as well as her
research on domestic violence, has had a significant impact in the
United States and the United Kingdom on the treatment and
prosecution of cases, in which a battered woman is charged with
the killing of her violent partner. The psychologist explains that the
cyclical nature of the violence inflicted upon the battered woman
immobilizes the latters ability to act decisively in her own
interests, making her feel trapped in the relationship with no
means of escape.[46] In her years of research, Dr. Walker found
that the abuse often escalates at the point of separation and
battered women are in greater danger of dying then.[47]

Corroborating these research findings, Dra. Dayan said that the

battered woman usually has a very low opinion of herself. She
has x x x self-defeating and self-sacrificing characteristics. x x x
[W]hen the violence would happen, they usually think that they
provoke[d] it, that they were the one[s] who precipitated the
violence[; that] they provoke[d] their spouse to be physically,
verbally and even sexually abusive to them.[48]
According to Dra. Dayan, there are a lot of reasons why a
battered woman does not readily leave an abusive partner -poverty, self-blame and guilt arising from the latters belief that she
provoked the violence, that she has an obligation to keep the
family intact at all cost for the sake of their children, and that she
is the only hope for her spouse to change.[49]
The testimony of another expert witness, Dr. Pajarillo, is also
helpful. He had previously testified in suits involving violent family
relations, having evaluated probably ten to twenty thousand
violent family disputes within the Armed Forces of the Philippines,
wherein such cases abounded. As a result of his experience with
domestic violence cases, he became a consultant of the Battered
Woman Office in Quezon City. As such, he got involved in about
forty (40) cases of severe domestic violence, in which the physical
abuse on the woman would sometimes even lead to her loss of
consciousness.[50]
Dr. Pajarillo explained that overwhelming brutality, trauma could
result in posttraumatic stress disorder, a form of anxiety neurosis
or neurologic anxietism.[51] After being repeatedly and severely
abused, battered persons may believe that they are essentially
helpless, lacking power to change their situation. x x x [A]cute
battering incidents can have the effect of stimulating the
development of coping responses to the trauma at the expense of
the victims ability to muster an active response to try to escape
further trauma. Furthermore, x x x the victim ceases to believe
that anything she can do will have a predictable positive effect.[52]
A study[53] conducted by Martin Seligman, a psychologist at the
University of Pennsylvania, found that even if a person has
control over a situation, but believes that she does not, she will be
more likely to respond to that situation with coping responses
rather than trying to escape. He said that it was the cognitive
aspect -- the individuals thoughts -- that proved all-important. He
referred to this phenomenon as learned helplessness. [T]he truth
or facts of a situation turn out to be less important than the
individuals set of beliefs or perceptions concerning the situation.
Battered women dont attempt to leave the battering situation,
even when it may seem to outsiders that escape is possible,
because they cannot predict their own safety; they believe that
nothing they or anyone else does will alter their terrible
circumstances.[54]
Thus, just as the battered woman believes that she is somehow
responsible for the violent behavior of her partner, she also
believes that he is capable of killing her, and that there is no

20

escape.[55] Battered women feel unsafe, suffer from pervasive

anxiety, and usually fail to leave the relationship.[56] Unless a
shelter is available, she stays with her husband, not only because
she typically lacks a means of self-support, but also because she
fears that if she leaves she would be found and hurt even more.[57]
In the instant case, we meticulously scoured the records for
specific evidence establishing that appellant, due to the repeated
abuse she had suffered from her spouse over a long period of
time, became afflicted with the battered woman syndrome. We,
however, failed to find sufficient evidence that would support such
a conclusion. More specifically, we failed to find ample evidence
that would confirm the presence of the essential characteristics of
BWS.

repeated and severe beatings inflicted upon her by her partner or

spouse. They corroborated each others testimonies, which were
culled from their numerous studies of hundreds of actual
cases. However, they failed to present in court the factual
experiences and thoughts that appellant had related to them -- if
at all -- based on which they concluded that she had BWS.
We emphasize that in criminal cases, all the elements of a
modifying circumstance must be proven in order to be
appreciated. To repeat, the records lack supporting evidence that
would establish all the essentials of the battered woman
syndrome as manifested specifically in the case of the Genosas.
BWS as Self-Defense

The defense fell short of proving all three phases of the cycle of
violence supposedly characterizing the relationship of Ben and
Marivic Genosa. No doubt there were acute battering incidents. In
relating to the court a quo how the fatal incident that led to the
death of Ben started, Marivic perfectly described the tensionbuilding phase of the cycle. She was able to explain in adequate
detail the typical characteristics of this stage. However, that single
incident does not prove the existence of the syndrome. In other
words, she failed to prove that in at least another battering
episode in the past, she had gone through a similar pattern.

In any event, the existence of the syndrome in a relationship does

not in itself establish the legal right of the woman to kill her
abusive partner. Evidence must still be considered in the context
of self-defense.[59]

How did the tension between the partners usually arise or build up
prior to acute battering? How did Marivic normally respond to
Bens relatively minor abuses? What means did she employ to try
to prevent the situation from developing into the next (more
violent) stage?

Settled in our jurisprudence, however, is the rule that the one who
resorts to self-defense must face a real threat on ones life; and
the peril sought to be avoided must be imminent and actual, not
merely imaginary.[61] Thus, the Revised Penal Code provides the
following requisites and effect of self-defense:[62]

Neither did appellant proffer sufficient evidence in regard to the

third phase of the cycle. She simply mentioned that she would
usually run away to her mothers or fathers house;[58] that Ben
would seek her out, ask for her forgiveness and promise to
change; and that believing his words, she would return to their
common abode.

Art. 11. Justifying circumstances. -- The following do not incur any

criminal liability:

Did she ever feel that she provoked the violent incidents between
her and her spouse? Did she believe that she was the only hope
for Ben to reform? And that she was the sole support of his
emotional stability and well-being? Conversely, how dependent
was she on him? Did she feel helpless and trapped in their
relationship? Did both of them regard death as preferable to
separation?

Second. Reasonable necessity of the means employed to prevent

or repel it;

In sum, the defense failed to elicit from appellant herself her

factual experiences and thoughts that would clearly and fully
demonstrate the essential characteristics of the syndrome.
The Court appreciates the ratiocinations given by the expert
witnesses for the defense. Indeed, they were able to explain fully,
albeit merely theoretically and scientifically, how the personality of
the battered woman usually evolved or deteriorated as a result of

From the expert opinions discussed earlier, the Court reckons

further that crucial to the BWS defense is the state of mind of the
battered woman at the time of the offense[60] -- she must have
actually feared imminent harm from her batterer and honestly
believed in the need to kill him in order to save her life.

1. Anyone who acts in defense of his person or rights, provided

that the following circumstances concur;
First. Unlawful aggression;

Third. Lack of sufficient provocation on the part of the person

defending himself.
Unlawful aggression is the most essential element of selfdefense.[63] It presupposes actual, sudden and unexpected attack
-- or an imminent danger thereof -- on the life or safety of a
person.[64] In the present case, however, according to the
testimony of Marivic herself, there was a sufficient time interval
between the unlawful aggression of Ben and her fatal attack upon
him. She had already been able to withdraw from his violent
behavior and escape to their childrens bedroom. During that time,
he apparently ceased his attack and went to bed. The reality or
even the imminence of the danger he posed had ended

21

altogether. He was no longer in a position that presented an

actual threat on her life or safety.
Had Ben still been awaiting Marivic when she came out of their
childrens bedroom -- and based on past violent incidents, there
was a great probability that he would still have pursued her and
inflicted graver harm -- then, the imminence of the real threat
upon her life would not have ceased yet. Where the brutalized
person is already suffering from BWS, further evidence of actual
physical assault at the time of the killing is not required. Incidents
of domestic battery usually have a predictable pattern. To require
the battered person to await an obvious, deadly attack before she
can defend her life would amount to sentencing her to murder by
installment.[65] Still, impending danger (based on the conduct of
the victim in previous battering episodes) prior to the defendants
use of deadly force must be shown. Threatening behavior or
communication can satisfy the required imminence of danger.
[66]
Considering such circumstances and the existence of BWS,
self-defense may be appreciated.
We reiterate the principle that aggression, if not continuous, does
not warrant self-defense.[67] In the absence of such aggression,
there can be no self-defense -- complete or incomplete -- on the
part of the victim.[68] Thus, Marivics killing of Ben was not
completely justified under the circumstances.
Mitigating Circumstances Present
In any event, all is not lost for appellant. While she did not raise
any other modifying circumstances that would alter her penalty,
we deem it proper to evaluate and appreciate in her favor
circumstances that mitigate her criminal liability. It is a hornbook
doctrine that an appeal in a criminal case opens it wholly for
review on any issue, including that which has not been raised by
the parties.[69]
From several psychological tests she had administered to Marivic,
Dra. Dayan, in her Psychological Evaluation Report dated
November 29, 2000, opined as follows:
This is a classic case of a Battered Woman Syndrome. The
repeated battering Marivic experienced with her husband
constitutes a form of [cumulative] provocation which broke down
her psychological resistance and natural self-control. It is very
clear that she developed heightened sensitivity to sight of
impending danger her husband posed continuously. Marivic truly
experienced at the hands of her abuser husband a state of
psychological paralysis which can only be ended by an act of
violence on her part. [70]
Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained
that the effect of repetitious pain taking, repetitious battering,
[and] repetitious maltreatment as well as the severity and the
prolonged administration of the battering is posttraumatic stress
disorder.[71]Expounding thereon, he said:

Q What causes the trauma, Mr. Witness?

A What causes the trauma is probably the repetitious battering.
Second, the severity of the battering. Third, the prolonged
administration of battering or the prolonged commission of the
battering and the psychological and constitutional stamina of the
victim and another one is the public and social support available
to the victim. If nobody is interceding, the more she will go to that
disorder....
xxxxxxxxx
Q You referred a while ago to severity. What are the qualifications
in terms of severity of the postraumatic stress disorder, Dr.
Pajarillo?
A The severity is the most severe continuously to trig[g]er this
post[t]raumatic stress disorder is injury to the head, banging of the
head like that. It is usually the very very severe stimulus that
precipitate this post[t]raumatic stress disorder. Others are
suffocating the victim like holding a pillow on the face,
strangulating the individual, suffocating the individual, and boxing
the individual. In this situation therefore, the victim is heightened
to painful stimulus, like for example she is pregnant, she is very
susceptible because the woman will not only protect herself, she
is also to protect the fetus. So the anxiety is heightened to the end
[sic] degree.
Q But in terms of the gravity of the disorder, Mr. Witness, how do
you classify?
A We classify the disorder as [acute], or chronic or delayed or
[a]typical.
Q Can you please describe this pre[-]classification you called
delayed or [atypical]?
A The acute is the one that usually require only one battering and
the individual will manifest now a severe emotional instability,
higher irritability remorse, restlessness, and fear and probably in
most [acute] cases the first thing will be happened to the
individual will be thinking of suicide.
Q And in chronic cases, Mr. Witness?
A The chronic cases is this repetitious battering, repetitious
maltreatment, any prolonged, it is longer than six (6) months. The
[acute] is only the first day to six (6) months. After this six (6)
months you become chronic. It is stated in the book specifically
that after six (6) months is chronic. The [a]typical one is the
repetitious battering but the individual who is abnormal and then
become normal. This is how you get neurosis from neurotic
personality of these cases of post[t]raumatic stress disorder. [72]
Answering the questions propounded by the trial judge, the expert
witness clarified further:

22

Q But just the same[,] neurosis especially on battered woman

syndrome x x x affects x x x his or her mental capacity?
A Yes, your Honor.
Q As you were saying[,] it x x x obfuscated her rationality?
A Of course obfuscated.[73]
In sum, the cyclical nature and the severity of the violence
inflicted upon appellant resulted in cumulative provocation which
broke down her psychological resistance and natural self-control,
psychological paralysis, and difficulty in concentrating or
impairment of memory.
Based on the explanations of the expert witnesses, such
manifestations were analogous to an illness that diminished the
exercise by appellant of her will power without, however,
depriving her of consciousness of her acts. There was, thus, a
resulting diminution of her freedom of action, intelligence or intent.
Pursuant to paragraphs 9[74] and 10[75] of Article 13 of the Revised
Penal Code, this circumstance should be taken in her favor and
considered as a mitigating factor. [76]
In addition, we also find in favor of appellant the extenuating
circumstance of having acted upon an impulse so powerful as to
have naturally produced passion and obfuscation. It has been
held that this state of mind is present when a crime is committed
as a result of an uncontrollable burst of passion provoked by prior
unjust or improper acts or by a legitimate stimulus so powerful as
to overcome reason.[77] To appreciate this circumstance, the
following requisites should concur: (1) there is an act, both
unlawful and sufficient to produce such a condition of mind; and
(2) this act is not far removed from the commission of the crime
by a considerable length of time, during which the accused might
recover her normal equanimity.[78]
Here, an acute battering incident, wherein Ben Genosa was the
unlawful aggressor, preceded his being killed by Marivic. He had
further threatened to kill her while dragging her by the neck
towards a cabinet in which he had kept a gun. It should also be
recalled that she was eight months pregnant at the time. The
attempt on her life was likewise on that of her fetus.[79] His abusive
and violent acts, an aggression which was directed at the lives of
both Marivic and her unborn child, naturally produced passion and
obfuscation overcoming her reason. Even though she was able to
retreat to a separate room, her emotional and mental state
continued. According to her, she felt her blood pressure rise; she
was filled with feelings of self-pity and of fear that she and her
baby were about to die. In a fit of indignation, she pried open the
cabinet drawer where Ben kept a gun, then she took the weapon
and used it to shoot him.
The confluence of these events brings us to the conclusion that
there was no considerable period of time within which Marivic

could have recovered her normal equanimity. Helpful is Dr.

Pajarillos testimony[80] that with neurotic anxiety -- a psychological
effect on a victim of overwhelming brutality [or] trauma -- the
victim relives the beating or trauma as if it were real, although she
is not actually being beaten at the time. She cannot control reexperiencing the whole thing, the most vicious and the trauma
that she suffered. She thinks of nothing but the suffering. Such
reliving which is beyond the control of a person under similar
circumstances, must have been what Marivic experienced during
the brief time interval and prevented her from recovering her
normal equanimity. Accordingly, she should further be credited
with the mitigating circumstance of passion and obfuscation.
It should be clarified that these two circumstances -psychological paralysis as well as passion and obfuscation -- did
not arise from the same set of facts.
On the one hand, the first circumstance arose from the cyclical
nature and the severity of the battery inflicted by the battererspouse upon appellant. That is, the repeated beatings over a
period of time resulted in her psychological paralysis, which was
analogous to an illness diminishing the exercise of her will power
without depriving her of consciousness of her acts.
The second circumstance, on the other hand, resulted from the
violent aggression he had inflicted on her prior to the killing. That
the incident occurred when she was eight months pregnant with
their child was deemed by her as an attempt not only on her life,
but likewise on that of their unborn child. Such perception
naturally produced passion and obfuscation on her part.
Second Legal Issue:
Treachery
There is treachery when one commits any of the crimes against
persons by employing means, methods or forms in the execution
thereof without risk to oneself arising from the defense that the
offended party might make.[81] In order to qualify an act as
treacherous, the circumstances invoked must be proven as
indubitably as the killing itself; they cannot be deduced from mere
inferences, or conjectures, which have no place in the
appreciation of evidence.[82] Because of the gravity of the resulting
offense, treachery must be proved as conclusively as the killing
itself.[83]
Ruling that treachery was present in the instant case, the trial
court imposed the penalty of death upon appellant. It inferred this
qualifying circumstances merely from the fact that the lifeless
body of Ben had been found lying in bed with an open,
depressed, circular fracture located at the back of his head. As to
exactly how and when he had been fatally attacked, however, the
prosecution failed to establish indubitably. Only the following
testimony of appellant leads us to the events surrounding his
death:

23

Q You said that when Ben came back to your house, he dragged
you? How did he drag you?
COURT:
The witness demonstrated to the Court by using her right hand
flexed forcibly in her front neck)

Q You said that he dropped the blade, for the record will you
please describe this blade about 3 inches long, how does it look
like?
A Three (3) inches long and inch wide.
Q It is a flexible blade?

A And he dragged me towards the door backward.

A Its a cutter.

ATTY. TABUCANON:

Q How do you describe the blade, is it sharp both edges?

Q Where did he bring you?

A Yes, because he once used it to me.

A Outside the bedroom and he wanted to get something and then

he kept on shouting at me that you might as well be killed so there
will be nobody to nag me

Q How did he do it?

Q So you said that he dragged you towards the drawer?

Q With the same blade?

A Yes, sir.

A Yes, sir, that was the object used when he intimidate me.

Q What is there in the drawer?

xxxxxxxxx

A I was aware that it was a gun.

ATTY. TABUCANON:

COURT INTERPRETER

Q You said that this blade fell from his grip, is it correct?

(At this juncture the witness started crying)

A Yes, because I smashed him.

ATTY. TABUCANON:

Q What happened?

Q Were you actually brought to the drawer?

A Ben tried to pick-up the wallet and the blade, I pick-up the pipe
and I smashed him and I ran to the other room.

A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to open
the drawer but he could not open it because he did not have the
key then he pulled his wallet which contained a blade about 3
inches long and I was aware that he was going to kill me and I
smashed his arm and then the wallet and the blade fell. The one
he used to open the drawer I saw, it was a pipe about that long,
and when he was about to pick-up the wallet and the blade, I
smashed him then I ran to the other room, and on that very
moment everything on my mind was to pity on myself, then the
feeling I had on that very moment was the same when I was
admitted in PHILPHOS Clinic, I was about to vomit.
COURT INTERPRETER
(The witness at this juncture is crying intensely).
xxxxxxxxx

A He wanted to cut my throat.

Q What else happened?

A When I was in the other room, I felt the same thing like what
happened before when I was admitted in PHILPHOS Clinic, I was
about to vomit. I know my blood pressure was raised. I was
frightened I was about to die because of my blood pressure.
COURT INTERPRETER:
(Upon the answer of the witness getting the pipe and smashed
him, the witness at the same time pointed at the back of her neck
or the nape).
ATTY. TABUCANON:
Q You said you went to the room, what else happened?
A Considering all the physical sufferings that Ive been through
with him, I took pity on myself and I felt I was about to die also
because of my blood pressure and the baby, so I got that gun and
I shot him.
COURT

24

/to Atty. Tabucanon

Epilogue

Q You shot him?

Being a novel concept in our jurisprudence, the battered woman

syndrome was neither easy nor simple to analyze and recognize
vis--vis the given set of facts in the present case. The Court
agonized on how to apply the theory as a modern-day reality. It
took great effort beyond the normal manner in which decisions
are made -- on the basis of existing law and jurisprudence
applicable to the proven facts. To give a just and proper resolution
of the case, it endeavored to take a good look at studies
conducted here and abroad in order to understand the intricacies
of the syndrome and the distinct personality of the chronically
abused person. Certainly, the Court has learned much. And
definitely, the solicitor general and appellants counsel, Atty.
Katrina Legarda, have helped it in such learning process.

A Yes, I distorted the drawer.[84]

The above testimony is insufficient to establish the presence of
treachery. There is no showing of the victims position relative to
appellants at the time of the shooting. Besides, equally axiomatic
is the rule that when a killing is preceded by an argument or a
quarrel, treachery cannot be appreciated as a qualifying
circumstance, because the deceased may be said to have been
forewarned and to have anticipated aggression from the assailant.
[85]

Moreover, in order to appreciate alevosia, the method of assault

adopted by the aggressor must have been consciously and
deliberately chosen for the specific purpose of accomplishing the
unlawful act without risk from any defense that might be put up by
the party attacked.[86]There is no showing, though, that the
present appellant intentionally chose a specific means of
successfully attacking her husband without any risk to herself
from any retaliatory act that he might make. To the contrary, it
appears that the thought of using the gun occurred to her only at
about the same moment when she decided to kill her battererspouse. In the absence of any convincing proof that she
consciously and deliberately employed the method by which she
committed the crime in order to ensure its execution, this Court
resolves the doubt in her favor.[87]
Proper Penalty
The penalty for parricide imposed by Article 246 of the Revised
Penal Code is reclusion perpetua to death. Since two mitigating
circumstances and no aggravating circumstance have been found
to have attended the commission of the offense, the penalty shall
be lowered by one (1) degree, pursuant to Article 64 of paragraph
5[88] of the same Code.[89] The penalty of reclusion temporal in its
medium period is imposable, considering that two mitigating
circumstances are to be taken into account in reducing the
penalty by one degree, and no other modifying circumstances
were shown to have attended the commission of the offense.
[90]
Under the Indeterminate Sentence Law, the minimum of the
penalty shall be within the range of that which is next lower in
degree -- prision mayor -- and the maximum shall be within the
range of the medium period of reclusion temporal.
Considering all the circumstances of the instant case, we deem it
just and proper to impose the penalty of prision mayor in its
minimum period, or six (6) years and one (1) day in prison as
minimum; to reclusion temporal in its medium period, or 14 years
8 months and 1 day as maximum. Noting that appellant has
already served the minimum period, she may now apply for and
be released from detention on parole.[91]

While our hearts empathize with recurrently battered persons, we

can only work within the limits of law, jurisprudence and given
facts. We cannot make or invent them. Neither can we amend the
Revised Penal Code. Only Congress, in its wisdom, may do so.
The Court, however, is not discounting the possibility of selfdefense arising from the battered woman syndrome. We now sum
up our main points. First, each of the phases of the cycle of
violence must be proven to have characterized at least two
battering episodes between the appellant and her intimate
partner. Second, the final acute battering episode preceding the
killing of the batterer must have produced in the battered persons
mind an actual fear of an imminent harm from her batterer and an
honest belief that she needed to use force in order to save her
life. Third, at the time of the killing, the batterer must have posed
probable -- not necessarily immediate and actual -- grave harm to
the accused, based on the history of violence perpetrated by the
former against the latter. Taken altogether, these circumstances
could satisfy the requisites of self-defense. Under the existing
facts of the present case, however, not all of these elements were
duly established.
WHEREFORE, the conviction of Appellant Marivic Genosa for
parricide is hereby AFFIRMED. However, there being two (2)
mitigating circumstances and no aggravating circumstance
attending her commission of the offense, her penalty
is REDUCED to six (6) years and one (1) day of prision mayor as
minimum; to 14 years, 8 months and 1 day of reclusion
temporal as maximum.
Inasmuch as appellant has been detained for more than the
minimum penalty hereby imposed upon her, the director of the
Bureau of Corrections may immediately RELEASE her from
custody upon due determination that she is eligible for parole,
unless she is being held for some other lawful cause. Costs de
oficio.
SO ORDERED.

25

ARNEL COLINARES, G.R. No. 182748

Petitioner,
Present:
CORONA, C.J.,
CARPIO,
VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
- versus - PERALTA,

The public prosecutor of Camarines Sur charged the accused

Arnel Colinares (Arnel) with frustrated homicide before the
Regional Trial Court (RTC) of San Jose, Camarines Sur, in
Criminal Case T-2213.[1]
Complainant Rufino P. Buena (Rufino) testified that at around
7:00 in the evening on June 25, 2000, he and Jesus Paulite
(Jesus) went out to buy cigarettes at a nearby store. On their way,
Jesus took a leak by the roadside with Rufino waiting
nearby. From nowhere, Arnel sneaked behind and struck Rufino
twice on the head with a huge stone, about 15 inches in
diameter. Rufino fell unconscious as Jesus fled.
Ananias Jallores (Ananias) testified that he was walking home
when he saw Rufino lying by the roadside. Ananias tried to help
but someone struck him with something hard on the right temple,
knocking him out. He later learned that Arnel had hit him.

BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA,
SERENO,
REYES, and
PERLAS-BERNABE, JJ.
PEOPLE OF THE PHILIPPINES,
Respondent. Promulgated:
December 13, 2011
x
---------------------------------------------------------------------------------------x
DECISION
ABAD, J.:
This case is about a) the need, when invoking self-defense, to
prove all that it takes; b) what distinguishes frustrated homicide
from attempted homicide; and c) when an accused who appeals
may still apply for probation on remand of the case to the trial
court.
The Facts and the Case

Paciano Alano (Paciano) testified that he saw the whole incident

since he happened to be smoking outside his house. He sought
the help of a barangay tanod and they brought Rufino to the
hospital.
Dr. Albert Belleza issued a Medico-Legal Certificate[2] showing
that Rufino suffered two lacerated wounds on the forehead, along
the hairline area. The doctor testified that these injuries were
serious and potentially fatal but Rufino chose to go home after
initial treatment.
The defense presented Arnel and Diomedes Paulite
(Diomedes). Arnel claimed self-defense. He testified that he was
on his way home that evening when he met Rufino, Jesus, and
Ananias who were all quite drunk. Arnel asked Rufino where he
supposed the Mayor of Tigaon was but, rather than reply, Rufino
pushed him, causing his fall. Jesus and Ananias then boxed Arnel
several times on the back. Rufino tried to stab Arnel but
missed. The latter picked up a stone and, defending himself,
struck Rufino on the head with it. When Ananias saw this, he
charged towards Arnel and tried to stab him with a gaff. Arnel was
able to avoid the attack and hit Ananias with the same
stone. Arnel then fled and hid in his sisters house. On September
4, 2000, he voluntarily surrendered at the Tigaon Municipal Police
Station.
Diomedes testified that he, Rufino, Jesus, and Ananias attended a
pre-wedding party on the night of the incident. His three
companions were all drunk. On his way home, Diomedes saw the
three engaged in heated argument with Arnel.
On July 1, 2005 the RTC rendered judgment, finding Arnel guilty
beyond reasonable doubt of frustrated homicide and sentenced
him to suffer imprisonment from two years and four months
of prision correccional, as minimum, to six years and one day
of prisionmayor, as maximum. Since the maximum probationable

26

imprisonment under the law was only up to six years, Arnel did
not qualify for probation.
Arnel appealed to the Court of Appeals (CA), invoking selfdefense and, alternatively, seeking conviction for the lesser crime
of attempted homicide with the consequent reduction of the
penalty imposed on him. The CA entirely affirmed the RTC
decision but deleted the award for lost income in the absence of
evidence to support it.[3] Not satisfied, Arnel comes to this Court
on petition for review.
In the course of its deliberation on the case, the Court required
Arnel and the Solicitor General to submit their respective positions
on whether or not, assuming Arnel committed only the lesser
crime of attempted homicide with its imposable penalty of
imprisonment of four months of arresto mayor, as minimum, to
two years and four months of prision correccional, as maximum,
he could still apply for probation upon remand of the case to the
trial court.
Both complied with Arnel taking the position that he should be
entitled to apply for probation in case the Court metes out a new
penalty on him that makes his offense probationable. The
language and spirit of the probation law warrants such a
stand. The Solicitor General, on the other hand, argues that under
the Probation Law no application for probation can be entertained
once the accused has perfected his appeal from the judgment of
conviction.
The Issues Presented
The case essentially presents three issues:
1. Whether or not Arnel acted in self-defense when he struck
Rufino on the head with a stone;
2. Assuming he did not act in self-defense, whether or not Arnel is
guilty of frustrated homicide; and
3. Given a finding that Arnel is entitled to conviction for a lower
offense and a reduced probationable penalty, whether or not he
may still apply for probation on remand of the case to the trial
court.
The Courts Rulings
One. Arnel claims that Rufino, Jesus, and Ananias attacked him
first and that he merely acted in self-defense when he hit Rufino
back with a stone.
When the accused invokes self-defense, he bears the burden of
showing that he was legally justified in killing the victim or inflicting
injury to him. The accused must establish the elements of selfdefense by clear and convincing evidence. When successful, the
otherwise felonious deed would be excused, mainly predicated on
the lack of criminal intent of the accused.[4]

In homicide, whether consummated, frustrated, or attempted, selfdefense requires (1) that the person whom the offender killed or
injured committed unlawful aggression; (2) that the offender
employed means that is reasonably necessary to prevent or repel
the unlawful aggression; and (3) that the person defending
himself did not act with sufficient provocation.[5]
If the victim did not commit unlawful aggression against the
accused, the latter has nothing to prevent or repel and the other
two requisites of self-defense would have no basis for being
appreciated. Unlawful aggression contemplates an actual,
sudden, and unexpected attack or an imminent danger of such
attack. A mere threatening or intimidating attitude is not
enough. The victim must attack the accused with actual physical
force or with a weapon.[6]
Here, the lower courts found that Arnel failed to prove the element
of unlawful aggression. He alone testified that Jesus and Ananias
rained fist blows on him and that Rufino and Ananias tried to stab
him. No one corroborated Arnels testimony that it was Rufino who
started it. Arnels only other witness, Diomedes, merely testified
that he saw those involved having a heated argument in the
middle of the street. Arnel did not submit any medical certificate to
prove his point that he suffered injuries in the hands of Rufino and
his companions.[7]
In contrast, the three witnessesJesus, Paciano, and
Ananiastestified that Arnel was the aggressor. Although their
versions were mottled with inconsistencies, these do not detract
from their core story. The witnesses were one in what Arnel did
and when and how he did it. Compared to Arnels testimony, the
prosecutions version is more believable and consistent with
reality, hence deserving credence.[8]
Two. But given that Arnel, the accused, was indeed the
aggressor, would he be liable for frustrated homicide when the
wounds he inflicted on Rufino, his victim, were not fatal and could
not have resulted in death as in fact it did not?
The main element of attempted or frustrated homicide is the
accuseds intent to take his victims life. The prosecution has to
prove this clearly and convincingly to exclude every possible
doubt regarding homicidal intent.[9] And the intent to kill is often
inferred from, among other things, the means the offender used
and the nature, location, and number of wounds he inflicted on his
victim.[10]
Here, Arnel struck Rufino on the head with a huge stone. The
blow was so forceful that it knocked Rufino out. Considering the
great size of his weapon, the impact it produced, and the location
of the wounds that Arnel inflicted on his victim, the Court is
convinced that he intended to kill him.
The Court is inclined, however, to hold Arnel guilty only of
attempted, not frustrated, homicide. In Palaganas v. People,[11] we

27

ruled that when the accused intended to kill his victim, as shown
by his use of a deadly weapon and the wounds he inflicted, but
the victim did not die because of timely medical assistance, the
crime is frustrated murder or frustrated homicide. If the victims
wounds are not fatal, the crime is only attempted murder or
attempted homicide.

xxxx

Thus, the prosecution must establish with certainty the nature,

extent, depth, and severity of the victims wounds. While Dr.
Belleza testified that head injuries are always very serious,[12] he
could not categorically say that Rufinos wounds in this case were
fatal. Thus:

Q: For how many days did he stay in the hospital?

Q: Doctor, all the injuries in the head are fatal?

A: No, Your Honor.

A: No, all traumatic injuries are potentially treated.

Q: Did he come back to you after 24 hours?

Q: But in the case of the victim when you treated him the
wounds actually are not fatal on that very day?

A: I am not sure when he came back for follow-up.[14]

A: I could not say, with the treatment we did, prevent from

becoming fatal. But on that case the patient preferred to go
home at that time.

Taken in its entirety, there is a dearth of medical evidence on

record to support the prosecutions claim that Rufino would have
died without timely medical intervention. Thus, the Court finds
Arnel liable only for attempted homicide and entitled to the
mitigating circumstance of voluntary surrender.

Q: The findings also indicated in the medical certificate only

refers to the length of the wound not the depth of the
wound?
A: When you say lacerated wound, the entire length of the
layer of scalp.
Q: So you could not find out any abrasion?
A: It is different laceration and abrasion so once the skin is
broken up the label of the frontal lo[b]e, we always call it
lacerated wound, but in that kind of wound, we did not
measure the depth.[13]
Indeed, Rufino had two lacerations on his forehead but there was
no indication that his skull incurred fracture or that he bled
internally as a result of the pounding of his head. The wounds
were not so deep, they merely required suturing, and were
estimated to heal in seven or eight days. Dr. Belleza further
testified:
Q: So, in the medical certificate the wounds will not require
surgery?
A: Yes, Madam.
Q: The injuries are slight?
A: 7 to 8 days long, what we are looking is not much, we give
antibiotics and antit[e]tanus the problem the contusion that
occurred in the brain.

Q: What medical intervention that you undertake?

A: We give antibiotics, Your Honor, antit[e]tanus and suturing
the wounds.

A: Head injury at least be observed within 24 hours, but

some of them would rather go home and then come back.
Q: So the patient did not stay 24 hours in the hospital?

Three. Ordinarily, Arnel would no longer be entitled to apply for

probation, he having appealed from the judgment of the RTC
convicting him for frustrated homicide.
But, the Court finds Arnel guilty only of the lesser crime of
attempted homicide and holds that the maximum of the penalty
imposed on him should be lowered to imprisonment of four
months of arresto mayor, as minimum, to two years and four
months ofprision correccional, as maximum. With this new
penalty, it would be but fair to allow him the right to apply for
probation upon remand of the case to the RTC.
Some in the Court disagrees. They contend that probation is a
mere privilege granted by the state only to qualified convicted
offenders. Section 4 of the probation law (PD 968) provides: That
no application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of
conviction.[15] Since Arnel appealed his conviction for frustrated
homicide, he should be deemed permanently disqualified from
applying for probation.
But, firstly, while it is true that probation is a mere privilege, the
point is not that Arnel has the right to such privilege; he certainly
does not have. What he has is the right to apply for that
privilege. The Court finds that his maximum jail term should only
be 2 years and 4 months. If the Court allows him to apply for
probation because of the lowered penalty, it is still up to the trial
judge to decide whether or not to grant him the privilege of
probation, taking into account the full circumstances of his case.

28

Secondly, it is true that under the probation law the accused who
appeals from the judgment of conviction is disqualified from
availing himself of the benefits of probation. But, as it happens,
two judgments of conviction have been meted out to Arnel: one, a
conviction for frustrated homicide by the regional trial court, now
set aside; and, two, a conviction for attempted homicide by the
Supreme Court.
If the Court chooses to go by the dissenting opinions hard
position, it will apply the probation law on Arnel based on the trial
courts annulled judgment against him. He will not be entitled to
probation because of the severe penalty that such judgment
imposed on him. More, the Supreme Courts judgment of
conviction for a lesser offense and a lighter penalty will also have
to bend over to the trial courts judgmenteven if this has been
found in error. And, worse, Arnel will now also be made to pay for
the trial courts erroneous judgment with the forfeiture of his right
to apply for probation. Ang kabayo ang nagkasala, ang hagupit
ay sa kalabaw (the horse errs, the carabao gets the whip). Where
is justice there?
The dissenting opinion also expresses apprehension that allowing
Arnel to apply for probation would dilute the ruling of this Court
in Francisco v. Court of Appeals[16] that the probation law requires
that an accused must not have appealed his conviction before he
can avail himself of probation. But there is a huge difference
between Francisco and this case.
In Francisco, the Metropolitan Trial Court (MeTC) of Makati found
the accused guilty of grave oral defamation and sentenced him to
a prison term of one year and one day to one year and eight
months of prision correccional, a clearly probationable
penalty.Probation was his to ask! Still, he chose to appeal,
seeking an acquittal, hence clearly waiving his right to apply for
probation. When the acquittal did not come, he wanted
probation. The Court would not of course let him. It served him
right that he wanted to save his cake and eat it too. He certainly
could not have both appeal and probation.
The Probation Law, said the Court in Francisco, requires that an
accused must not have appealed his conviction before he can
avail himself of probation. This requirement outlaws the element
of speculation on the part of the accusedto wager on the result of
his appealthat when his conviction is finally affirmed on appeal,
the moment of truth well-nigh at hand, and the service of his
sentence inevitable, he now applies for probation as an escape
hatch thus rendering nugatory the appellate courts affirmance of
his conviction.[17]

Here, however, Arnel did not appeal from a judgment that would
have allowed him to apply for probation. He did not have a choice
between appeal and probation. He was not in a position to say, By
taking this appeal, I choose not to apply for probation. The stiff

penalty that the trial court imposed on him denied him that
choice. Thus, a ruling that would allow Arnel to now seek
probation under this Courts greatly diminished penalty will not
dilute the sound ruling in Francisco. It remains that those who will
appeal from judgments of conviction, when they have the option
to try for probation, forfeit their right to apply for that privilege.
Besides, in appealing his case, Arnel raised the issue of
correctness of the penalty imposed on him. He claimed that the
evidence at best warranted his conviction only for attempted, not
frustrated, homicide, which crime called for a probationable
penalty. In a way, therefore, Arnel sought from the beginning to
bring down the penalty to the level where the law would allow him
to apply for probation.
In a real sense, the Courts finding that Arnel was guilty, not of
frustrated homicide, but only of attempted homicide, is an original
conviction that for the first time imposes on him a probationable
penalty. Had the RTC done him right from the start, it would have
found him guilty of the correct offense and imposed on him the
right penalty of two years and four months maximum. This would
have afforded Arnel the right to apply for probation.
The Probation Law never intended to deny an accused his right to
probation through no fault of his. The underlying philosophy of
probation is one of liberality towards the accused. Such
philosophy is not served by a harsh and stringent interpretation of
the statutory provisions.[18] As Justice Vicente V. Mendoza said in
his dissent in Francisco, the Probation Law must not be regarded
as a mere privilege to be given to the accused only where it
clearly appears he comes within its letter; to do so would be to
disregard the teaching in many cases that the Probation Law
should be applied in favor of the accused not because it is a
criminal law but to achieve its beneficent purpose.[19]
One of those who dissent from this decision points out that
allowing Arnel to apply for probation after he appealed from the
trial courts judgment of conviction would not be consistent with
the provision of Section 2 that the probation law should be
interpreted to provide an opportunity for the reformation of a
penitent offender. An accused like Arnel who appeals from a
judgment convicting him, it is claimed, shows no penitence.
This may be true if the trial court meted out to Arnel a correct
judgment of conviction. Here, however, it convicted Arnel of the
wrong crime, frustrated homicide, that carried a penalty in excess
of 6 years. How can the Court expect him to feel penitent over a
crime, which as the Court now finds, he did not commit? He only
committed attempted homicide with its maximum penalty of 2
years and 4 months.
Ironically, if the Court denies Arnel the right to apply for probation
under the reduced penalty, it would be sending him straight
behind bars. It would be robbing him of the chance to instead

29

undergo reformation as a penitent offender, defeating the very

purpose of the probation law.

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

At any rate, what is clear is that, had the RTC done what was
right and imposed on Arnel the correct penalty of two years and
four months maximum, he would have had the right to apply for
probation. No one could say with certainty that he would have
availed himself of the right had the RTC done right by him. The
idea may not even have crossed his mind precisely since the
penalty he got was not probationable.

DECISION

The question in this case is ultimately one of fairness. Is it fair to

deny Arnel the right to apply for probation when the new penalty
that the Court imposes on him is, unlike the one erroneously
imposed by the trial court, subject to probation?
WHEREFORE, the Court PARTIALLY GRANTS the
petition, MODIFIES the Decision dated July 31, 2007 of the Court
of Appeals in CA-G.R. CR 29639, FINDS petitioner Arnel
Colinares GUILTY beyond reasonable doubt of attempted
homicide, andSENTENCES him to suffer an indeterminate
penalty from four months of arresto mayor, as minimum, to two
years and four months ofprision correccional, as maximum, and to
pay Rufino P. Buena the amount of P20,000.00 as moral
damages, without prejudice to petitioner applying for probation
within 15 days from notice that the record of the case has been
remanded for execution to the Regional Trial Court of San Jose,
Camarines Sur, in Criminal Case T-2213.
SO ORDERED.

CARPIO, J.:
The Case
This is a consolidated criminal case filed against the accusedappellants for the crimes of Illegal Recruitment (Criminal Case
No. 21930) and Trafficking in Persons (Criminal Case No. 21908).
The Regional Trial Court (RTC) of Zamboanga City, in its Decision
dated 29 November 2005 (RTC Decision),1 found accusedappellants guilty beyond reasonable doubt of the crimes of Illegal
Recruitment and Trafficking in Persons committed by a syndicate,
and sentenced each of the accused to suffer the penalty of life
imprisonment plus payment of fines and damages. On appeal, the
Court of Appeals (CA) in Cagayan de Oro, in its Decision dated
26 February 2010 (CA Decision),2 affirmed in toto the RTC
Decision. The accused-appellants appealed to this Court by filing
a Notice of Appeal3 in accordance with Section 3(c), Rule 122 of
the Rules of Court.
The Facts
The findings of fact of the RTC, which were affirmed in toto by the
CA, are as follows:

- versus - CARPIO, J., Chairperson,

In the evening of June 3, 2005, while Lolita Sagadsad Plando, 23

years old, single, was in Tumaga, Zamboanga City on her way to
the house of her grandfather, she met Ronnie Masion Aringoy and
Rachel Aringoy Caete. Ronnie greeted Lolita, Oy, its good you are
here (oy, maayo kay dia ka). Rachel asked Lolita if she is
interested to work in Malaysia. x x x Lolita was interested so she
gave her cellphone number to Ronnie. After their conversation,
Lolita proceeded to her grandfathers house.

BRION,

xxx

SERENO,

On June 4, 2005, at about 7:00 oclock in the morning, Lolita

received a text message from Ronnie Aringoy inviting her to go to
the latters house. At 7:30 in the morning, they met at Tumaga on
the road near the place where they had a conversation the night
before. Ronnie brought Lolita to the house of his sister
in Tumaga. Lolita inquired what job is available in Malaysia.
Ronnie told her that she will work as a restaurant entertainer. All
that is needed is a passport. She will be paid 500 Malaysian
ringgits which is equivalent to P7,000.00 pesos in Philippine
currency. Lolita told Ronnie that she does not have a passport.
Ronnie said that they will look for a passport so she could leave
immediately. Lolita informed him that her younger
sister,Marife Plando, has a passport. Ronnie chided her for not
telling him immediately. He told Lolita that she will leave for
Malaysia on June 6, 2005 and they will go

PEOPLE OF THE PHILIPPINES, G.R. No. 195419

Plaintiff-Appellee,
Present:

HADJA JARMA LALLI y PURIH, REYES, and

RONNIE ARINGOY y MASION, PERLAS-BERNABE,* JJ.
and NESTOR RELAMPAGOS (at large),
Accused.
HADJA JARMA LALLI y PURIH and Promulgated:
RONNIE ARINGOY y MASION,
Accused-Appellants. October 12, 2011

30

to Hadja Jarma Lalli who will bring her to Malaysia. Ronnie sent a
text message to Lalli but the latter replied that she was not in her
house. She was at the city proper.
On June 5, 2005, at about 6:00 oclock in the evening,
Ronnie Aringoy and Rachel Aringoy Caete arrived on board a
tricycle driven by Ronnie at the house where Lolita was staying
at Southcom Village. Ronnie asked if Lolita already had a
passport. Lolita said that she will borrow her sisters passport.
Ronnie, Rachel and Lolita went to Buenavista where Lolitas other
sister, Gina Plando was staying. Her sister Marife Plando was
there at that time. Lolita asked Marife to let her
use Marifes passport. Marife refused but Lolita got the
passport. Marife cried. Ronnie, Rachel and Lolita proceeded
toTumaga. Ronnie, Rachel and Lolita went to the house
of Hadja Jarma Lalli just two hundred meters away from the
house of Ronnie in Tumaga. Ronnie introduced Lolita
to Hadja Jarma, saying Ji, she is also interested in going to
Malaysia. Lolita handed a passport to Hadja Jarma telling her that
it belongs to her sister Marife Plando. Hadja Jarma told her it is
not a problem because they have a connection with the DFA
(Department of Foreign Affairs) and Marifes picture in the
passport will be substituted with Lolitas picture.
Nestor Relampagos arrived driving an owner-type
jeep. HadjaJarma introduced Nestor to Lolita as their financier
who will accompany them to Malaysia. x x x Lolita noticed three
other women in Hadja Jarmashouse. They were Honey, about 20
years old; Michele, 19 years old, and another woman who is
about 28 years old. The women said that they are
fromIpil, Sibugay Province. Ronnie told Lolita that she will have
many companions going to Malaysia to work. They will leave the
next day, June 6, and will meet at the wharf at 2:30 in the
afternoon.

On June 6, 2005, Lolita went to Zamboanga City wharf at 2:00

oclock in the afternoon bringing a bag containing her make-up
and powder. She met at the wharf Hadja Jarma Lalli,
Ronnie Aringoy, Honey and Michele. Ronnie gave to Lolita her
boat ticket for the vessel M/V Mary Joy bound for Sandakan,
Malaysia; a passport in the name of Marife Plando but with Lolitas
picture on it, and P1,000.00 in cash. Hadja Jarma, Lolita, Honey,
Michele and two other women boarded the boat M/V Mary Joy
bound for Sandakan. Ronnie Aringoy did not go with them. He did
not board the boat. x x x After the boat
sailed, Hadja Jarma Lalli and Nestor Relampagos approached
Lolita and her companions. Nestor told them that they will have a
good job in Malaysia as restaurant entertainers. They will serve
food to customers. They will not be harmed.
M/V Mary Joy arrived at the port of Sandakan, Malaysia at 10:00
oclock in the morning of June 7, 2005. After passing through the
immigration office,Hadja Jarma Lalli, Nestor Relampagos, Lolita,
Honey, Michele and two other women boarded a van for

Kota Kinabalu. x x x At the hotel, NestorRelampagos introduced

to Lolita and her companions a Chinese Malay called Boss as
their employer. After looking at the women, Boss brought Lolita,
Honey, Diane and Lorraine to a restaurant near the hotel. Diane
and Lorraine were also on baord M/V Mary Joy when it left the
port of Zamboanga for Sandakan on June 6, 2005. When they
were already at the restaurant, a Filipina woman working there
said that the place is a prostitution den and the women there are
used as prostitutes. Lolita and her companions went back to the
hotel. They told Hadja Jarma and Nestor that they do not like to
work as prostitutes. x x x After about five minutes, another person
called boss arrived. x x x [T]hey were fetched by a van at about
7:00 oclock in the evening and brought to Pipen Club owned by
Boss Awa, a Malaysian. At the club, they were told that they owe
the club 2,000 ringgits each as payment for the amount given by
the club to Hadja Jarma Lalli and Nestor Relampagos. They will
pay for the said amount by entertaining customers. The
customers will pay 300 ringgits for short time services of which 50
ringgits will go to the entertainer, and 500 ringgits for over
night service of which 100 ringgits will be given to the
entertainer. Pipen Club is a big club in a two-storey building.
There were about 100 women working in the club, many of them
were Filipina women.
Lolita Plando was forced to work as entertainer at Pipen Club.
She started working at 8:30 in the evening of June 14, 2005. She
was given the number 60 which was pinned on her. That night,
she had her first customer who selected her among the other
women at the club. He was a very big man, about 32 years old, a
Chinese-Malay who looked like a wrestler. The man paid for short
time service at the counter. Lolita was given by the cashier a
small pink paper. She was instructed to keep it. A small yellow
paper is given to the entertainer for overnight services. The
customer brought Lolita to a hotel. She did not like to go with him
but a boss at the club told her that she could not do anything. At
the hotel, the man poked a gun at Lolita and instructed her to
undress. She refused. The man boxed her on the side of her
body. She could not bear the pain. The man undressed her and
had sexual intercourse with her. He had sexual intercourse with
her every fifteen minutes or four times in one hour. When the
customer went inside the comfort room, Lolita put on her clothes
and left. The customer followed her and wanted to bring her back
to the hotel but Lolita refused. At about 1:00 oclock in the morning
of June 15, 2005, Lolita was chosen by another customer, a tall
dark man, about 40 years old. The customer paid for an overnight
service at the counter and brought Lolita to Mariner Hotel which is
far from Pipen Club. At the hotel, the man told Lolita to undress.
When she refused, the man brought her to the comfort room and
bumped her head on the wall. Lolita felt dizzy. The man opened
the shower and said that both of them will take a bath. Lolitas
clothes got wet. She was crying. The man undressed her and had
sexual intercourse with her. They stayed at the hotel until 11:00
oclock in the morning of June 15, 2005. The customer used Lolita
many times. He had sexual intercourse with her every hour.

31

Lolita worked at Pipen Club from June 14 to July 8, 2005. Every

night, a customer used her. She had at least one customer or
more a night, and at most, she had around five customers a night.
They all had sexual intercourse with her. On July 9, 2005, Lolita
was able to contact by cellphone at about 10:00 oclock in the
morning her sister Janet Plando who is staying
at Sipangkot Felda x x x. Janet is married to Said Abubakar, an
Indonesian national who is working as a driver in the factory.
x x x Lolita told Janet that she is in Labuan, Malaysia and beg
Janet to save her because she was sold as a prostitute. Janet told
Lolita to wait because her husband will go to Pipen Club to fetch
Lolita at 9:00 oclock that evening of that day. x x x She told Janet
to instruct her husband to ask for No. 60 at Pipen Club.
x x x At 9:00 oclock in the evening, Lolita was told by Daddy
Richard, one of the bosses at the club, that a customer requested
for No. 60. The man was seated at one of the tables. Lolita
approached the man and said, good evening. The man asked
her is she is the sister of Janet Plando. Lolita replied that she is,
and asked the man if he is the husband of her sister. He said, yes.
The man had already paid at the counter. He stood up and left the
place. Lolita got her wallet and followed him. x x x Lolita told her
sister about her ordeal. She stayed at her sisters house until July
22, 2005. On July 21, 2005 at 7:00 oclock in the evening, a
policeman went to her sisters house and asked if there is a
woman staying in the house without a passport. Her sister told the
policeman that she will send Lolita home on July 22. At dawn on
July 22, Lolita and her brother-in-law took a taxi
from Sipangkot Felda to Mananamblas where Lolita will board a
speedboat to Sibuto, Tawi-Tawi. x x x
Upon arrival in Zamboanga City on July 24, 2005, Lolita went
directly to the house of her eldest sister
Alejandra Plando Maywila at Sta. Catalina,Zamboanga City. She
left her things at her sisters house and immediately went to the
sister of Ronnie Aringoy in Tumaga. Ronnie was not there. She
asked Russel, niece of Ronnie, to call for the latter. Ronnie
arrived and said to her, so you are here, you arrived already. He
said he is not involved in what happened to her. Lolita asked
Ronnie to accompany her to the house of
Nestor Relampagos because she has something to get from him.
Ronnie refused. He told Lolita not to let them know that she had
already arrived from Malaysia.
Lolita was advised to file a complaint with the police regarding her
ordeal in Malaysia. On August 2, 2005, at past 9:00 oclock in the
morning, LolitaPlando went to Zamboanga Police Office at Gov.
Lim Avenue to file her complaint. x x x
In her Counter-Affidavit (Exh. 1; 1-ALalli), Hadja Jarma Lalli admitted that she met Lolita Plando on
June 6, 2005 on board M/V Mary Joy while the said vessel was at
sea on its way to Sandakan, Malaysia. The meeting was purely
coincidental. By coincidence also, Hadja Jarma,
Nestor Relampagosand Lolita Plando boarded the same van for
Kota Kinabalu, Malaysia. Upon arrival, they parted ways. They did

not see each other anymore at KotaKinabalu, Malaysia. She did

not know what happened to them. She went to Kota Kinabalu to
visit his son-in-law. She denied having recruited LolitaPlando for
employment abroad (Exh. 1; 1-A). x x x
In his Counter-Affidavit (Exh. 1-Aringoy), Ronnie Aringoy affirmed
that he personally knows Lolita Plando since she was a teenager
and he knows for a fact that her name is Cristine and
not Marife as she purports it to appear. Sometime in the first week
of June 2005, Lolita borrowed P1,000.00 from Ronnie because
she wanted to go to Malaysia to work as a guest relation officer
(GRO). Ronnie lent her P1,000.00. He told her that he knows a
certainHadja Jarma Lalli, distant neighbor, who frequents to
Malaysia and with whom she can ask pertinent information on job
opportunities. The entries in Philippine Passport No. MM401136
issued to Hadja Jarma Lalli on January 29, 2004 (Exh. 2; 2-A to 2Q) showed that she traveled to Malaysia no less than nine (9)
times within the period from March 2004 to June 2005
xxx
Nora Mae Adling, ticketing clerk of Aleson Shipping Lines, owner
of the vessel M/V Mary Joy 2 plying Zamboanga City to
Sandakan, Malaysia route and of M/V Kristel Jane 3, testified
that Hadja Jarma Lalli bought passenger tickets for her travel to
Sandakan, not only for herself but also for other women
passengers.
xxx
Ronnie Aringoy submitted the Affidavit of his witness
Rachel Caete (Exh. 2) and the Joint Affidavits of
witnesses Mercedita Salazar
and EstrellaGalgan. Rachel Canete declared that
Lolita Plando whom she knows as Cristine Plando worked as a
GRO (guest relation officer) and massage attendant at Magic
2 Videoke and Massage Parlor, that Lolita Plando has four
children sired by different men; and that she knows for a fact that
LolitaPlando has been going to and from Malaysia to work in bars.
When she testified in court, Rachel did not present other evidence
to substantiate her allegations. Mercedita Salazar
and Estrella Galgan declared in their Joint Affidavit that
Lolita Plando who is known to them as Marife Plando was their
co-worker as massage attendant and GRO (guest relation officer)
at Magic 2 Massage Parlor and Karaoke bar where she used the
names Gina Plandoand Cristine Plando. She worked in the said
establishment for nine months from February to October 2002.
She has four children from four different men. No other evidence
was submitted in court to prove their assertions.4
The Decision of the Trial Court
The Regional Trial Court rendered its Decision on 29 November
2005, with its dispositive portion declaring:

32

WHEREFORE, the Court finds accused HADJA JARMA LALLI y

PURIH and RONNIE ARINGOY y MASION GUILTY beyond
reasonable doubt in Criminal Case No. 21908 of the Crime of
Trafficking in Persons defined in Section 3(a) and penalized under
Section 10(c) in relation to Sections 4(a) and 6(c) of Republic Act
No. 9208 known as the Anti-Trafficking in Persons Act of 2003
and in Criminal Case No. 21930 of the crime of Illegal
Recruitment defined in Section 6 and penalized under Section
7(b) of Republic Act No. 8042 known as the Migrant Workers and
Overseas Filipinos Act of 1995 and SENTENCES each of said
accused:
1. In Criminal Case No. 21908, to suffer the penalty of LIFE
IMPRISONMENT and to pay a fine of P2,000,000.00 pesos;
2. In Criminal Case No. 21930, to suffer the penalty of LIFE
IMPRISONMENT and to pay a fine of P500,000.00 pesos;
3. To pay the offended party Lolita Plando y Sagadsad, jointly
and severally, the sum of P50,000.00 as moral damages,
and P50,000.00 as exemplary damages; and
4.

To pay the costs.

SO ORDERED.5
The trial court did not find credible the denials of the accusedappellants over the candid, positive and convincing testimony of
complainant Lolita Plando (Lolita). The accused, likewise, tried to
prove that Lolita was a Guest Relations Officer (GRO) in the
Philippines with four children fathered by four different men.
However, the trial court found these allegations irrelevant and
immaterial to the criminal prosecution. These circumstances,
even if true, would not exempt or mitigate the criminal liability of
the accused. The trial court found that the accused, without a
POEA license, conspired in recruiting Lolita and trafficking her as
a prostitute, resulting in crimes committed by a syndicate.6 The
trial court did not pronounce the liability of accused-at-large
Nestor Relampagos (Relampagos) because jurisdiction was not
acquired over his person.
The Decision of the Court of Appeals
On 26 February 2010, the Court of Appeals affirmed in toto the
RTC Decision and found accused-appellants guilty beyond
reasonable doubt of the crimes of Illegal Recruitment and
Trafficking in Persons.
The Issue
The only issue in this case is whether the Court of Appeals
committed a reversible error in affirming in toto the RTC Decision.
The Ruling of this Court
We dismiss the appeal for lack of merit.

We modify and increase the payment of damages in the crime of

Trafficking in Persons from P50,000 to P500,000 for moral
damages andP50,000 to P100,000 for exemplary damages.
Grounds for Appeal
In his Appeal Brief,7 Ronnie Aringoy (Aringoy) admits that he
referred Lolita to a
certain Hadja Jarma Lalli (Lalli), Aringoys neighbor who frequents
Malaysia and from whom Lolita could ask pertinent information on
job opportunities.8 Aringoy claims that he learned later that Lolita
left for Malaysia.9 He denies knowing Relampagos to whom Lolita
paid P28,000 as placement fee for finding her work in Malaysia.10
Aringoy presented three witnesses: his niece
Rachel Aringoy Caete (Rachel), Mercedita Salazar (Mercedita),
and Estrella Galgan (Estrella). In her testimony, Rachel declared
that: (1) Lolita is a GRO and Massage Attendant at Magic
2 Videoke and Massage Parlor; (2) Lolita has four children sired
by different men; and (3) Lolita has been travelling to Malaysia to
work in bars. Mercedita and Estrella, on the other hand, declared
in their testimonies that Lolita was their co-worker as Massage
Attendant and GRO in Magic 2 Massage Parlor and Karaoke Bar
from February to October 2002.11
Aringoy assailed the credibility of Lolitas testimony because of
inconsistencies with regard to: (1) Lolitas grandfathers status and
name; (2) the persons (Ronnie and Rachel) who approached
Lolita to talk about the job opportunity in Malaysia; (3) certain
statements in Lolitas testimony that were not alleged in her Sworn
Statement; (4) payment of placement fee of 28,000; and (5)
names of the other female recruits who were with Lolita in the
boat going to Sandakan and Kota Kinabalu.12 Aringoy likewise
claims that he was never included in the initial complaint filed by
Lolita, and Lolitas statements about her meetings with
him, Lalli and Relampagos on 3, 4, 5 and 6 June 2005 were not
corroborated by any witness.13
On the other hand, in her Appeal Brief,14 Lalli claims that she
simply met Lolita on 6 June 2005 on board the ship M/V Mary Joy
bound for Sandakan, Malaysia.15 Lalli denies having met Lolita
prior to their meeting on board M/V Mary Joy.16 Lalli claims she
was going to Malaysia to visit her daughter and son-in-law who
was a Malaysian national.17 Lalli further claims that she only
spoke to Lolita aboard the ship for idle conversation to pass away
the time.18 In this conversation, she learned that Lolita was with a
party of girls accompanied byRelampagos, and the latter was
bringing them to Malaysia to work as sales ladies.19 Lalli admits
that Lolita, Relampagos and the other girls rode in Lallis van in
Sandakan, driven by a friend of Lallis son-in-law.20 They all rode
together because Relampagos talked to the van driver, requesting
if he and his party of girls could board the van and pay their fare
when they reach the city proper of Kota Kinabalu.21 Lalliboarded
the van with Lolita, Relampagos and their companions.22 Upon
reaching her destination, Lalli got off the van, leaving

33

Lolita,Relampagos and their other companions to continue their

journey towards the city proper of Kota Kinabalu.23 After spending
several days in Malaysia with her daughter and son-inlaw, Lalli went to Brunei to visit a cousin on 12 June 2005, and
headed back to Malaysia on 14 June 2005.24
Lalli assails the credibility of Lolita due to inconsistencies in her
testimony with regard to: (1) Lolita not being in Southcom Village
on 5 June 2005 at 6:00 p.m., as she claimed, but
in Buenavista Village; and (2) Lolitas claim
that Lalli and Relampagos on 12 June 2005 brought the girls to
Labuan, when in fact, Lalli was already in Brunei on 12 June
2005, as evidenced by the stamp in her passport.25
Credibility of Testimonies
Both Aringoy and Lalli, in their respective Appeal Briefs, assail the
testimony of Lolita due to its alleged inconsistency on immaterial
facts, such as the status of Lolitas grandfather, the name of the
village she was in, the date she was brought to Labuan, Malaysia,
and the like. In a long line of cases, the Court has ruled that
inconsistencies pointed out by the accused in the testimony of
prosecution witnesses relating to minor details do not destroy the
credibility of witnesses.26 On the contrary, they indicate that the
witnesses were telling the truth and not previously rehearsed.27
The clear material inconsistency in this case, however, lies in the
testimonies of accused Aringoy and Lalli. Aringoy admitted that he
referred Lolita to a certain Hadja Jarma Lalli, his neighbor who
frequents Malaysia and with whom Lolita could ask pertinent
information on job opportunities.28 Lalli, on the other hand, denies
having met Lolita prior to their meeting on board M/V Mary Joy on
6 June 2005,29 and claims that her meeting with Lolita was purely
coincidental.30 Lalli admits that, even if she met Relampagos,
Lolita and their companions only on that day on board M/V Mary
Joy, she allowed these people to ride with her in Malaysia using
the van driven by the friend of Lallisson-inlaw.31 Lastly, Lalli claims that she often goes to Malaysia to visit
her daughter and son-in-law.32 However, this does not explain
whyLalli purchased boat tickets, not only for herself, but for the
other women passengers going to Malaysia.33 From March 2004
to June 2005,Lalli traveled to Malaysia no less than nine (9)
times.34 Nora Mae Adling, ticketing clerk of Aleson Shipping Lines,
owner of the vessel M/V Mary Joy 2 plying Zamboanga City to
Sandakan, Malaysia route and of M/V Kristel Jane 3, testified in
open court that Hadja Jarma Lallibought passenger tickets for her
travel to Sandakan, not only for herself but also for other women
passengers.35 Clearly, it is not Lolitas testimony that is materially
inconsistent, but the testimonies of Lalli and Aringoy.

Aringoy presented his witnesses

Rachel, Mercedita and Estrella to impeach the credibility of Lolita
by alleging that Lolita was a Massage Attendant and GRO in a

massage parlor and videoke bar. His witness Rachel further

declared that Lolita, at the young age of 23 years, already had
four children sired by four different men, and had been previously
travelling to Malaysia to work in bars. These bare allegations were
not supported by any other evidence. Assuming, for the sake of
argument, that Lolita previously worked in a Karaoke Bar and
MassageParlor and that she had four children from different men,
such facts cannot constitute exempting or mitigating
circumstances to relieve the accused from their criminal liabilities.
It does not change the fact that the accused recruited Lolita to
work in Malaysia without the requisite POEA license, thus
constituting the crime of illegal recruitment. Worse, the accused
deceived her by saying that her work in Malaysia would be as
restaurant entertainer, when in fact, Lolita would be working as a
prostitute, thus, constituting the crime of trafficking.
The facts found by the trial court, as affirmed in toto by the Court
of Appeals, are, as a general rule, conclusive upon this Court, in
the absence of any showing of grave abuse of discretion.36 The
Court, however, may determine the factual milieu of cases or
controversies under specific circumstances, such as:

(1)

when the inference made is manifestly mistaken, absurd or impossible

(2)

when there is a grave abuse of discretion;

(3)

when the finding is grounded entirely on speculations, surmises or con

(4)

when the judgment of the Court of Appeals is based on misapprehensi

(5)

when the findings of fact are conflicting;

(6)

when the Court of Appeals, in making its findings, went beyond the issu
contrary to the admissions of both appellant and appellee;

(7)

when the findings of the Court of Appeals are contrary to those of the tr

(8)

when the findings of fact are conclusions without citation of specific evi

(9)

when the Court of Appeals manifestly overlooked certain relevant facts

which, if properly considered, would justify a different conclusion; and

(10) when the findings of fact of the Court of Appeals are premised on the a
contradicted by the evidence on record.37

In this case, none of these exceptions to the general rule on

conclusiveness of facts are applicable. The Court gives weight
and respect to the trial courts findings in criminal prosecution
because the latter is in a better position to decide the question,
having heard the witnesses in person and observed their
deportment and manner of testifying during the trial.38 For this

34

reason, the Court adopts the findings of fact of the trial court, as
affirmed in toto by the Court of Appeals, there being no grave
abuse of discretion on the part of the lower courts.
Criminal Case No. 21930 (Illegal Recruitment)
Section 6 of Republic Act No. 8042 (RA 8042) defines illegal
recruitment, as follows:
[I]llegal recruitment shall mean any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring, or procuring workers and
includesreferring, contact 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.

illegal recruitment by three or more persons conspiring or

confederating with one another is deemed committed by a
syndicate and constitutes economic sabotage,40 for which the
penalty of life imprisonment and a fine of not less than 500,000
but not more than 1,000,000 shall be imposed.41
The penalties in Section 7 of RA 8042 have already been
amended by Section 6 of Republic Act No. 10022, and have been
increased to a fine of not less than 2,000,000 but not more than
5,000,000. However, since the crime was committed in 2005,
we shall apply the penalties in the old law, RA 8042.
In People v. Gallo,42 the Court enumerated the elements of
syndicated illegal recruitment, to wit:

xxx

1. the offender undertakes either any activity within the

meaning of recruitment and placement defined under Article
13(b), or any of the prohibited practices enumerated under Art. 34
of the Labor Code;

Illegal recruitment when committed by a syndicate or in large

scale shall be considered an offense involving economic
sabotage.

2. he has no valid license or authority required by law to

enable one to lawfully engage in recruitment and placement of
workers; and

xxx

3. the illegal recruitment is committed by a group of three (3) or

more persons conspiring or confederating with one another.43

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. (Emphasis supplied)
Article 13(f) of Presidential Decree No. 442, as amended,
otherwise known as the Labor Code of the Philippines, defines
authority as follows:
Authority means a document issued by the Department
of Labor authorizing a person or association to engage in
recruitment and placement activities as a private recruitment
entity.
Section 7 of RA 8042 provides for the penalty of illegal
recruitment committed by a syndicate (which constitutes
economic sabotage), as follows:
(b) The penalty of life imprisonment and a fine of not less than
Five hundred thousand pesos (P500,000.00) nor more than One
million pesos (P1,000,000.00) shall be imposed if illegal
recruitment constitutes economic sabotage as defined therein.
It is clear that a person or entity engaged in recruitment and
placement activities without the requisite authority from the
Department of Laborand Employment (DOLE), whether for profit
or not, is engaged in illegal recruitment.39 The Philippine
Overseas Employment Administration (POEA), an agency under
DOLE created by Executive Order No. 797 to take over the duties
of the Overseas Employment Development Board, issues the
authority to recruit under the Labor Code. The commission of

Article 13(b) of the Labor Code of the Philippines 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, provided, that any person or entity which, in any manner,
offers or promises for a fee, employment to two or more persons
shall be deemed engaged in recruitment and placement.
Clearly, given the broad definition of recruitment and placement,
even the mere act of referring someone for placement abroad can
be considered recruitment. Such act of referral, in connivance
with someone without the requisite authority or POEA license,
constitutes illegal recruitment. In its 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.44
In this case, the trial court, as affirmed by the appellate court,
found Lalli, Aringoy and Relampagos to have conspired and
confederated with one another to recruit and place Lolita for work
in Malaysia, without a POEA license. The three elements of
syndicated illegal recruitment are present in this case, in
particular: (1) the accused have no valid license or authority
required by law to enable them to lawfully engage in the
recruitment and placement of workers; (2) the accused engaged
in this activity of recruitment and placement by actually recruiting,
deploying and transporting Lolita to Malaysia; and (3) illegal

35

recruitment was committed by three persons

(Aringoy, Lalli and Relampagos), conspiring and confederating
with one another.
Aringoy claims and admits that he only referred Lolita to Lalli for
job opportunities to Malaysia. Such act of referring, whether for
profit or not, in connivance with someone without a POEA license,
is already considered illegal recruitment, given the broad
definition of recruitment and placement in the Labor Code.
Lalli, on the other hand, completely denies any involvement in the
recruitment and placement of Lolita to Malaysia, and claims she
only met Lolita for the first time by coincidence on board the ship
M/V Mary Joy. Lallis denial does not deserve credence because it
completely conflicts with the testimony of Aringoy who claims he
referred Lolita to Lalli who had knowledge of the job opportunities
in Malaysia.
The conflicting testimonies of Lalli and Aringoy on material facts
give doubt to the truth and veracity of their stories, and
strengthens the credibility of the testimony of Lolita, despite
allegations of irrelevant inconsistencies.
No improper motive could be imputed to Lolita to show that she
would falsely testify against the accused. The absence of
evidence as to an improper motive entitles Lolitas testimony to full
faith and credit.45
Aringoy claims that no conspiracy existed in illegal recruitment, as
he denies even knowing Relampagos, who is currently atlarge. Lallidenies any involvement in the illegal recruitment, and
claims that she only met Relampagos through Lolita on board the
ship M/V Mary Joy on 6 June 2005, and learned
that Relampagos was bringing Lolita and their other girl
companions to Malaysia to work as sales ladies.
Under Article 8 of the Revised Penal Code, there is conspiracy
when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it.
In People v. Lago,46 the Court discussed conspiracy in this wise:
The elements of conspiracy are the following: (1) two or more
persons came to an agreement, (2) the agreement concerned the
commission of a felony, and (3) the execution of the felony was
decided upon. Proof of the conspiracy need not be based on
direct evidence, because it may be inferred from the parties
conduct indicating a common understanding among themselves
with respect to the commission of the crime. Neither is it
necessary to show that two or more persons met together and
entered into an explicit agreement setting out the details of an
unlawful scheme or objective to be carried out. The conspiracy
may be deduced from the mode or manner in which the crime
was perpetrated; it may also be inferred from the acts of the

accused evincing a joint or common purpose and design,

concerted action and community of interest. 47
In this case, Lolita would not have been able to go to Malaysia if
not for the concerted efforts of Aringoy, Lalli and Relampagos.
First, it wasAringoy who knew Lolita, since Aringoy was
a neighbor of Lolitas grandfather. It was Aringoy who referred
Lolita to Lalli, a fact clearly admitted by Aringoy. Second, Lolita
would not have been able to go to Malaysia if Lalli had not
purchased Lolitas boat ticket to Malaysia. This fact can be
deduced from the testimony of Nora Mae Adling (Nora), ticketing
clerk of Aleson Shipping Lines, owner of the vessel M/V Mary Joy
2 plying Zamboanga City to Sandakan, Malaysia route and of
M/V Kristel Jane 3. Nora testified in open court
that Hadja JarmaLalli bought passenger tickets for her travel to
Sandakan, not only for herself but also for other women
passengers. Lallis claim that she only goes to Malaysia to visit her
daughter and son-in-law does not explain the fact why she bought
the boat tickets of the other women passengers going to
Malaysia. In fact, it appears strange that Lalli visited Malaysia
nine (9) times in a span of one year and three months (March
2004 to June 2005) just to visit her daughter and son-in-law. In
Malaysia, it was Relampagos who introduced Lolita and her
companions to a Chinese Malay called Boss as their first
employer. When Lolita and her companions went back to the hotel
to tellRelampagos and Lalli that they did not want to work as
prostitutes, Relampagos brought Lolita and the girls on board a
van to SangawanChina Labuan, where they stayed in a room for
one night. The next day, they were picked up by a van and
brought to Pipen Club, where Lolita and her companions worked
as prostitutes. To date, accused Relampagos is at large and has
not been brought under the jurisdiction of the courts for his
crimes.
Flight in criminal law is the evading of the course of justice by
voluntarily withdrawing oneself in order to avoid arrest or
detention or the institution or continuance of criminal
proceedings.48 The unexplained flight of an accused person may
as a general rule be taken into consideration as evidence having
a tendency to establish his guilt.49 Clearly, in this case, the flight of
accused Relampagos, who is still at-large, shows an indication of
guilt in the crimes he has been charged.
It is clear that through the concerted efforts
of Aringoy, Lalli and Relampagos, Lolita was recruited and
deployed to Malaysia to work as a prostitute. Such conspiracy
among Aringoy, Lalli and Relampagos could be deduced from the
manner in which the crime was perpetrated each of the accused
played a pivotal role in perpetrating the crime of illegal
recruitment, and evinced a joint common purpose and design,
concerted action and community of interest.
For these reasons, this Court affirms the CA Decision, affirming
the RTC Decision, declaring accused
Ronnie Aringoy y Masion and HadjaJarma Lalli y Purih guilty

36

beyond reasonable doubt of the crime of illegal recruitment

committed by a syndicate in Criminal Case No. 21930, with a
penalty of life imprisonment and a fine of 500,000 imposed on
each of the accused.
Criminal Case No. 21908 (Trafficking in Persons)
Section 3(a) of Republic Act No. 9208 (RA 9208), otherwise
known as the Anti-Trafficking in Persons Act of 2003, defines
Trafficking in Persons, as follows:
Trafficking in Persons refers to the recruitment, transportation,
transfer or harboring, or receipt of persons with or without the
victims consent or knowledge, within or across national borders
by means of threat or use of force, or other forms of coercion,
abduction, fraud, deception, abuse of power or of position, taking
advantage of the vulnerability of the person, or, the giving or
receiving of payments or benefits to achieve the consent of a
person having control over another person for the purpose of
exploitation which includes at a minimum, the exploitation or the
prostitution of others or other forms of sexual exploitation,
forced labor or services, slavery, servitude or the removal or sale
of organs. x x x (Emphasis supplied)
Section 4 of RA 9208 enumerates the prohibited acts of
Trafficking in Persons, one of which is:
(a) To recruit, transport, transfer, harbor, provide, or receive a
person by any means, including those done under the pretext of
domestic or overseas employment or training or apprenticeship,
for the purpose of prostitution, pornography, sexual exploitation,
forced labor, slavery, involuntary servitude or debt bondage.
The crime of Trafficking in Persons is qualified when committed
by a syndicate, as provided in Section 6(c) of RA 9208:
(c) When the crime is committed by a syndicate, or in large scale.
Trafficking 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.
Section 10(c) of RA 9208 provides for the penalty of qualified
trafficking:
(c) Any person found guilty of qualified trafficking under Section 6
shall suffer the penalty of life imprisonment and a fine of not less
than Two million pesos (P2,000,000.00) but not more than Five
million pesos (P5,000,000.00).
The Anti-Trafficking in Persons Act is a new law passed last 26
May 2003, designed to criminalize the act of trafficking in persons
for prostitution, sexual exploitation, foced labor and slavery,
among others.

In this case, Aringoy claims that he cannot be convicted of the

crime of Trafficking in Persons because he was not part of the
group that transported Lolita from the Philippines to Malaysia on
board the ship M/V Mary Joy. In addition, he presented his niece,
Rachel, as witness to testify that Lolita had been travelling to
Malaysia to work in bars. On the other hand, Lalli denies any
involvement in the recruitment and trafficking of Lolita, claiming
she only met Lolita for the first time on board M/V Mary Joy going
to Malaysia.
The testimony of Aringoys niece, Rachel, that Lolita had been
travelling to Malaysia to work in bars cannot be given credence.
Lolita did not even have a passport to go to Malaysia and had to
use her sisters passport when Aringoy, Lalli and Relampagos first
recruited her. It is questionable how she could have been
travelling to Malaysia previously without a passport, as Rachel
claims. Moreover, even if it is true that Lolita had been travelling
to Malaysia to work in bars, the crime of Trafficking in Persons
can exist even with the victims consent or knowledge under
Section 3(a) of RA 9208.
Trafficking in Persons under Sections 3(a) and 4 of RA 9208 is not
only limited to transportation of victims, but also includes the act
of recruitment of victims for trafficking. In this case, since it has
been sufficiently proven beyond reasonable doubt, as discussed
in Criminal Case No. 21930, that all the three accused
(Aringoy, Lalli and Relampagos) conspired and confederated with
one another to illegally recruit Lolita to become a prostitute in
Malaysia, it follows that they are also guilty beyond reasonable
doubt of the crime of Qualified Trafficking in Persons committed
by a syndicate under RA 9208 because the crime of recruitment
for prostitution also constitutes trafficking.
When an act or acts violate two or more different laws and
constitute two different offenses, a prosecution under one will not
bar a prosecution under the other.50 The constitutional right
against double jeopardy only applies to risk of punishment twice
for the same offense, or for an act punished by a law and an
ordinance.51 The prohibition on double jeopardy does not apply to
an act or series of acts constituting different offenses.
DAMAGES
Lolita claimed actual damages of 28,000, which she allegedly
paid to the accused as placement fee for the work of restaurant
entertainer in Malaysia. The trial court did not award this amount
to Lolita. We agree and affirm the trial courts non-award due to
Lolitas inconsistent statements on the payment of placement fee.
In her sworn statement, Lolita alleged that she paid 28,000 as
placement fee to Lalli.52 On cross-examination, however, she
admitted that she never paid 28,000 to the accused.53
We, however, modify and increase the payment of damages in
the crime of Trafficking in Persons from 50,000 to 500,000 as

37

moral damages and 50,000 to 100,000 as exemplary

damages.

The parents of the female seduced, abducted, raped, or abused,

referred to in No. 3 of this article, may also recover moral
damages.

The Civil Code describes moral damages in Article 2217:

Art. 2217. Moral damages include physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar injury.
Though incapable of pecuniary computation, moral damages may
be recovered if they are the proximate result of the defendants
wrongful act for omission.
Exemplary damages, on the other hand, are awarded in addition
to the payment of moral damages, by way of example or
correction for the public good, as stated in the Civil Code:
Art. 2229. Exemplary or corrective damages are imposed, by way
of example or correction for the public good, in addition to the
moral, temperate, liquidated or compensatory damages.
Art. 2230. In criminal offenses, exemplary damages as a part of
the civil liability may be imposed when the crime was committed
with one or more aggravating circumstances. Such damages are
separate and distinct from fines and shall be paid to the offended
party.
The payment of 500,000 as moral damages and 100,000 as
exemplary damages for the crime of Trafficking in Persons as a
Prostitute finds basis in Article 2219 of the Civil Code, which
states:
Art. 2219. Moral damages may be recovered in the following and
analogous cases:
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;

The spouse, descendants, ascendants, and brothers and sisters

may bring the action mentioned in No. 9 of this article, in the order
named.
The criminal case of Trafficking in Persons as a Prostitute is an
analogous case to the crimes of seduction, abduction, rape, or
other lascivious acts. In fact, it is worse. To be trafficked as a
prostitute without ones consent and to be sexually violated four to
five times a day by different strangers is horrendous and
atrocious. There is no doubt that Lolita experienced physical
suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, and social humiliation
when she was trafficked as a prostitute in Malaysia. Since the
crime of Trafficking in Persons was aggravated, being committed
by a syndicate, the award of exemplary damages is likewise
justified.
WHEREFORE, we AFFIRM the Decision of the Court of Appeals
dated 26 February 2010, affirming the Decision of the Regional
Trial Court of Zamboanga City dated 29 November 2005, finding
accused Lalli and Aringoy guilty beyond reasonable doubt of the
crimes of Illegal Recruitment and Trafficking in Persons
committed by a syndicate, with the following MODIFICATIONS:
1. In Criminal Case No. 21908, each of the accused is
sentenced to suffer the penalty of LIFE IMPRISONMENT and to
pay a fine of 2,000,000;
2. In Criminal Case No. 21930, each of the accused is
sentenced to suffer the penalty of LIFE IMPRISONMENT and to
pay a fine of 500,000;
3. Each of the accused is ordered to pay the offended party
Lolita Plando y Sagadsad, jointly and severally, the sum of
500,000 as moral damages, and 100,000 as
exemplary damages for the crime of Trafficking in Persons; and to
pay the costs.
The Court cannot pronounce the liability of accused-at-large
Nestor Relampagos as jurisdiction over his person has not been
acquired.

(7) Libel, slander or any other form of defamation;

SO ORDERED.
(8) Malicious prosecution;
G.R. No. 211465

December 3, 2014

(9) Acts mentioned in Article 309;

(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30,
32, 34, and 35.

PEOPLE OF THE :PHILIPPINES, Plaintiff-appellee,

vs.
SHIRLEY A. CASIO, Accused-appellant.
DECISION

38

LEONEN, J.:

During trial, PO1 Luardo and PO1 Veloso testified that their
conversation with accused went as follows:

"Chicks mo dong?"1
With this sadly familiar question being used on the streets of
many of our cities, the fate of many desperate women is sealed
and their futures vanquished. This case resulted in the rescue of
two minors from this pernicious practice. Hopefully, there will be
more rescues. Trafficking in persons is a deplorable crime. It is
committed even though the minor knew about or consented to the
act of trafficking.

Accused: Chicks mo dong?(Do you like girls, guys?)

PO1 Luardo: Unya mga bag-o? Kanang batan-on kay naa mi
guests naghulat sa motel. (Are they new? They must be young
because we have guests waiting at the motel.)
Accused: Naa, hulat kay magkuha ko. (Yes, just wait and Ill get
them.)12

This case involves Republic Act No. 9208,2 otherwise known as

the "Anti-Trafficking in Persons Act of 2003."3

At that point, PO1 Luardo sent a text message to PSI Ylanan that
they found a prospective subject.13

Accused Shirley A. Casio was charged for the violation of

Republic Act No. 9208, Section 4(a), qualified by Section 6(a).
The information against accused, dated May 5, 2008, states:

After a few minutes, accused returned with AAA and BBB, private
complainants in this case.14 Accused: Kining duha kauyon mo
ani? (Are you satisfied with these two?)

That on or about the 3rd day of May 2008, at about 1:00 oclock
A.M., in the City of Cebu, Philippines, and within the jurisdiction of
this Honorable Court, the said accused, with deliberate intent,
with intent to gain, did then and there hire and/or recruit AAA, a
minor, 17 years old and BBB for the purpose of prostitution and
sexual exploitation, by acting as their procurer for different
customers, for money, profit or any other consideration, in
Violation of Sec. 4, Par. (a), Qualified by Sec. 6, Par. (a), of R.A.
9208 (Qualified Trafficking in Persons).

PO1 Veloso: Maayo man kaha na sila modala ug kayat? (Well,

are they good in sex?)15 Accused gave the assurance that the
girls were good in sex. PO1 Luardo inquired how much their
serviceswould cost. Accused replied, "Tag kinientos" (P500.00).16

CONTRARY TO LAW.

The facts, as found by the trial court and the Court of Appeals, are
as follows:
On May 2, 2008, International Justice Mission (IJM),5 a
nongovernmental organization, coordinated with the police in
order to entrap persons engaged in human trafficking in Cebu
City.6
Chief PSI George Ylanan, SPO1 Felomino Mendaros, SPO1 Fe
Altubar, PO1 Albert Luardo, and PO1 Roy Carlo Veloso
composed the team of police operatives.7 PO1 Luardo and PO1
Veloso were designated as decoys, pretending to be tour guides
looking for girls to entertain their guests.8 IJM provided them with
marked money, which was recorded in the police blotter.9
The team went to Queensland Motel and rented Rooms 24 and
25. These rooms were adjacent to each other. Room 24 was
designated for the transaction while Room 25 was for the rest of
the police team.10
PO1 Luardo and PO1 Veloso proceeded to D. Jakosalem Street
in Barangay Kamagayan, Cebu Citys red light district. Accused
noticed them and called their attention by saying "Chicks mo
dong?" (Do you like girls, guys?).11

PO1 Veloso and PO1 Luardo convinced accused to come with

them to Queensland Motel. Upon proceeding toRoom 24, PO1
Veloso handed the marked money to accused.17
As accused counted the money, PO1 Veloso gave PSI Ylanan a
missed call. This was their pre-arranged signal. The rest of the
team proceeded to Room 24, arrested accused, and informed her
of her constitutional rights. The police confiscated the marked
money from accused.18 Meanwhile, AAA and BBB "were brought
to Room 25 and placed in the custody of the representatives from
the IJM and the DSWD."19
During trial, AAA testified that she was born on January 27, 1991.
This statement was supported by a copy of her certificate of live
birth.20
AAA narrated that in 2007, she worked as a house helper in
Mandaue City. In March 2008 she stopped working as a house
helper and transferred to Cebu City. She stayed with her cousin,
but she subsequently moved to a boarding house. It was there
where she met her friend, Gee Ann. AAA knew that Gee Ann
worked in a disco club. When Gee Ann found out that AAA was no
longer a virgin, she offered AAA work. AAA agreed because she
needed the money in order to helpher father. AAA recalled that
she had sex with her first customer. She was paidP200.00 and
given an additional P500.00 as tip. For the first few weeks, Gee
Ann provided customers for AAA. Eventually, Gee Ann brought
her to Barangay Kamagayan, telling her that there were more
customers in that area.21
AAA stated that she knew accused was a pimp because AAA
would usually see her pimping girls to customers in Barangay

39

Kamagayan.22 AAA further testified that on May 2, 2008, accused

solicited her services for a customer. That was the first time that
she was pimped by accused.23 Accused brought her, BBB, and a
certain Jocelyn to Queensland Motel.24

paragraph (a), Section 4 as qualified under paragraph (a), Section

6 of R.A. 9208 and sentenced to suffer imprisonment of TWENTY
(20) YEARS and to pay a fine of ONE MILLION
(Php1,000,000.00).

AAA testified that Jocelyn stayed inthe taxi, while she and BBB
went to Room 24. It was in Room 24 where the customer paid
Shirley. The police rushed in and toldAAA and BBB to go to the
other room. AAA was then met by the Department of Social
Welfare and Development personnel who informed her that she
was rescued and not arrested.25

Finally, accused is ordered to pay the costs of these proceedings.

AAA described that her job as a prostitute required her to display

herself, along with other girls, between 7 p.m. to 8 p.m. She
received P400.00 for every customer who selected her.26
The prosecution also presented the police operatives during trial.
PSI Ylanan, SPO1 Mendaros, and SPO1 Altubar testified that
after PO1 Veloso had made the missed call to PSI Ylanan, they
"rushed to Room 24 and arrested the accused."27 SPO1 Altubar
retrieved the marked money worth P1,000.00 from accuseds right
hand "and upon instruction from PCINSP Ylanan recorded the
same at the police blotter prior operation. . . ."28
The trial court noted that AAA requested assistance from the IJM
"in conducting the operation against the accused."29
Version of the accused
In defense, accused testified thatshe worked as a laundry woman.
On the evening of May 2, 2008, she went out to buy supper. While
walking, she was stopped by two men on board a blue car. The
two men asked her if she knew someone named Bingbing. She
replied that she only knew Gingging but not Bingbing. The men
informed her that they were actually looking for Gingging, gave
her a piece of paper witha number written on it, and told her to tell
Gingging to bring companions. When accused arrived home, she
contacted Gingging. Gingging convinced her to come because
allegedly, she would be given money by the two males.30 Ruling of
the trial court
The Regional Trial Court, Branch 14 in Cebu City found accused
guilty beyond reasonable doubt and held31 that:
Accused had consummated the act of trafficking of person[s] . . .
as defined under paragraph (a), Section 3 of R.A. 9208 for the
purpose of letting her engage in prostitution asdefined under
paragraph [c] of the same Section; the act of "sexual intercourse"
need not have been consummated for the mere "transaction" i.e.
the solicitation for sex and the handing over of the "bust money"
of Php1,000.00 already consummated the said act.
....
WHEREFORE, the Court finds accused, SHIRLEY A. CASIO,
GUILTY beyond reasonable doubt of trafficking in persons under

SO ORDERED[.]32
Ruling of the Court of Appeals
The Court of Appeals affirmed the findings of the trial court but
modified the fine and awarded moral damages. The dispositive
portion of the decision33 reads:
WHEREFORE, in view of the foregoing premises, the instant
appeal is hereby DENIED. The assailed Decision dated 10 August
2010 promulgated by the Regional Trial Court, Branch 14 in Cebu
City in Crim. Case No. CBU-83122 is AFFIRMED WITH
MODIFICATIONS. The accused-appellant is accordingly
sentenced to suffer the penalty of life imprisonment and a fine of
Php2,000,000 and is ordered to pay each of the private
complainants Php150,000 as moral damages.
SO ORDERED.34
Accused filed a notice of appeal35 on August 28, 2013, which the
Court of Appeals noted and gavedue course in its
resolution36 dated January 6, 2014. The case records of CA-G.R.
CEB-CR No. 01490 were received by this court on March 17,
2014.37
In the resolution38 dated April 29, 2014, this court resolved to
notify the parties that they may file their respective supplemental
briefs within 30 days from notice. This court also required the
Superintendent of the Correctional Institution for Women to
confirm the confinement of accused.39
Counsel for accused40 and the Office of the Solicitor
General41 filed their respective manifestations, stating that they
would no longer file supplemental briefs considering that all
issues had been discussed in the appellants brief and appellees
brief filed before the Court of Appeals. Through a letter42 dated
June 17, 2014, Superintendent IV Rachel D. Ruelo confirmed
accuseds confinement at the Correctional Institution for Women
since October 27, 2010.
The sole issue raised by accused iswhether the prosecution was
able to prove her guilt beyond reasonable doubt.
However, based on the arguments raised in accuseds brief, the
sole issue may be dissected into the following:
(1) Whether the entrapment operation conducted by the police
was valid, considering that there was no prior surveillance and the
police did not know the subject of the operation;43

40

(2) Whether the prosecution was able to prove accuseds guilt

beyond reasonable doubt even though there was no evidence
presented to show that accused has a history of engaging in
human trafficking;44 and

Trafficking Protocols entry into force was on December 25,

2003.58

(3) Whether accused was properly convicted of trafficking in

persons, considering that AAA admitted that she works as a
prostitute.45

Article 3 Use of terms For the purposes of this Protocol:

Arguments of accused
Accused argues that there was no valid entrapment. Instead, she
was instigated into committing the crime.46 The police did not
conduct prior surveillance and did not evenknow who their subject
was.47 Neither did the police know the identities of the alleged
victims.
Accused further argues that under the subjective test, she should
be acquitted because the prosecution did notpresent evidence
that would prove she had a history of engaging in human
trafficking or any other offense. She denied being a pimp and
asserted that she was a laundry woman.48 In addition, AAA
admitted that she worked as a prostitute. Thus, it was her
decision to display herself to solicit customers.49
Arguments of the plaintiff-appellee
The Office of the Solicitor General, counsel for plaintiff-appellee
People of the Philippines, argued that the trial court did not err in
convicting accused because witnesses positively identified her as
the person who solicited customers and received money for AAA
and BBB.50 Entrapment operations are valid and have been
recognized by courts.51 Likewise, her arrest in flagrante delicto is
valid.52 Hence, the trial court was correct in stating that accused
had "fully consummated the act of trafficking of persons. . ."53
We affirm accused Shirley A. Casios conviction.
I.
Background of Republic Act No. 9208
The United Nations Convention against Transnational Organized
Crime (UN CTOC) was "adopted and opened for signature,
ratification and accession"54 on November 15, 2000. The UN
CTOC is supplemented by three protocols: (1) the Protocol to
Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children; (2) the Protocol against the Smuggling of
Migrants by Land, Sea and Air; and, (3) the Protocol against the
Illicit Manufacturing of and Trafficking in Firearms, their Parts and
Components and Ammunition.55
On December 14, 2000, the Philippines signed the United Nations
"Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children" (Trafficking Protocol).56 This was
ratified by the Philippine Senate on September 30, 2001.57 The

In the Trafficking Protocol, human trafficking is defined as:

(a) "Trafficking in persons" shall mean the recruitment,

transportation, transfer, harbouring or receipt of persons, by
means of the threat or use of force or other forms of coercion, of
abduction, of fraud, of deception, of the abuse of power or of a
position of vulnerability or of the giving or receiving of payments
or benefits to achieve the consent of a person having control over
another person, for the purpose of exploitation. Exploitation shall
include, at a minimum, the exploitation of the prostitution of others
or other forms of sexual exploitation, forced labour or services,
slavery or practices similar to slavery, servitude or the removal of
organs;
(b) The consent of a victim of trafficking in persons to the intended
exploitation set forth in subparagraph (a) of this article shall be
irrelevant where any of the means set forth in subparagraph (a)
have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt
of a child for the purpose of exploitation shall be considered
"trafficking in persons" even if this does not involve any of the
means set forth in subparagraph (a) of this article;
(d) "Child" shall mean any person under eighteen years of age.
Senator Loren Legarda, in her sponsorship speech, stated that
the "Anti-Trafficking Act will serve as the enabling law of the
countrys commitment to [the] protocol."59
Senator Luisa Ejercito Estrada also delivered a sponsorship
speech and described trafficking in persons as follows:
Trafficking in human beings, if only to emphasize the gravity of its
hideousness, is tantamount to modern-day slavery at work. It is a
manifestation of one of the most flagrant forms of violence against
human beings. Its victims suffer the brunt of this insidious form of
violence. It is exploitation, coercion, deception, abduction, rape,
physical, mental and other forms of abuse, prostitution, forced
labor, and indentured servitude.
....
As of this time, we have signed the following: the Convention on
the Elimination of all Forms of Discrimination Against Women; the
1995 Convention on the Rights of the Child; the United Nations
Convention on the Protection of Migrant Workers and their
Families; and the United Nations Resolution on Trafficking in
Women and Girls, among others.

41

Moreover, we have also expressed our support for the United

Nations Convention Against Organized Crime, including the
Trafficking Protocol in October last year.
At first glance, it appears thatwe are very responsive to the
problem. So it seems.
Despite these international agreements, we have yet to come up
with a law that shall squarely address human trafficking.60
During the interpellation of Republic Act No. 9208, then numbered
as Senate Bill No. 2444, Senator Teresa Aquino-Oreta asked if
there was a necessity for an anti-trafficking law when other laws
exist that cover trafficking.61
Senator Luisa Ejercito Estrada explained:
At present, Mr. President, the relevant laws to the trafficking issue
are the Revised Penal Code, Republic Act No. 8042 or the
Migrant Workers and Overseas Filipino Act, R[epublic] A[ct] No.
6955 or the Mail-Order Bride Act, and Republic Act No. 8239 or
the Philippine Passport Act. These laws address issues such as
illegal recruitment, prostitution, falsification of public documents
and the mail-order bride scheme. These laws do not respond to
the issue of recruiting, harboring or transporting persons resulting
in prostitution, forced labor, slavery and slavery-like practices.
They only address to one or some elements of trafficking
independent of their results or consequence.62 (Emphasis
supplied)
Thus, Republic Act No. 9208 was enacted in order to fully address
the issue of human trafficking. Republic Act No. 9208 was passed
on May 12, 2003, and approved on May 26, 2003.
II.
Elements of trafficking in persons
The elements of trafficking inpersons can be derived from its
definition under Section 3(a) of Republic Act No. 9208, thus:
(1) The actof "recruitment, transportation, transfer or harbouring,
or receipt of persons with or without the victims consent or
knowledge, within or across national borders."
(2) The means used which include "threat or use of force, or other
forms of coercion, abduction, fraud, deception, abuse of power or
of position, taking advantage of the vulnerability of the person, or,
the giving or receiving of payments or benefits to achieve the
consent of a person having control over another; and
(3) The purpose of trafficking is exploitation which includes
"exploitation or the prostitution of others or other forms of sexual
exploitation, forced labor or services, slavery, servitude or the
removal or sale of organs."63

On January 28, 2013,Republic Act No. 1036464 was approved,

otherwise known as the "Expanded Anti-Trafficking in Persons Act
of 2012." Section 3(a) of Republic Act No. 9208 was amended by
Republic Act No. 10364 as follows:
SEC. 3. Section 3 of Republic Act No. 9208 is hereby amended to
read as follows:
"SEC. 3. Definition of Terms. As used in this Act:
"(a) Trafficking in Persons refers to the recruitment, obtaining,
hiring, providing, offering, transportation, transfer, maintaining,
harboring, or receipt of persons with or without the victims
consent or knowledge, within or across national borders by
means of threat, or use of force, or other forms of coercion,
abduction, fraud, deception, abuse of power or of position, taking
advantage of the vulnerability of the person, or, the giving or
receiving of payments or benefits to achieve the consent of a
person having control over another person for the purpose of
exploitation which includes at a minimum, the exploitation or the
prostitution of others or other forms of sexual exploitation, forced
labor or services, slavery, servitude or the removal or sale of
organs.
"The recruitment, transportation, transfer, harboring, adoption or
receipt of a child for the purpose of exploitation or when the
adoption is induced by any form of consideration for exploitative
purposes shall also be considered as trafficking in persons even
if it does not involve any of the means set forth in the preceding
paragraph. (Emphasis supplied)
Under Republic Act No. 10364, the elements of trafficking in
persons have been expanded to include the following acts:
(1) The act of "recruitment, obtaining, hiring, providing, offering,
transportation, transfer, maintaining, harboring, or receipt of
persons with or without the victims consent or knowledge, within
or across national borders;"
(2) The means used include "by means of threat, or use of force,
or other forms of coercion, abduction, fraud, deception, abuse of
power or of position, taking advantage of the vulnerability of the
person, or, the giving or receiving of payments or benefits to
achieve the consent of a person having control over another
person"
(3) The purpose of trafficking includes "the exploitation or the
prostitution of others or other forms of sexual exploitation, forced
labor or services, slavery, servitude or the removal or sale of
organs" (Emphasis supplied)
The Court of Appeals found thatAAA and BBB were recruited by
accused when their services were peddled to the police who
acted as decoys.65 AAA was a child at the time that accused
peddled her services.66 AAA also stated that she agreed to work
as a prostitute because she needed money.67 Accused took

42

advantage of AAAs vulnerability as a child and as one who need

money, as proven by the testimonies of the witnesses.68

Republic Act No. 9208 further enumerates the instances when the
crime of trafficking in persons is qualified.

III.

SEC. 6. Qualified Trafficking in Persons. The following are

considered as qualified trafficking: a. When the trafficked person
is a child;

Knowledge or consent of the minor is not a defense under

Republic Act No. 9208.
Accused claims that AAA admitted engaging in prostitution even
before May 2, 2008. She concludes that AAA was predisposed to
having sex with "customers" for money.69 For liability under our
law, this argument is irrelevant. As defined under Section 3(a) of
Republic Act No. 9208, trafficking in persons can still becommitted
even if the victim gives consent.
SEC. 3. Definition of Terms. As used in this Act:
a. Trafficking in Persons - refers to the recruitment, transportation,
transfer or harboring, or receipt of persons with or without the
victim's consent or knowledge, within or across national borders
by means of threat or use of force, or other forms of coercion,
abduction, fraud, deception, abuse of power or of position, taking
advantage of the vulnerability of the persons, or, the giving or
receiving of payments or benefits to achieve the consent of a
person having control over another person for the purpose of
exploitation which includes ata minimum, the exploitation or the
prostitution of others or other forms of sexual exploitation, forced
labor or services, slavery, servitude or the removal or sale of
organs.

b. When the adoption is effected through Republic Act No. 8043,

otherwise known as the "Inter-Country Adoption Act of 1995" and
said adoption is for the purpose of prostitution, pornography,
sexual exploitation,forced labor, slavery, involuntary servitude or
debt bondage;
c. When the crime is committed by a syndicate, or in large scale.
Trafficking 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;
d. When the offender is an ascendant, parent, sibling, guardian or
a person who exercise authority over the trafficked person or
when the offense is committed by a public officer or employee;
e. When the trafficked person is recruited to engage in prostitution
with any member of the military or law enforcement agencies;
f. When the offender is a member of the military or law
enforcement agencies; and

The recruitment transportation, transfer, harboring or receipt of a

child for the purpose of exploitation shall also be considered as
"trafficking in persons" even if it does not involve any of the
means set forth in the preceding paragraph.70 (Emphasis
supplied)

g. When by reason or on occasion of the act of trafficking in

persons, the offended party dies, becomes insane, suffers
mutilation or is afflicted with Human Immunod eficiency Virus
(HIV) or the Acquired Immune Deficiency Syndrome (AIDS).
(Emphasis supplied)73

The victims consent is rendered meaningless due to the coercive,

abusive, or deceptive means employed by perpetrators of human
trafficking.71 Even without the use of coercive, abusive, or
deceptive means, a minors consent is not given outof his or her
own free will.

Section 3 (b) of Republic Act No. 9208 defines "child" as:

Section 4 of Republic Act No. 9208 enumerates the different acts

of trafficking in persons. Accused was charged under Section
4(a), which states:
SEC. 4. Acts of Trafficking in Persons. It shall be unlawful for
any person, natural or judicial, to commit any of the following acts.
a. To recruit, transport, transfer, harbor, provide, or receive a
person by any means, including those done under the pretext of
domestic or overseas employment or training or apprenticeship,
for the purpose of prostitution, pornography, sexual exploitation,
forced labor, slavery, involuntary servitude or debt bondage;72

SEC. 3. Definition of Terms. As used in this Act:

....
b. Child- refers to a person below eighteen (18) years of age or
one who is over eighteen (18) but isunable to fully take care of or
protect himself/herself from abuse, neglect, cruelty, exploitation,
or discrimination because of a physical or mental disability or
condition.74
Based on the definition of trafficking in persons and the
enumeration of acts of trafficking in persons, accused performed
all the elements in the commission of the offense when she
peddled AAA and BBB and offered their services to decoys PO1
Veloso and PO1 Luardo in exchange for money. The offense was
also qualified because the trafficked persons were minors.

43

Here, AAA testified as to how accused solicited her services for

the customers waiting at Queensland Motel. AAA also testified
that she was only 17 years old when accused peddled her. Her
certificate of live birth was presented as evidence to show that
she was born on January 27, 1991.

Accused argued that in our jurisprudence, courts usually apply the

objective test in determining the whether there was an entrapment
operation or an instigation.78 However, the use of the objective
test should not preclude courts from also applying the subjective
test. She pointed out that:

The prosecution was able to prove beyond reasonable doubt that

accused committed the offense of trafficking in persons, qualified
by the fact that one of the victims was a child. As held by the trial
court:

Applying the "subjective"test it is worth invoking that

accusedappellant procures income from being a laundry woman.
The prosecution had not shown any proof evidencing accusedappellants history in human trafficking or engagement in any
offense. She is not even familiar to the team who had has [sic]
been apprehending human traffickers for quite some
time.79 (Citations omitted)

[T]he act of "sexual intercourse" need not have been

consummated for the mere "transaction" i.e. that solicitation for
sex and the handing over of the "bust money" of Php.1,000.00
already consummated the said act.75
IV.
Validity of the entrapment operation
In People v. Doria,76 this court discussed the objective test and
the subjective test to determine whether there was a valid
entrapment operation:
. . . American federal courts and a majority of state courts use the
"subjective" or "origin of intent" test laid down in Sorrells v. United
States to determine whether entrapment actually occurred. The
focus of the inquiry is on the accused's predisposition to commit
the offense charged, his state of mind and inclination before his
initial exposure to government agents. All relevant facts such as
the accused's mental and character traits, his past offenses,
activities, his eagerness in committing the crime, his reputation,
etc., are considered to assess his state of mind before the crime.
The predisposition test emphasizes the accused's propensity to
commit the offense rather than the officer's misconduct and
reflects an attempt to draw a line between a "trap for the unwary
innocent and the trap for the unwary criminal." If the accused was
found to have been ready and willing to commit the offense at any
favorable opportunity, the entrapment defense will fail even if a
police agent usedan unduly persuasive inducement.
Some states, however, have adopted the "objective" test. . . .
Here, the court considers the nature of the police activity involved
and the propriety of police conduct. The inquiry is focused on the
inducements used by government agents, on police conduct, not
on the accused and his predisposition to commit the crime.For the
goal of the defense is to deter unlawful police conduct. The test of
entrapment is whether the conduct of the law enforcement agent
was likely to induce a normally law-abiding person, other than one
who is ready and willing, to commit the offense; for purposes of
this test, it is presumed that a law-abiding person would normally
resist the temptation to commit a crime that is presented by the
simple opportunity to act unlawfully. (Emphasis supplied, citations
omitted)77

Accused further argued that the police should have conducted a

prior surveillance before the entrapment operation.
Time and again, this court has discussed the difference between
entrapment and instigation. In Chang v. People,80 this court
explained that:
There is entrapment when law officers employ ruses and
schemes to ensure the apprehension of the criminal while in the
actual commission of the crime. There is instigation when the
accused is induced to commit the crime. The difference in the
nature of the two lies in the origin of the criminal intent. In
entrapment, the mens reaoriginates from the mind of the criminal.
The idea and the resolve to commit the crime comes from him. In
instigation, the law officer conceives the commission of the crime
and suggests to the accused who adopts the idea and carries it
into execution.81
Accused contends that using the subjective test, she was clearly
instigated by the police to commit the offense. She denied being a
pimp and claimed that she earned her living as a laundrywoman.
On this argument, we agree with the finding of the Court of
Appeals:
[I]t was the accused-appellant who commenced the transaction
with PO1 Luardo and PO1 Veloso by calling their attention on
whether they wanted girls for that evening, and when the officers
responded, it was the accused-appellant who told them to wait
while she would fetch the girls for their perusal.82
This shows that accused was predisposed to commit the offense
because she initiated the transaction. As testified by PO1 Veloso
and PO1 Luardo, accused called out their attention by saying
"Chicks mo dong?" If accused had no predisposition to commit
the offense, then she most likely would not have asked PO1
Veloso and PO1 Luardo if they wanted girls.
The entrapment would still be valid using the objective test. The
police merely proceeded to D. Jakosalem Street in Barangay
Kamagayan. It was accused who asked them whether they

44

wanted girls. There was no illicit inducement on the part of the

police for the accused to commit the crime.
When accused was arrested, she was informed of her
constitutional rights.83 The marked money retrieved from her was
recorded in the police blotter prior to the entrapment operation
and was presented in court as evidence.84
On accuseds alibi thatshe was merely out to buy her supper that
night, the Court of Appeals noted that accused never presented
Gingging in court. Thus, her alibi was unsubstantiated and cannot
be given credence.85
With regard to the lack of prior surveillance, prior surveillance is
not a condition for an entrapment operations validity.86 In People
v. Padua87 this court underscored the value of flexibility in police
operations:
A prior surveillance is not a prerequisite for the validity of an
entrapment or buy-bust operation, the conduct of which has no
rigid or textbook method. Flexibility is a trait of good police work.
However the police carry out its entrapment operations, for as
long as the rights of the accused have not been violated in the
process, the courts will not pass on the wisdom thereof. The
police officers may decide that time is of the essence and
dispense with the need for prior surveillance.88 (Citations omitted)
This flexibility is even more important in cases involving trafficking
of persons. The urgency of rescuing the victims may at times
require immediate but deliberate action on the part of the law
enforcers.
V.
Imposition of fine and award of damages
The Court of Appeals properly imposed the amount of
2,000,000.00. Section 10 (b) of Republic Act No. 9208 provides
that:
SEC. 10. Penalties and Sanctions. The following penalties and
sanctions are hereby established for the offenses enumerated in
this Act:
....
c. Any person found guilty of qualified trafficking under Section 6
shall suffer the penalty of life imprisonment and a fine of not less
than Two million pesos (P2,000,000.00) but not more than Five
million pesos (P5,000,000.00);
However, we modify by raising the award of moral damages
from P150,000.0089 to P500,000.00. We also award exemplary
damages in the amount of P100,000.00. These amounts are in
accordance with the ruling in People v. Lalli90 where this court
held that:

The payment of P500,000 as moral damages and P100,000 as

exemplary damages for the crime of Trafficking in Persons as a
Prostitute finds basis in Article 2219 of the Civil Code, which
states:
Art. 2219. Moral damages may be recovered in the following and
analogous cases:
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in Article 309;
(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30,
32, 34, and 35.
....
The criminal case of Trafficking in Persons as a Prostitute is an
analogous case to the crimes of seduction, abduction, rape, or
other lascivious acts. In fact, it is worse. To be trafficked as a
prostitute without ones consent and to be sexually violated four to
five times a day by different strangers is horrendous and
atrocious. There is no doubt that Lolita experienced physical
suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, and social humiliation
when she was trafficked as a prostitute in Malaysia. Since the
crime of Trafficking in Persons was aggravated, being committed
by a syndicate, the award of exemplary damages is likewise
justified.91
Human trafficking indicts the society that tolerates the kind of
poverty and its accompanying desperation that compels our
women to endure indignities. It reflects the weaknesses of that
society even as it convicts those who deviantly thrive in such
hopelessness. We should continue to strive for the best of our
world, where our choices of human intimacies are real choices,
and not the last resort taken just to survive. Human intimacies
enhance our best and closest relationships. It serves as a
foundation for two human beings to face lifes joys and challenges
while continually growing together with many shared experiences.
The quality of our human relationships defines the world that we
create also for others.

45

Regardless of the willingness of AAA and BBB, therefore, to be

trafficked, we affirm the text and spirit of our laws. Minors should
spend their adolescence moulding their character in environments
free of the vilest motives and the worse of other human beings.
The evidence and the law compel us to affirm the conviction of
accused in this case.
But this is not all that we have done. By fulfilling our duties, we
also express the hope that our people and our government unite
against everything inhuman. We contribute to a commitment to
finally stamp out slavery and human trafficking.
There are more AAA's and BBBs out there. They, too, deserve to
be rescued. They, too, need to be shown that in spite of what their
lives have been, there is still much good in our world.
WHEREFORE, premises considered, we AFFIRM the decision of
the Court of Appeals dated June 27, 2013, finding accused
Shirley A. Casio guilty beyond reasonable doubt of violating
Section 4(a), qualified by Section 6(a) of Republic Act No. 9208,
and sentencing her to suffer the penalty of life imprisonment and
a fine ofP2,000,000.00, with the MODIFICATION that accusedappellant shall not be eligible for parole under Act No. 4103
(Indeterminate Sentence Law) in accordance with Section 3 of
Republic Act No. 9346.92
The award of damages is likewise MODIFIED as follows:
Accused is ordered to pay each of the private complainants:
(1) P500,000.00 as moral damages; and
(2) P100,000.00 as exemplary damages.
SO ORDERED.
G.R. No. 84850 June 29, 1989
RICARDO A. LLAMADO, petitioner,
vs.
HONORABLE COURT OF APPEALS and LEON GAW,
respondents.
Ambrosio Padilla, Mempin & Reyes Law Offices for
petitioner.
FELICIANO, J.:
Petitioner Ricardo A. Llamado was Treasurer of Pan Asia Finance
Corporation. Together with Jacinto N. Pascual, Sr., President of
the same corporation, petitioner Llamado was prosecuted for
violation of Batas Pambansa Blg. 22 in Criminal Case No. 8538653, Regional Trial Court of Manila, Branch 49. The two (2) had
co-signed a postdated check payable to private respondent Leon
Gaw in the amount of P186,500.00, which check was dishonored
for lack of sufficient funds.

In a decision dated 10 March 1987, the trial court convicted the

petitioner alone, since jurisdiction over the person of Pascual,
who had thoughtfully fled the country, had not been obtained.
Petitioner was sentenced to imprisonment for a period of one (1)
year of prision correccional and to pay a fine of P 200,000.00 with
subsidiary imprisonment in case of insolvency. Petitioner was also
required to reimburse respondent Gaw the amount of
P186,500.00 plus the cost of suit.
On 20 March 1987, after the decision of the trial court was read to
him, petitioner through counsel orally manifested that he was
taking an appeal. Having been so notified, the trial court on the
same day ordered the forwarding of the records of the case to the
Court of Appeals. On 9 July 1987, petitioner through his counsel
received from the Court of Appeals a notice to file his Appellant's
Brief within thirty (30) days. Petitioner managed to secure several
extensions of time within which to file his brief, the last extension
expiring on 18 November 1987. 1
Petitioner Llamado, even while his Appellant's Brief was being
finalized by his then counsel of record, sought advice from
another counselor. On 30 November 1987, petitioner, with the
assistance of his new counsel, filed in the Regional Trial Court a
Petition for Probation invoking Presidential Decree No. 968, as
amended. The Petition was not, however, accepted by the lower
court, since the records of the case had already been forwarded
to the Court of Appeals.
Petitioner then filed with the Court of Appeals Manifestation and
Petition for Probation" dated 16 November 1987, enclosing a
copy of the Petition for Probation that he had submitted to the trial
court. Petitioner asked the Court of Appeals to grant his Petition
for Probation or, in the alternative, to remand the Petition back to
the trial court, together with the records of the criminal case, for
consideration and approval under P.D. No. 968, as amended. At
the same time, petitioner prayed that the running of the period for
the filing of his Appellant's Brief be held in abeyance until after the
Court of Appeals shall have acted on his Petition for Probation.
In a "Manifestation and Motion" dated 3 March 1988 and filed with
the Court of Appeals, petitioner formally withdrew his appeal
conditioned, however, on the approval of his Petition for
Probation. 2
Complying with a Resolution of the Court of Appeals, the Office of
the Solicitor General filed a Comment stating that it had no
objection to petitioner Llamado's application for probation. Private
respondent-complainant, upon the other hand, sought and
obtained leave to file a Comment on petitioner Llamado's
application for probation, to which Comment, petitioner filed a
Reply. Private respondent then filed his "Comment" on the Office
of the Solicitor General's Comment of 18 March 1988.
In a Resolution dated 17 June 1988, the Court of Appeals,
through Mr. Justice Magsino, denied the Petition for Probation. A

46

dissenting opinion was filed by Mr. Justice Bellosillo while Mr.

Justice Santiago submitted a concurring opinion. Petitioner
moved for reconsideration which Motion was denied by the Court
of Appeals on 23 August 1988, with another, briefer, dissenting
opinion from Mr. Justice Bellosillo.
Petitioner now asks this Court to review and reverse the opinion
of the majority in the Court of Appeals and, in effect, to accept and
adopt the dissenting opinion as its own.
The issue to be resolved here is whether or not petitioner's
application for probation which was filed after a notice of appeal
had been filed with the trial court, after the records of the case
had been forwarded to the Court of Appeals and the Court of
Appeals had issued the notice to file Appellant's Brief, after
several extensions of time to file Appellant's Brief had been
sought from and granted by the Court of Appeals but before
actual filing of such brief, is barred under P.D. No. 968, as
amended.
P.D. No. 968, known as the Probation Law of 1976, was
promulgated on 24 July 1976. Section 4 of this statute provided
as follows:
Sec. 4. Grant of Probation. Subject to the provisions of this
Decree, the court may, after it shall have convicted and
sentenced a defendant and upon application at any time of said
defendant, suspend the execution of said sentence and place the
defendant on probation for such period and upon such terms and
conditions as it may deem best.
Probation may be granted whether the sentence imposes a term
of imprisonment or a fine only. An application for probation shall
be filed with the trial court, with notice to the appellate court if an
appeal has been taken from the sentence of conviction. The filing
of the application shall be deemeda waiver of the right to appeal,
or the automatic withdrawal of a pending appeal.
An order granting or denying probation shall not be appealable.
(Emphasis supplied)
It will be noted that under Section 4 of P.D. No. 968, the trial court
could grant an application for probation "at any time" "after it shall
have convicted and sentenced a defendant" and certainly after
"an appeal has been takenfrom the sentence of conviction." Thus,
the filing of the application for probation was "deemed [to
constitute] automatic withdrawal of a pending appeal."
On 1 December 1977, Section 4 of P.D. No. 968 was amended by
P.D. No. 1257 so as to read as follows:
Sec. 4. Grant of Probation. Subject to the provisions of this
Decree, the court may, senteafter it shall have convicted and
sentenced a defendant but before he begins to serve his
sentence and upon his application, suspend the execution of said

sentence and place the defendant on probation for such period

and upon such terms and conditions as it may deem best.
The prosecuting officer concerned shall be notified by the court of
the filing of the application for probation and he may submit his
comment on such application within ten days from receipt of the
notification.
Probation may be granted whether the sentence imposes a term
of imprisonment or a fine with subsidiary imprisonment in case of
insolvency. An application for probation shall be filed with the trial
court, with notice to the appellate court if an appeal has been
taken from the sentence of conviction. The filing of the application
shall be deemed a waiver of the right to appeal, or the automatic
withdrawal of a pending appeal. In the latter case, however, if the
application is filed on or after the date of the judgment of the
appellate court, said application shall be acted upon by the trial
court on the basis of the judgment of the appellate court.
(Emphasis supplied)
Examination of Section 4, after its amendment by P.D. No. 1257,
reveals that it had established a prolonged but definite period
during which an application for probation may be granted by the
trial court. That period was: 'After [the trial court] shall have
convicted and sentenced a defendant but before he begins to
serve his sentence." Clearly, the cut-off time-commencement of
service of sentence-takes place not only after an appeal has
beentaken from the sentence of conviction, but even after
judgement has been rendered by the appellate court andafter
judgment has become final. Indeed, in this last situation, Section
4, as amended by P.D. No. 1257 provides that "the application [for
probation] shall be acted upon by the trial court on the basis of
the judgment of the appellate court"; for the appellate court might
have increased or reduced the original penalty imposed by the
trial court. It would seem beyond dispute then that had the
present case arisen while Section 4 of the statute as amended by
P.D. No. 1257 was still in effect, petitioner Llamado's application
for probation would have had to be granted. Mr. Llamado's
application for probation was filed well before the cut-off time
established by Section 4 as then amended by P.D. No. 1257.
On 5 October 1985, however, Section 4 of the Probation Law of
1976 was once again amended. This time by P.D. No. 1990. As
so amended and in its present form, Section 4 reads as follows:
Sec. 4. Grant of Probation. Subject to the provisions of this
Decree, the trial court may, after it shall have convicted and
sentenced a defendant, and upon application by said
defendant within the period for perfecting an appeal, suspend the
execution of the sentence and place the defendant on probation
for such period and upon such terms and conditions as it may
deem best; Provided, Thatno application for probation shall be
entertained or granted if the defendant has perfected an appeal
from the judgment of conviction.

47

Probation may be granted whether the sentence imposes a term

of imprisonment or a fine only An application for probation shall be
filed with the trial court. The filing of the application shall be
deemed a waiver of the right to appeal.
An order granting or denying probation shall not be appealable.
(Emphasis supplied)
In sharp contrast with Section 4 as amended by PD No. 1257, in
its present form, Section 4 establishes a much narrower period
during which an application for probation may be filed with the trial
court: "after [the trial court] shall have convicted and sentenced a
defendant and within the period for perfecting an appeal ."
As if to provide emphasis, a new proviso was appended to the
first paragraph of Section 4 that expressly prohibits the grant of an
application for probation "if the defendant has perfected an
appeal from the judgment of conviction." It is worthy of note too
that Section 4 in its present form has dropped the phrase which
said that the filing of an application for probation means "the
automatic withdrawal of a pending appeal". The deletion is quite
logical since an application for probation can no longer be filed
once an appeal is perfected; there can, therefore, be
nopending appeal that would have to be withdrawn.
In applying Section 4 in the form it exists today (and at the time
petitioner Llamado was convicted by the trial court), to the instant
case, we must then inquire whether petitioner Llamado had
submitted his application for probation "within the period for
perfecting an appeal." Put a little differently, the question is
whether by the time petitioner Llamado's application was filed, he
had already "perfected an appeal" from the judgment of conviction
of the Regional Trial Court of Manila.
The period for perfecting an appeal from a judgment rendered by
the Regional Trial Court, under Section 39 of Batas Pambansa
Blg. 129, Section 19 of the Interim Rules and Guidelines for the
Implementation of B.P. Blg. 129 and under the 1985 Rules on
Criminal Procedure, as amended, or more specifically Section 5
of Rule 122 of the Revised Rules of Court, is fifteen (15) days
from the promulgation or notice of the judgment appealed from. It
is also clear from Section 3 (a) of Rule 122 that such appeal is
taken or perfected by simply filing a notice of appeal with the
Regional Trial Court which rendered the judgment appealed from
and by serving a copy thereof upon the People of the Philippines.
As noted earlier, petitioner Llamado had manifested orally and in
open court his intention to appeal at the time of promulgation of
the judgment of conviction, a manifestation at least equivalent to a
written notice of appeal and treated as such by the Regional Trial
Court.
Petitioner urges, however, that the phrase "period for perfecting
an appeal" and the clause "if the defendant has perfected an
appeal from the judgment of conviction" found in Section 4 in its
current form, should not be interpreted to refer to Rule 122 of the
Revised Rules of Court; and that the "whereas" or preambulatory

clauses of P.D. No. 1990 did not specify a period of fifteen (15)
days for perfecting an appeal. 3 It is also urged that "the true
legislative intent of the amendment (P.D. No. 1990) should not
apply to petitioner who filed his Petition for probation at the
earliest opportunity then prevailing and withdrew his appeal." 4
Petitioner invokes the dissenting opinion rendered by Mr. Justice
Bellosillo in the Court of Appeals. Petitioner then asks us to have
recourse to "the cardinal rule in statutory construction" that "penal
laws [should] be liberallyconstrued in favor of the accused," and
to avoid "a too literal and strict application of the proviso in P.D.
No. 1990" which would "defeat the manifest purpose or policy for
which the [probation law] was enacted-."
We find ourselves unable to accept the eloquently stated
arguments of petitioner's counsel and the dissenting opinion. We
are unable to persuade ourselves that Section 4 as it now stands,
in authorizing the trial court to grant probation "upon application
by [the] defendant within the period for perfecting an appeal" and
in reiterating in the proviso that
no application for probation shall be entertained or granted if the
defendant has perfected an appealfrom the judgment of
conviction.
did not really mean to refer to the fifteen-day period established,
as indicated above, by B.P. Blg. 129, the Interim Rules and
Guidelines Implementing B.P. Blg. 129 and the 1985 Rules on
Criminal Procedure, but rather to some vague and undefined
time, i.e., "the earliest opportunity" to withdraw the defendant's
appeal. The whereasclauses invoked by petitioner did not, of
course, refer to the fifteen-day period. There was absolutely no
reason why they should have so referred to that period for the
operative words of Section 4 already do refer, in our view, to such
fifteen-day period. Whereas clauses do not form part of a statute,
strictly speaking; they are not part of the operative language of
the statute. 5 Nonetheless, whereas clauses may be helpful to the
extent they articulate thegeneral purpose or reason underlying a
new enactment, in the present case, an enactment which
drastically but clearly changed the substantive content of Section
4 existing before the promulgation of P.D. No.
1990. Whereas clauses, however, cannot control the specific
terms of the statute; in the instant case, the whereas clauses of
P.D. No. 1990 do notpurport to control or modify the terms of
Section 4 as amended. Upon the other hand, the term "period for
perfecting an appeal" used in Section 4 may be seen to furnish
specification for the loose language "first opportunity" employed in
the fourth whereas clause. "Perfection of an appeal" is, of course,
a term of art but it is a term of art widely understood by lawyers
and judges and Section 4 of the Probation Law addresses itself
essentially to judges and lawyers. "Perfecting an appeal" has no
sensible meaning apart from the meaning given to those words in
our procedural law and so the law-making agency could only have
intended to refer to the meaning of those words in the context of
procedural law.

48

Turning to petitioner's invocation of "liberal interpretation" of penal

statutes, we note at the outset that the Probation Law is not a
penal statute. We, however, understand petitioner's argument to
be really that any statutory language that appears to favor the
accused in a criminal case should be given a "liberal
interpretation." Courts, however, have no authority to invoke
"liberal interpretation' or "the spirit of the law" where the words of
the statute themselves, and as illuminated by the history of that
statute, leave no room for doubt or interpretation. We do not
believe that "the spirit of law" may legitimately be invoked to set at
naught words which have a clear and definite meaning imparted
to them by our procedural law. The "true legislative intent" must
obviously be given effect by judges and all others who are
charged with the application and implementation of a statute. It is
absolutely essential to bear in mind, however, that the spirit of the
law and the intent that is to be given effect are to be derived from
the words actually used by the law-maker, and not from some
external, mystical or metajuridical source independent of and
transcending the words of the legislature.
The Court is not here to be understood as giving a "strict
interpretation rather than a "liberal" one to Section 4 of the
Probation Law of 1976 as amended by P.D. No. 1990. "Strict" and
"liberal" are adjectives which too frequently impede a disciplined
and principled search for the meaning which the law-making
authority projected when it promulgated the language which we
must apply. That meaning is clearly visible in the text of Section 4,
as plain and unmistakable as the nose on a man's face. The
Court is simply reading Section 4 as it is in fact written. There is
no need for the involved process of construction that petitioner
invites us to engage in, a process made necessary only because
petitioner rejects the conclusion or meaning which shines through
the words of the statute. The first duty of a judge is to take and
apply a statute as he finds it, not as he would like it to be.
Otherwise, as this Court in Yangco v. Court of First Instance of
Manila warned, confusion and uncertainty in application will surely
follow, making, we might add, stability and continuity in the law
much more difficult to achieve:
. . . [w]here language is plain, subtle refinements which tinge
words so as to give them the color of a particular judicial theory
are not only unnecessary but decidedly harmful. That which has
caused so much confusion in the law, which has made it so
difficult for the public to understand and know what the law is with
respect to a given matter, is in considerable measure the
unwarranted interference by judicial tribunals with the English
language as found in statutes and contracts, cutting the words
here and inserting them there, making them fit personal ideas of
what the legislature ought to have doneor what parties should
have agreed upon, giving them meanings which they do not
ordinarily havecutting, trimming, fitting, changing and coloring until
lawyers themselves are unable to advise their clients as to the
meaning of a given statute or contract until it has been submitted
to some court for its interpretation and construction. 6

The point in this warning may be expected to become sharper as

our people's grasp of English is steadily attenuated.
There is another and more fundamental reason why a judge must
read a statute as the legislative authority wrote it, not as he would
prefer it to have been written. The words to be given meaning
whether they be found in the Constitution or in a statute, define
and therefore limit the authority and discretion of the judges who
must apply those words. If judges may, under cover of seeking
the "true spirit" and "real intent" of the law, disregard the words in
fact used by the law-giver, the judges will effectively escape the
constitutional and statutory limitations on their authority and
discretion. Once a judge goes beyond the clear and ordinary
import of the words of the legislative authority, he is essentially on
uncharted seas. In a polity like ours which enshrines the
fundamental notion of limiting power through the separation and
distribution of powers, judges have to be particularly careful lest
they substitute their conceptions or preferences of policy for that
actually projected by the legislative agency. Where a judge
believes passionately that he knows what the legislative agency
should have said on the particular matter dealt with by a statute, it
is easy enough for him to reach the conclusion that therefore that
was what the law-making authority was really saying or trying to
say, if somewhat ineptly As Mr. Justice Frankfurter explained:
Even within their area of choice the courts are not at large. They
are confined by the nature and scope of the judicial function in its
particular exercise in the field of interpretation. They are under
the constraints imposed by the judicial function in our democratic
society. As a matter of verbal recognition certainly, no one will
gainsay that the function in construing a statute is to ascertain the
meaning of words used by the legislature. To go beyond it is to
usurp a power which our democracy has lodged in its elected
legislature. The great judges have constantly admonished their
brethren of the need for discipline in observing the limitations A
judge must not rewrite a statute, neither to enlarge nor to contract
it. Whatever temptations the statesmanship of policy-making
might wisely suggest, construction must eschew interpolation and
evisceration He must not read in by way of creation. He must not
read out except to avoid patent nonsense of internal
contradictions. ... 7
Petitioner finally argues that since under Section 4 of Probation
Law as amended has vested in the trial court the authority to
grant the application for probation, the Court of Appeals had no
jurisdiction to entertain the same and should have (as he had
prayed in the alternative) remanded instead the records to the
lower court. Once more, we are not persuaded. The trial court lost
jurisdiction over the case when petitioner perfected his appeal.
The Court of Appeals was not, therefore, in a position to remand
the case except for execution of judgment. Moreover, having
invoked the jurisdiction of the Court of Appeals, petitioner is not at
liberty casually to attack that jurisdiction when exercised
adversely to him. In any case, the argument is mooted by the
conclusion that we have reached, that is, that petitioner's right to

49

apply for probation was lost when he perfected his appeal from
the judgment of conviction.

[6]

WHEREFORE, the Decision of the Court of Appeals in CAGR No.

04678 is hereby AFFIRMED. No pronouncement as to costs.

The Prosecution, through the undersigned Public Prosecutor,

charges Edgar Allan Ubalde y Velchez a.k.a.
Allan and Michael Paduay Tordel a.k.a. Mike, with the crime of
violation of Sec. 5, Art. II, Republic Act No. 9165 in relation to R.A.
[No.] 8369, Sec. 5 par. (a) and (i), committed as follows:

SO ORDERED.
MICHAEL PADUA,
Petitioner,

- versus -

otherwise known as the Comprehensive Dangerous Drugs Act

of 2002, for selling dangerous drugs.[7] The Information reads:

On or about June 6, 2003, in Pasig City, and within the jurisdiction

of this Honorable Court, the accused, Edgar Allan Ubalde y
Velchez and Michael Padua y Tordel, a minor, seventeen (17)
years old, conspiring and confederating together and both of them
mutually helping and aiding one another, not being lawfully
authorized to sell any dangerous drug, did then and there willfully,
unlawfully and feloniously sell, deliver and give away to PO1
Roland A. Panis, a police poseur-buyer, one (1) folded newsprint
containing 4.86 grams of dried marijuana fruiting tops, which was
found positive to the tests for marijuana, a dangerous drug, in
violation of the said law.
Contrary to law.[8]
When arraigned on October 13, 2003, Padua, assisted by his
counsel de oficio, entered a plea of not guilty.[9]

PEOPLE OF THE PHILIPPINES,

Respondent.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
QUISUMBING, J.:
This petition for review assails the Decision[1] dated April 19,
2005 and Resolution[2] dated June 14, 2005, of the Court of
Appeals in CA-G.R. SP No. 86977 which had respectively
dismissed Michael Paduas petition for certiorari and denied his
motion for reconsideration. Paduas petition for certiorari before
the Court of Appeals assailed the Orders dated May 11,
2004[3] and July 28, 2004[4] of the Regional Trial Court (RTC),
Branch 168, Pasig City, which had denied his petition for
probation.
The facts, culled from the records, are as follows:
On June 16, 2003, petitioner Michael Padua and Edgar Allan
Ubalde were charged before the RTC, Branch 168, Pasig City of
violating Section 5,[5] Article II of Republic Act No. 9165,

During the pre-trial conference on February 2, 2004,

however, Paduas counsel manifested that his client was willing to
withdraw his plea of not guilty and enter a plea of guilty to avail of
the benefits granted to first-time offenders
under Section 70[10] of Rep. Act No.9165. The prosecutor
interposed no objection.[11] Thus, the RTC on the same date
issued an Order[12] stating that the former plea ofPadua of not
guilty was considered withdrawn. Padua was re-arraigned and
pleaded guilty. Hence, in a Decision[13] dated February 6, 2004,
the RTC found Padua guilty of the crime charged:
In view of the foregoing, the Court finds accused Michael Padua y
Tordel guilty of [v]iolation of Sec. 5 Art. II of R.A. No. 9165 in
relation to R.A. No. 8369 Sec. 5 par. (a) and (i) thereof, and
therefore, sentences him to suffer an indeterminate sentence of
six (6) years and one (1) day of Prision Mayor as minimum to
seventeen (17) years and four (4) months of reclusion temporal
as maximum and a fine of Five Hundred Thousand Pesos
(P500,000.00).
No subsidiary imprisonment, however, shall be imposed should
[the] accused fail to pay the fine pursuant to Art. 39 par. 3 of the
Revised Penal Code.
SO ORDERED.[14]
Padua subsequently filed a Petition for Probation[15] dated
February 10, 2004 alleging that he is a minor and a first-time
offender who desires to avail of the benefits of probation under
Presidential Decree No. 968[16] (P.D. No. 968), otherwise known

50

as The Probation Law of 1976 and Section 70 of Rep. Act No.

9165. He further alleged that he possesses all the qualifications
and none of the disqualifications under the said laws.

the Court, cannot avail of the privilege granted by the Probation

Law or Presidential Decree No. 968, as amended. (underlining
supplied)

The RTC in an Order[17] dated February 10, 2004 directed the

Probation Officer of Pasig City to conduct a Post-Sentence
Investigation and submit a report and recommendation within 60
days from receipt of the order. The City Prosecutor was also
directed to submit his comment on the said petition within five
days from receipt of the order.

WHEREFORE, premises considered, the Petition for Probation

filed by Michael Padua y Tord[e]l should be, as it is
hereby DENIED.

On April 6, 2004, Chief Probation and Parole Officer Josefina J.

Pasana submitted a Post-Sentence Investigation Report to the
RTC recommending that Padua be placed on probation.[18]
However, on May 11, 2004, public respondent Pairing Judge
Agnes Reyes-Carpio issued an Order denying the Petition for
Probation on the ground that under Section 24[19] of Rep. Act No.
9165, any person convicted of drug trafficking cannot avail of the
privilege granted by the Probation Law. The court ruled thus:
Before this Court now is the Post-Sentence Investigation Report
(PSIR) on minor Michael Padua y Tordel prepared by Senior
Parole and Probation Officer Teodoro Villaverde and submitted by
the Chief of the Pasig City Parole and Probation Office, Josefina
J. Pasana.
In the aforesaid PSIR, Senior PPO Teodoro Villaverde
recommended that minor Michael Padua y Tordel be placed on
probation, anchoring his recommendation on Articles 189 and 192
of P.D. 603, otherwise known as the Child and Welfare Code, as
amended, which deal with the suspension of sentence and
commitment of youthful offender. Such articles, therefore, do not
find application in this case, the matter before the Court being an
application for probation by minor Michael Padua y Tordel and not
the suspension of his sentence.
On the other hand, Section 70 is under Article VIII of R.A. 9165
which deals with the Program for Treatment and Rehabilitation of
Drug Dependents. Sections 54 to 76, all under Article VIII of R.A.
9165 specifically refer to violations of either Section 15 or Section
11.Nowhere in Article VIII was [v]iolation of Section 5 ever
mentioned.
More importantly, while the provisions of R.A. 9165, particularly
Section 70 thereof deals with Probation or Community Service for
First- Time Minor Offender in Lieu of Imprisonment, the Court is of
the view and so holds that minor Michael Padua y Tordel who was
charged and convicted of violating Section 5, Article II, R.A. 9165,
cannot avail of probation under said section in view of the
provision of Section 24 which is hereunder quoted:
Sec. 24. Non-Applicability of the Probation Law for Drug
Traffickers and Pushers. Any person convicted for drug trafficking
or pushing under this Act, regardless of the penalty imposed by

SO ORDERED.[20]
Padua filed a motion for reconsideration of the order but the same
was denied on July 28, 2004. He filed a petition for certiorari
under Rule 65 with the Court of Appeals assailing the order, but
the Court of Appeals, in a Decision dated April 19, 2005,
dismissed his petition. The dispositive portion of the decision
reads:
WHEREFORE, in view of the foregoing, the petition is
hereby DENIED for lack of merit and ordered DISMISSED.
SO ORDERED.[21]
Padua filed a motion for reconsideration of the Court of Appeals
decision but it was denied. Hence, this petition where he raises
the following issues:
I.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN
AFFIRMING THE DENIAL OF THE PETITION FOR PROBATION
WHICH DEPRIVED PETITIONERS RIGHT AS A MINOR UNDER
ADMINISTRATIVE ORDER NO. [02-1-18-SC] OTHERWISE
KNOWN AS [THE] RULE ON JUVENILES IN CONFLICT WITH
THE LAW.
II.
WHETHER OR NOT [THE] ACCUSED[S] RIGHT [TO BE
RELEASED UNDER RECOGNIZANCE] HAS BEEN VIOLATED
OR DEPRIVED IN THE LIGHT OF R.A. 9344 OTHERWISE
KNOWN AS AN ACT ESTABLISHING A COMPREHENSIVE
JUVENILE JUSTICE AND WELFARE SYSTEM, CREATING THE
JUVENILE JUSTICE AND WELFARE COUNCIL UNDER
DEPARTMENT OF JUSTICE APPROPRIATING FUNDS
THEREFOR AND OTHER PURPOSES.[22]
The Office of the Solicitor General (OSG), representing public
respondent, opted to adopt its Comment[23] as its Memorandum.In
its Comment, the OSG countered that
I.
THE TRIAL COURT AND THE COURT OF APPEALS HAVE
LEGAL BASIS IN APPLYING SECTION 24, ARTICLE II OF R.A.
9165 INSTEAD OF SECTION 70, ARTICLE VIII OF THE SAME
LAW.

51

II.
SECTION 32 OF A.M. NO. 02-1-18-SC OTHERWISE KNOWN AS
THE RULE ON JUVENILES IN CONFLICT WITH THE LAW HAS
NO APPLICATION TO THE INSTANT CASE.[24]
Simply, the issues are: (1) Did the Court of Appeals err in
dismissing Paduas petition for certiorari assailing the trial courts
order denying his petition for probation? (2) Was Paduas right
under Rep. Act No. 9344,[25] the Juvenile Justice and Welfare Act
of 2006, violated? and (3) Does Section 32[26] of A.M. No. 02-118-SC otherwise known as the Rule on Juveniles in Conflict with
the Law have application in this case?
As to the first issue, we rule that the Court of Appeals did not err
in dismissing Paduas petition for certiorari.
For certiorari to prosper, the following requisites must concur: (1)
the writ is directed against a tribunal, a board or any officer
exercising judicial or quasi-judicial functions; (2) such tribunal,
board or officer has acted without or in excess of jurisdiction, or
with grave abuse of discretion amounting to lack or excess of
jurisdiction; and (3) there is no appeal or any plain, speedy and
adequate remedy in the ordinary course of law.[27]
Without jurisdiction means that the court acted with absolute lack
of authority. There is excess of jurisdiction when the court
transcends its power or acts without any statutory authority. Grave
abuse of discretion implies such capricious and whimsical
exercise of judgment as to be equivalent to lack or excess of
jurisdiction. In other words, power is exercised in an arbitrary or
despotic manner by reason of passion, prejudice, or personal
hostility, and such exercise is so patent or so gross as to amount
to an evasion of a positive duty or to a virtual refusal either to
perform the duty enjoined or to act at all in contemplation of law.
[28]

A review of the orders of the RTC denying Paduas petition for

probation shows that the RTC neither acted without jurisdiction
nor with grave abuse of discretion because it merely applied the
law and adhered to principles of statutory construction in
denying Paduas petition for probation.
Padua was charged and convicted for violation of Section 5,
Article II of Rep. Act No. 9165 for selling dangerous drugs. It is
clear under Section 24 of Rep. Act No. 9165 that any person
convicted of drug trafficking cannot avail of the privilege of
probation, to wit:
SEC. 24. Non-Applicability of the Probation Law for Drug
Traffickers and Pushers. Any person convicted for drug
trafficking or pushing under this Act, regardless of the
penalty imposed by the Court, cannot avail of the privilege
granted by the Probation Law or Presidential Decree No. 968,
as amended. (Emphasis supplied.)

The law is clear and leaves no room for interpretation. Any person
convicted for drug trafficking or pushing, regardless of the penalty
imposed, cannot avail of the privilege granted by the Probation
Law or P.D. No. 968. The elementary rule in statutory construction
is that when the words and phrases of the statute are clear and
unequivocal, their meaning must be determined from the
language employed and the statute must be taken to mean
exactly what it says.[29] If a statute is clear, plain and free from
ambiguity, it must be given its literal meaning and applied without
attempted interpretation. This is what is known as the plainmeaning rule or verba legis. It is expressed in the maxim, index
animi sermo, or speech is the index of intention.[30] Furthermore,
there is the maxim verba legis non est recedendum, or from the
words of a statute there should be no departure.[31]
Moreover, the Court of Appeals correctly pointed out that the
intention of the legislators in Section 24 of Rep. Act No. 9165 is to
provide stiffer and harsher punishment for those persons
convicted of drug trafficking or pushing while extending a
sympathetic and magnanimous hand in Section 70 to drug
dependents who are found guilty of violation of Sections
11[32] and 15[33] of the Act. The law considers the users and
possessors of illegal drugs as victims while the drug traffickers
and pushers as predators. Hence, while drug traffickers and
pushers, like Padua, are categorically disqualified from availing
the law on probation, youthful drug dependents, users and
possessors alike, are given the chance to mend their ways.[34] The
Court of Appeals also correctly stated that had it been the
intention of the legislators to exempt from the application of
Section 24 the drug traffickers and pushers who are minors and
first time offenders, the law could have easily declared so.[35]
The law indeed appears strict and harsh against drug traffickers
and drug pushers while protective of drug users. To illustrate, a
person arrested for using illegal or dangerous drugs is meted only
a penalty of six months rehabilitation in a government center, as
minimum, for the first offense under Section 15 of Rep. Act No.
9165, while a person charged and convicted of selling dangerous
drugs shall suffer life imprisonment to death and a fine ranging
from Five Hundred Thousand Pesos (P500,000.00) to Ten Million
Pesos (P10,000,000.00) under Section 5, Rep. Act No. 9165.
As for the second and third issues, Padua cannot argue that his
right under Rep. Act No. 9344, the Juvenile Justice and Welfare
Act of 2006 was violated. Nor can he argue that Section 32 of
A.M. No. 02-1-18-SC otherwise known as the Rule on Juveniles
in Conflict with the Law has application in this case. Section
68[36] of Rep. Act No. 9344 and Section 32 of A.M. No. 02-1-18SC both pertain to suspension of sentence and not probation.
Furthermore, suspension of sentence under Section 38[37] of Rep.
Act No. 9344 could no longer be retroactively applied for
petitioners benefit. Section 38 of Rep. Act No. 9344 provides that
once a child under 18 years of age is found guilty of the offense
charged, instead of pronouncing the judgment of conviction, the

52

court shall place the child in conflict with the law under suspended
sentence. Section 40[38] of Rep. Act No. 9344, however, provides
that once the child reaches 18 years of age, the court shall
determine whether to discharge the child, order execution of
sentence, or extend the suspended sentence for a certain
specified period or until the child reaches the maximum age of
21 years. Petitioner has already reached 21 years of age or over
and thus, could no longer be considered a child[39] for purposes of
applying Rep. Act 9344. Thus, the application of Sections 38 and
40 appears moot and academic as far as his case is concerned.
WHEREFORE, the petition is DENIED. The assailed Decision
dated April 19, 2005 and the Resolution dated June 14, 2005 of
the Court of Appeals are AFFIRMED.

Regional Trial Court (RTC) Judge Abednego O. Adre (Judge

Adre), former City Legal Officer Pedro G. Nalangan III
(Nalangan), Register of Deeds Asteria E. Cruzabra (Cruzabra),
Land Management Officer III of the Provincial Environment and
Natural Resources Office (PENRO) of South Cotabato Julio C.
Diaz (Diaz) and Regional Technical Director of the DENR for
Region XI Agapito Borinaga (Borinaga) (respondents).
The facts, as narrated by the Ombudsman, are as follows:
Presidential Proclamation No. 168 was issued by then President
Diosdado Macapagal on October 3, 1963 (Record, pp. 2324). The pertinent provision of which states that:

LUWALHATI R. ANTONINO,

do hereby withdraw from sale or settlement and reserve for

recreational and health resort site purposes, under the
administration of the municipality of General Santos, subject to
private rights, if any there be, a certain parcel of land of the public
domain situated in the said municipality and more particularly
described as follows:

Petitioner,

Mr-1160-D Municipal Reservation

SO ORDERED.

The Municipal Government of General Santos Magsaysay Park

- versus -

A parcel of land (as shown on plan Mr-1160-D) situated in the

barrio of Dadiangas, Municipality of General
HON. OMBUDSMAN ANIANO A. DESIERTO, ROSALITA T. NUEZ,
Santos, province of Cotabato. x x x containing an area of 52,678
AUGUSTUS L. MOMONGAN, JUDGE ABEDNEGO O. ADRE, PEDRO G. square meters.
NALANGAN, ASTERIA E. CRUZABRA, JULIO C. DIAZ and AGAPITO
BORINAGA,
On January 22, 1968, Republic Act No. 5412 (Record, pp. 25-26),
Respondents.

x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
Before this Court is a Petition for Certiorari[1] under Rule 65 of the
Rules of Civil Procedure filed by petitioner, former
Congresswoman Luwalhati R. Antonino (petitioner) of the First
Congressional District of South Cotabato which includes General
Santos City (city), assailing that portion of the Resolution[2] dated
January 20, 1999 of the Office of the Ombudsman (Ombudsman)
dismissing the case against private respondents, former city
Mayor Rosalita T. Nuez (Mayor Nuez), Department of
Environment and Natural Resources (DENR) Regional Executive
Director for Region XI Augustus L. Momongan (Momongan),

known as the Charter of the City of General Santos was enacted

creating the City of General Santos where it is provided that The
National Government hereby cedes to the City of General Santos
the ownership and possession to all lands of the public domain
within the city. Later, said Act was amended by Republic Act No.
6386 on August 16, 1971 (Record, pp. 27-28) wherein it read that
The disposition of all lands of the public domain within the city
shall be in accordance with the provisions of Commonwealth Act
Numbered One hundred forty-one, as amended: Provided, That
all incomes and receipts derived from such disposition shall
accrue exclusively to the city as provided in this Act.
On the other hand, the property subject of Presidential
Proclamation No. 168 was thereafter subdivided into three lots,
namely: Lot Y-1 with an area of 18,695 square meters, Lot X
containing 15,020 square meters and Lot Y-2 with 18,963 square
meters, or a total of 52,678 square meters which is still equivalent
to the original area.
However, on February 25, 1983, former President Ferdinand E.
Marcos issued Proclamation No. 2273 amending Proclamation
No. 168 (Record, pp. 29-31), which provides that:
do hereby exclude from the operation of Proclamation No. 168
dated October 3, 1963, which established the recreational and

53

health resort reservation situated in the Municipality of General

Santos, now General Santos City, Island of Mindanao, certain
portions of the land embraced therein and declare the same open
to disposition under the provisions of the Public Land Act, which
parcels of land are more particularly described as follows:
Lot Y-1, MR-1160-D
(Magsaysay Park)
A PARCEL OF LAND (Lot Y-1, MR-1160-D, Magsaysay Park)
situated in the Municipality of General Santos,
now GeneralSantos City, Island of Mindanao. x x x containing an
area of EIGHTEEN THOUSAND SIX HUNDRED NINETY-FIVE
(18,695) SQUARE METERS. x x x
Lot Y-2, MR-1160-D
(Magsaysay Park)
A PARCEL OF LAND (Lot Y-2, MR-1160-D, Magsaysay Park)
situated in the Municipality of General Santos,
now GeneralSantos City, Island of Mindanao. x x x containing an
area of EIGHTEEN THOUSAND NINE HUNDRED SIXTY-THREE
(18,963) SQUARE METERS. x x x
Thus, leaving only Lot X as that covered by Presidential
Proclamation No. 168 and is therefore reserved for recreational
and health resort site purposes.
As a result of such exclusion, the Heirs of Cabalo Kusop applied
for Free Patent with the District Land Office and consequently
Certificates of Title were issued sometime in 1983. In 1984, two
cases were filed by the local government
of General Santos City against the said Heirs of Kusop for
Declaration of Nullity of Titles and, on the other hand, the Heirs of
Kusop filed a case against the said local government for
Injunction and Damages. The said three cases were consolidated
before the Regional Trial Court of General Santos City, Branch
22, presided by respondent Judge Abednego Adre.
On May 23, 1991, the Sangguniang Panlungsod of General
Santos City passed Resolution No. 87, Series of 1991, entitled
Resolution Approving the Compromise Agreement to be entered
into by and between the City Government of General Santos
represented by the City Mayor and the Heirs of Cabalo Kusop, re:
Magsaysay Park (Record, pp. 1506-1507). Significant provisions
of the said Compromise Agreement (Record, pp. 33-39) state
that:
1. The subject matter of this agreement are Lots Y-1, MR-1160-D
and Y-2, MR-1160-D with combined area of THIRTY-SEVEN
THOUSAND SIX HUNDRED FIFTY-EIGHT (37,658) SQUARE
METERS, and from this the HEIRS AND BENEFICIARIES shall
receive a total net area of TWENTY THOUSAND (20,000)
SQUARE METERS and to the CITY shall pertain the remainder of

SEVENTEEN THOUSAND SIX HUNDRED FIFTY-EIGHT

(17,658) SQUARE METERS which if added to Lot X, MR-1160-D,
previously donated to the CITY as stated in par. 7 of the
WHEREAS clause, with an area of FIFTEEN THOUSAND AND
TWENTY (15,020) SQUARE METERS (located in between Lots
Y-1 and Y-2), the CITY shall retain a total area of THIRTY TWO
THOUSAND SIX HUNDRED SEVENTY-EIGHT (32,678)
SQUARE METERS.
Said Compromise Agreement was signed by respondent City
Mayor Rosalita Nuez, assisted by respondent Pepito Nalangan III,
and the heirs and beneficiaries of Cabalo Kusop.
As a consequence of the said Compromise Agreement,
respondent Judge Abednego Adre issued an Order (Record, pp.
40-52), covering the three pending cases, on May 6, 1992, the
dispositive portion of which states:
ACCORDINGLY, finding the foregoing Compromise Agreement in
conformity with Article 6 in correlation with Article 1306 of the Civil
Code of the Philippines, the same is hereby APPROVED and
ADOPTED as judgment in these cases. The parties are enjoined
to faithfully comply therewith.
A Writ of Execution was accordingly issued on November 28,
1995.
However, on July 22, 1997, acting upon the Motion for Exclusion
of an Extraneous Subject from the Coverage of the Judgment
thereof and the Motion for Issuance of Clarificatory Order
submitted by the Heirs of Cabalo Kusop and jointly by CENR
Officer and Regional Technical Director of DENR, respectively,
respondent Judge issued another Order [assailed RTC Order]
(Record, pp. 53-59) in the above-cited three cases, stating that:
ACCORDINGLY, based on all the foregoing facts, law and
jurisprudence, the motion for exclusion of Lot X, MR-1160-D
comprising an area of 15,020 SQUARE METERS is
GRANTED. The movants heirs of Kusop are, however, enjoined
to donate to the City of General Santosin keeping with the intent
and spirit of the compromise agreement.
On July 23, 1997, the following private respondents applied for
Miscellaneous Sales Patent over portions of Lot X, to be divided
as follows (refer to affidavits, Record, pp. 60-75):

Applicants

Area applied

1. Mad Guaybar

- 999 sq. m.;

54

2. Oliver Guaybar

3. Jonathan Guaybar

4. Alex Guaybar

5. Jack Guiwan

6. Nicolas Ynot

7. Carlito Flaviano III

8. Jolito Poralan

9. Miguela Cabi-ao

10. Jose Rommel Saludar

11. Joel Teves

- 999 sq.
Them.;following day, July 24, 1997, public respondent Cesar Jonillo,
as Deputy Land Management Inspector, recommended for the
approval of the survey authority requested by the above-named
private respondents for Lot X (Record, p. 418).
- 999 sq. m.;

Within the same day, the Survey Authority was issued to private
- 999 sq. m.;
respondents by public respondent CENR Officer Renato Rivera
(Record, p. 419). As a result of which, Lot X was subdivided into
16 lots (refer to subdivision plan, Record, p. 32).
- 999 sq. m.;
On August 2, 1997, respondent City Mayor Rosalita T. Nuez,
assisted by respondent City Legal Officer Pedro Nalangan III
issued 1stIndorsements (refer to application documents, Record,
- 999 sq.
pp.m.;
421-500) addressed to CENRO, DENR for portions of Lot X
applied by private respondents and stated therein that this office
interposes no objection to whatever legal proceedings your office
may
- 999 sq.
m.;pursue on application covering portions thereof after the
Regional Trial Court, General Santos City, Branch 22 excluded
Lot X, MR-1160-D from the coverage of the Compromise
Judgment dated May 6, 1992 per said courts order dated July 22,
- 999 sq.
m.;
1997.
Thereupon, public respondents Cesar Jonillo and City Assessor
Leonardo Dinopol, together with recommendation for approval
- 999 sq. m.;
from respondent Rivera, submitted an appraisal of lots X-1 to X16 stating therein the appraisal amount of P100.00 per square
meter and existing improvements of residential light house per lot
withm.;an appraised value ranging from P20,000.00
- 999 sq.
to P50,000.00 (refer to application papers, Record, pp. 421-500).
Subsequently, on August 4, 1997, respondent Cesar Jonillo
- 999 sq.
m.; a letter-report addressed to the Regional Executive
prepared

14. Martin Saycon

Director of DENR for each of the sixteen (16) applicants

recommending for the private sale of the subject lots to the
above-named
applicants-respondents, without public auction
- 999 sq.
m.;
(refer to sample letter-report of recommendation in favor of Rico
Altizo, Record, p. 77). Respondent CENR Officer, Renato Rivera,
also issued recommendation letters for each of the sixteen
- 999 sq.
m.;
applicants
addressed to the PENR Officer for the approval of the
appraisal of the subject lots and of the private sale (please refer to
sample recommendation letter in favor of Rico Altiz[o], Record, p.
78).
- 999 sq. m.;

15. Arsenio delos Reyes, Jr.

A notice of sale was issued by respondent Julio Diaz also on the

same date stating therein that on September 5, 1997 the subject
lot/s
be sold (Record, p. 79).
- 510 sq.
m.;will
and,

12. Rico Altizo

13. Johnny Medillo

16. Jose Bomez

On September 18, 1997, the following Certificates of Titles were

issued by the Register of Deeds of General Santos City,
- 524 sq.
m.
respondent
Asteria Cruzabra, which titles were also signed by
respondent Augustus Momongan, as DENR Regional Executive
Director, to wit:

55

Name of Owner

1. Mad Guaybar

OCT No.

15. Arsenio delos Reyes

P-6395-A

X-15

16. Jose Bomez

P-6394

X-16

P-6393-A

2. Oliver Guaybar

P-6392

3. Jonathan Guaybar

P-6389-A

4. Alex Guaybar

P-6393

5. Jack Guiwan

P-6399

6. Nicolas Ynot

P-6388-A

7. Carlito Flaviano III

P-6389

8. Jolito Poralan

P-6391

9. Miguela Cabi-ao

P-6392-A

10. Jose Rommel Saludar

P-6388

11. Joel Teves

P-6396

12. Rico Altizo

P-6395

13. Johnny Medillo

P-6390

14. Martin Saycon

P-6394-A

Sometime on September 24 and 25, 1997, except for lots X-6, X7, X-15 and X-16, the above-named registered owners sold their
lots, through their attorney-in-fact, respondent Atty. Nilo Flaviano,
to the AFP-Retirement and Separation Benefits System (AFPRSBS) in the amount of Two Million Nine Hundred Ninety-Seven
Thousand Pesos (P2,997,000.00) per 999 sq. m. lot (Record, pp.
127-150). Then, Transfer Certificate of Title Nos. T-81051 to
81062 were issued in the name of the vendee on September 25,
1997 (Record, pp. 151-173).
On the other hand, the registered owners of lot numbers X-6 and
X-7 executed a Deed of Exchange with AFP-RSBS, represented
by respondent Jose Ramiscal, Jr., consenting to the exchange of
lots X-6 and X-7 with lots Y-1-A-1 and Y-1-A-2, respectively, the
latter two lots being owned by AFP-RSBS (Record, pp. 175178). While lots X-15 and X-16 were exchanged with one office
unit or condo unit to be given or ceded to respondent Nilo
Flaviano (Record, pp. 179-182).[3]
Based on the foregoing, petitioner filed a verified complaintaffidavit[4] before the Ombudsman against the respondents
together with Cesar Jonillo (Jonillo), Renato Rivera (Rivera), Mad
Guaybar, Oliver Guaybar, Jonathan Guaybar, Alex Guaybar, Jack
Guiwan, Carlito Flaviano III, Nicolas Ynot, Jolito Poralan, Miguela
Cabi-ao, Jose Rommel Saludar, Joel Teves, Rico Altizo, Johnny
Medillo, Martin Saycon, Arsenio de los Reyes, and Jose
Bomez (Mad Guaybar and his companions), Gen. Jose Ramiscal,
Jr. (Gen. Ramiscal), Wilfredo Pabalan (Pabalan), and Atty. Nilo
Flaviano (Atty. Flaviano) (indicted) for violation of Paragraphs (e),
(g) and (j), Section 3 of Republic Act (R.A.) No. 3019,[5] as
amended, and for malversation of public funds or property
through falsification of public documents.
The Ombudsman's Ruling
In the assailed Resolution dated January 20, 1999, the
Ombudsman held that Mayor Nuez and Nalangan, among others,
entered into the Compromise Agreement on behalf of the city and
pursuant to the authority granted to them by the Sangguniang
Panlungsod by virtue of Resolution No. 87; hence, it is not the
sole responsibility of Mayor Nuez and Nalangan but of the
entire Sangguniang Panlungsod. Moreover, the Ombudsman
opined that the validity of the Compromise Agreement had been
settled when the Office of the Solicitor General (OSG) and the
RTC found it to be in order. The Ombudsman also ruled that the
Order of Judge Adre was made in accordance with the facts of the

56

case, while Diaz, Borinaga, Momongan and Cruzabra were found

to have regularly performed their official functions. Accordingly,
the charges against the respondents were dismissed. Thus, the
case was disposed in this wise:
WHEREFORE, PREMISES CONSIDERED, this Office finds and
so holds that the following crimes were committed and that
respondents, whose names appear below, are probably guilty
thereof:
1. CESAR JONILLO sixteen (16) counts of Falsification of public
document to the sixteen (16) recommendation reports submitted;
2. RENATO RIVERA sixteen (16) counts of Falsification of public
document relative to the sixteen (16) reports submitted, all
dated August 4, 1997;
3. MAD GUAYBAR, OLIVER GUAYBAR, JONATHAN GUAYBAR,
ALEX GUAYBAR, JACK GUIWAN, CARLITO FLAVIANO III,
NICOLAS YNOT, JOLITO PORALAN, MIGUELA CABI-AO, JOSE
ROMMEL SALUDAR, JOEL TEVES, RICO ALTIZO, JOHNNY
MED[I]LLO, MARTIN SAYCON, ARSENIO DE LOS REYES, and
JOSE BOMEZ in conspiracy with public respondents CESAR
JONILLO and RENATO RIVERA one (1) count each for private
respondents and sixteen (16) counts each for public respondents
for violation of Section 3(e) of RA 3019;
4. JOSE RAMISCAL, JR., WILFREDO PABALAN, NILO
FLAVIANO as conspirators for twelve (12) counts of falsification of
public documents relative to the twelve (12) unilateral Deeds of
Sale;
5. MAD GUAYBAR, OLIVER GUAYBAR, JONATHAN GUAYBAR,
ALEX GUAYBAR, JACK GUIWAN, JOLITO PORALAN, MIGUELA
CABI-AO, JOSE ROMMEL SALUDAR, [J]OEL TEVES, RICO
ALTIZO, JOHNNY MEDILLO, MARTIN SAYSON one (1) count
each as conspirator in the falsification of public document relative
to the corresponding unilateral Deed of Sale executed by their
agent in their behalf;
6. JOSE RAMISCAL, JR., WILFREDO PABALAN and NILO
FLAVIANO twelve (12) counts of violation of section 3(e) of RA
3019 for short-changing the government inn the correct amount of
taxes due for the sale of Lot-X to AFP-RSBS; and
7. MAD GUAYBAR, OLIVER GUAYBAR, JONATHAN GUAYBAR,
ALEX GUAYBAR, JACK GUIWAN, JOLITO PORALAN, MIGUELA
CABI-AO, JOSE ROMMEL SALUDAR, [J]OEL TEVES, RICO
ALTIZO, JOHNNY MEDILLO, MARTIN SAYSON one (1) count
each of violation of section 3(e) of RA 3019 as conspirator in
short-changing the government in the payment of taxes for the
sale of Lot-X to AFP-RSBS.
Let the herein attached Informations against aforementioned
respondents be filed with the proper courts.

Charges against respondents ROSALITA NUEZ, AUGUSTUS

MOMONGAN, ABEDNEGO ADRE, ASTERIA CRUZABRA,
PEDRO NALANGAN III, JULIO DIAZ and AGAPITO BORINAGA
are hereby DISMISSED, without prejudice to the filing of criminal
cases against private respondents, for offenses committed not in
conspiracy with the herein public respondents, by the proper
parties-in-interest.
SO RESOLVED.[6]
On February 4, 2000, petitioner filed a Motion for Reconsideration
which was, however, denied by the Ombudsman in his
Order[7]dated April 26, 2000. The Ombudsman held that since the
criminal Informations were already filed against the
aforementioned indicted and the cases were already pending
before the Sandiganbayan and the regular courts
of General Santos City, the Ombudsman had lost jurisdiction over
the said case.
The Sole Issue
Hence, this Petition, on the sole ground that:
THE OMBUDSMAN COMMITTED GRAVE ABUSE OF
DISCRETION, AMOUNTING TO LACK OR IN EXCESS OF
JURISDICTION IN THE EXERCISE OF HIS PROSECUTORY
FUNCTIONS, BY DISMISSING THE CHARGES AGAINST THE
RESPONDENTS DESPITE CLEAR AND CONVINCING
EVIDENCE OF DIRECT PARTICIPATION AND INVOLVEMENT
IN THE CONSPIRACY TO CHEAT AND DEFRAUD THE CITY
GOVERNMENT OF GENERAL SANTOS CITY THROUGH THE
ILLEGAL DISPOSITION OF LOT X OF THE MAGSAYSAY PARK
IN VIOLATION OF LAW AND ITS CHARTER.[8]
Petitioner avers that the Ombudsman ignored substantial
evidence pointing to the existence of a conspiracy among all the
respondents and those indicted, which led to the illegal and
fraudulent disposition of Lot X of the Magsaysay Park. To prove
her claim of a grand conspiracy, petitioner outlines the individual
participation, cooperation and involvement of each respondent, as
follows:
1.
The assailed RTC Order issued by Judge Adre
on July 22, 1997 was part of the grand scheme and was made the
basis for the filing of the miscellaneous sales applications of Mad
Guaybar and his companions. The same Order was likewise used
by Mayor Nuez and Nalangan as the reason for interposing no
objection to the said applications. The assailed RTC Order was
issued by Judge Adre almost five (5) years after his Judgment
based on the Compromise Agreement had long become final;
thus, it was issued with grave abuse of discretion and in gross
ignorance of the law. Judge Adre, therefore, violated Section 3(e)
of R.A. No. 3019.

57

2.
Mayor Nuez and Nalangan knew or ought to have
known, by reason of their respective offices and as administrators
of the properties of the city, that Lot X of the Magsaysay Park is
owned by the city and reserved as health and recreation site. Yet,
Nalangan's Comment, filed before Judge Adre issued the assailed
RTC Order, stated that per verification, there was no existing
donation from the Heirs of Cabalo Kusop to the city. Likewise, in
their 1st Indorsement dated August 2, 1997, instead of opposing
the applications of Mad Guaybar and his companions, Mayor
Nuez and Nalangan endorsed the same and interposed no
objection thereto. Said Indorsement was part of the grand
conspiracy and was utilized as a front for the resale of the said
property to AFP-RSBS, to the injury of the city. Petitioner submits
that Mayor Nuez and Nalangan also violated Section 3(e) of R.A.
No. 3019.
3.
After Mayor Nuez and Nalangan issued their
1st Indorsement on August 2, 1997 and after Jonillo submitted his
falsified report onAugust 4, 1997, Diaz, on the same date,
scheduled the sale of Lot X to Mad Guaybar and his companions
on September 5, 1997. Thus, Diaz issued notices of sale of the
subdivided lots of Lot X on September 5, 1997 without public
auction and at the disadvantageous price recommended by
Rivera. Therefore, Diaz, as a co-conspirator, should be similarly
charged with Jonillo and Rivera for violation of Section 3(e) of
R.A. No. 3019 and for falsification of public documents.
4.
Borinaga, conspiring with Rivera, filed on June 9,
1997 the Motion for Issuance of a Clarificatory Order before
Judge Adre, which led to the issuance by the latter of the assailed
RTC Order. Borinaga and Rivera likewise represented to the RTC
that upon verification, they did not find in the records any deed of
donation executed by the Heirs of Cabalo Kusop. Borinaga should
be held liable as an active participant in a grand scheme to
defraud the city.
5.
Momongan, by the nature of his office, knew that Lot
X is not disposable and alienable and is, therefore, not a proper
subject of a sales patent application. Despite such knowledge and
based on the falsified reports of Jonillo and Rivera, Momongan
allowed Lot X to be subdivided and sold to Mad Guaybar and his
companions by approving their miscellaneous sales application
and issuing the Original Certificates of Title (OCTs) covering the
subdivided lots of Lot X. In sum, Momongan adopted as his own
the false reports, and granted unwarranted benefit and advantage
to Mad Guaybar and his companions, to the injury of the city.
6.
While the function of Cruzabra in the registration of
documents and titles may be considered as ministerial, the
circumstances under which the titles were issued in the names of
Mad Guaybar and his companions and eventually, in the name of
AFP-RSBS, indicate that Cruzabra was aware and was part of the
grand conspiracy to defraud the city. Each of the sixteen (16)
OCTs was transcribed and signed by Cruzabra on September 22,
1997. On the same date, Atty. Flaviano claimed and received the

owners' copies of the OCTs; Mad Guaybar and his companions

executed a Joint Special Power of Attorney (SPA) authorizing Atty.
Flaviano to be their attorney-in-fact, for the purpose of selling their
respective lots; and Cruzabra registered and annotated said SPA
in their respective titles. On September 25, 1997, Atty. Flaviano
registered with Cruzabra twelve (12) Deeds of Absolute Sale in
favor of AFP-RSBS, after paying the Bureau of Internal Revenue
(BIR) on the same day the capital gains tax and documentary
stamp tax due thereon. On the same day, Cruzabra canceled the
OCTs and issued, in lieu thereof, twelve (12)Transfer Certificates
of Title (TCTs) in favor of AFP-RSBS. The remaining four (4) lots
were transferred and registered in the name of AFP-RSBS
on October 10, 1997 by virtue of deeds of exchange executed by
the registered owners in favor of the former. Petitioner submits
that Cruzabra could not have been unaware of the restrictions;
instead, she allowed the transfer and registration of the said lots
to AFP-RSBS so swiftly, that it could only be interpreted as part of
the scheme to defraud the city.[9]
In sum, petitioner ascribes to the Ombudsman grave abuse of
discretion in the exercise of his investigatory and prosecutory
functions, by completely ignoring and disregarding the pieces of
substantial evidence which clearly establish the existence of a
common design among the respondents and those indicted in the
fraudulent sale and disposition of Lot X of the Magsaysay Park.
On the other hand, respondents separately raise their respective
defenses against petitioner's claims, as follows:
1.
The Ombudsman, through the Office of the Special
Prosecutor (OSP), contends that, in effect, petitioner is asking this
Court to review the pieces of evidence gathered by the
Ombudsman during the preliminary investigation. This is not
proper. In Espinosa v. Office of the Ombudsman[10] and Young v.
Office of the Ombudsman,[11] this Court accorded highest respect
for the factual findings of the Ombudsman, absent a clear case of
grave abuse of discretion. The OSP claims that the Ombudsman
did not commit grave abuse of discretion because the
respondents, based on their counter-affidavits, have valid and
legal justifications, sufficient for the Ombudsman to exculpate
them from the charges.[12]
2.
Cruzabra avers that there is no showing that
conspiracy exists between her and other respondents charged
before the Ombudsman. Petitioner's allegations with respect to
Cruzabra refer to recorded transactions which are legal acts.
Such allegations did not discuss how the alleged conspiracy was
committed; they are merely conjectures and bare allegations.
Inasmuch as conspiracy cannot be presumed, and there is no
convincing evidence to support such allegations, the Ombudsman
did not commit grave abuse of discretion. Lastly, Cruzabra claims
that the canceled OCTs do not contain any restriction to transfer
the respective lots to AFP-RSBS. As such, Cruzabra submits that
it would be most unfair if she would be made a part of the alleged

58

conspiracy simply because she exercised her ministerial functions

as Register of Deeds.[13]
3.
Momongan alleges, among others, that as Regional
Executive Director of the DENR, he is duly authorized to sign
patents and reconstituted patents. Since the standard procedure
and processes were complied with, Momongan simply relied on
his subordinates and on their good faith. He argues that he acted
in accordance with law, department guidelines, rules and
regulations, and that to require him to scrutinize every phase of a
report of a subordinate is a very tall order.[14]

4.
Judge Adre manifests that in the Joint
Resolution[15] of the Senate Committees on Accountability of
Public Officers and Investigation (Blue Ribbon) and National
Defense and Security, dated December 23, 1998, not one of the
respondents was recommended for prosecution in connection
with the irregularity involving the Magsaysay Park. Judge Adre
claims that he acted properly, and even sought the opinion of the
OSG before the Compromise Agreement was approved.
However, Judge Adre narrated that due to the vagaries of politics,
the judgment lay dormant, as no motion for execution was filed by
then Mayor Adelbert Antonino, husband of petitioner, after Mayor
Nuez lost in the elections. Subsequently, the writ was not issued
as the Heirs of Cabalo Kusop did not execute any deed of
donation in favor of the city. He declared that the RTC did not lose
jurisdiction over the case when the Motions for Clarification and
Exclusion were filed; thus, the issuance of the assailed RTC
Order excluding Lot X and enjoining the Heirs of Cabalo Kusop
from donating the same to the city in keeping with the intent and
spirit of the compromise agreement, was proper.[16]
5.
Borinaga posits that the Ombudsman's factual
findings need not be disturbed, as they are not attended by grave
abuse of discretion. He maintains that he acted in accordance
with law; that as the Regional Technical Director is not required to
go to the premises of the land subject of miscellaneous
applications, and he may rely on the data submitted by the
CENRO and reviewed by the PENRO.[17] Moreover, Borinaga
argues that the Motion for Reconsideration of petitioner assailing
the Ombudsman's Resolution was filed out of time.[18] The
Certification[19] dated October 1, 2003, issued by Severo A. Sotto,
Records Officer IV of the Office of the Ombudsman, shows that
petitioner was personally served with a copy of the assailed
Resolution on February 24, 1999 by Jose Ruel Bermejo, Process
Server, and she filed her Motion for Reconsideration only on
February 4, 2000.
6.
Diaz opines that there is no substantial evidence to
prove that he participated in a grand scheme to unlawfully
dispose of the lots covered by Lot X. He vouches that when he
issued the notice of sale, he did so on the basis of the requisite
documents submitted to his office.[20]

7.
Mayor Nuez and Nalangan contend that Mayor Nuez
did not violate the Charter of the City, because when she entered
into the Compromise Agreement with the Heirs of Cabalo Kusop,
she was authorized by the Sangguniang Panlungsod under
Resolution No. 87, series of 1991, after almost one (1) year of
committee and public hearings. The same was also referred to
the OSG, which recommended its approval. When the Heirs of
Cabalo Kusop filed a Motion for Exclusion of Lot X, Nalangan had
no recourse but to tell the truth that, indeed, he found no deed of
donation made in favor of the city. While they admit to have
issued Indorsements, they made it clear that the DENR shall
undertake only what is legally feasible. Mayor Nuez and Nalangan
asseverate that they had no intention of giving up the claim of the
city over Lot X, as they even filed a case against Mad Guaybar
and his companions.[21]
Our Ruling
The instant Petition lacks merit.
Section 27 of R.A. No. 6770 (The Ombudsman Act of 1989)
[22]
provides:
SEC. 27. Effectivity and Finality of Decisions. (1) All provisionary
orders of the Office of the Ombudsman are immediately effective
and executory.
A motion for reconsideration of any order, directive or decision of
the Office of the Ombudsman must be filed within five (5) days
after receipt of written notice and shall be entertained only on any
of the following grounds:
(1) New evidence has been discovered which materially affects
the order, directive or decision;
(2) Errors of law or irregularities have been committed prejudicial
to the interest of the movant. The motion for reconsideration shall
be resolved within three (3) days from filing: Provided, That only
one motion for reconsideration shall be entertained.
Other than the statement of material dates wherein petitioner
claimed that she received through counsel the assailed
Resolution of the Ombudsman on January 21, 2000, she failed to
establish that her Motion for Reconsideration was indeed filed on
time, and thus, failed to refute the assertion of the respondents
based on the aforementioned Certification that petitioner was
personally served a copy of the assailed Resolution on February
24, 1999. There are a number of instances when rules of
procedure are relaxed in the interest of justice. However, in this
case, petitioner did not proffer any explanation at all for the late
filing of the motion for reconsideration. After the respondents
made such allegation, petitioner did not bother to respond and
meet the issue head-on. We find no justification why the
Ombudsman entertained the motion for reconsideration, when, at

59

the time of the filing of the motion for reconsideration the assailed
Resolution was already final.

10. When there is clearly no prima facie case against the accused
and a motion to quash on that ground has been denied.

Even only on the basis of this fatal procedural infirmity, the instant
Petition ought to be dismissed. And on the substantive issue
raised, the petition is likewise bereft of merit.

Grave abuse of discretion exists where a power is exercised in an

arbitrary, capricious, whimsical or despotic manner by reason of
passion or personal hostility so patent and gross as to amount to
evasion of positive duty or virtual refusal to perform a duty
enjoined by, or in contemplation of law.[26]

Under Sections 12 and 13, Article XI of the 1987 Constitution, and

pursuant to R.A. No. 6770, the Ombudsman has the power to
investigate and prosecute any act or omission of a public officer
or employee when such act or omission appears to be illegal,
unjust, improper or inefficient.[23] Well-settled is the rule that this
Court will not ordinarily interfere with the Ombudsman's exercise
of his investigatory and prosecutory powers without good and
compelling reasons that indicate otherwise. The rule is based not
only upon respect for the investigatory and prosecutory powers
granted by the Constitution to the Office of the Ombudsman, but
upon practicality as well. A contrary rule would encourage
innumerable petitions seeking dismissal of investigatory
proceedings conducted by the Ombudsman, which would
grievously hamper the functions of the office and the courts, in
much the same way that courts would be swamped by a deluge of
cases if they have to review the exercise of discretion on the part
of public prosecutors each time they decide to file an information
or dismiss a complaint by a private complainant.[24]
Of course, this rule is not absolute. The aggrieved party may file a
petition for certiorari under Rule 65 of the Rules of Court when the
finding of the Ombudsman is tainted with grave abuse of
discretion amounting to lack or excess of jurisdiction, as what the
petitioner did in this case, consistent with our ruling in Collantes v.
Marcelo,[25] where we laid down the following exceptions to the
rule:
1. When necessary to afford adequate protection to the
constitutional rights of the accused;
2. When necessary for the orderly administration of justice or to
avoid oppression or multiplicity of actions;
3. When there is a prejudicial question that is sub judice;
4. When the acts of the officer are without or in excess of
authority;
5. Where the prosecution is under an invalid law, ordinance or
regulation;
6. When double jeopardy is clearly apparent;
7. Where the court has no jurisdiction over the offense;
8. Where it is a case of persecution rather than prosecution;
9. Where the charges are manifestly false and motivated by the
lust for vengeance;

The alleged grave abuse of discretion imputed to the

Ombudsman is found wanting in this case. Thus, this Court finds
no reason to deviate from the general rule. We concur with the
disquisition of GIO I Rubillar-Arao in dismissing the charges
against respondents, as approved by Ombudsman Desierto, thus:
Hence, without ruling on the validity of the titles, this Office is
constrained to limit its evaluation of the issue on the participation
of each respondent in the titling of Lot X, whether the same would
constitute a violation of RA 3019 and/or other illegal acts.
1. Respondent Abednego Adre His participation extends only to
his issuance of an Order excluding Lot-X from the coverage of the
Compromise Agreement.
A review of the terms and conditions of the subject Compromise
Agreement confirms the Order of the respondent that indeed Lot
X was excluded. The Order of respondent judge was made in
accordance with the facts of the case. It is even noteworthy that
respondent judge assisted in preserving the claim of the
government of General Santos City over Lot X by enjoining the
donation of said property by the private respondents.
2. Respondents Nuez and Nalangan Said respondents
participation in the titling of Lot-X was when they issued or caused
the issuance of Indorsements stating therein that this office
(Office of the Mayor) interposes no objection to whatever legal
proceedings your (CENRO) office may pursue on the application
covering portions thereof (Lot-X).
The contents of the Indorsements, as quoted above, cannot be
construed as a waiver on the part of General Santos City on its
claim over Lot-X.On the contrary, it has given DENR the authority
to take the necessary legal proceedings relative to the titling of
the property. Moreover, it should be taken into account that DENR
has the responsibility, authority and the power to grant alienable
and disposable lands to deserving claimants.
Based on these circumstances, there is no evidence to prove that
respondents Nuez and Nalangan gave unwarranted benefit to the
claimants by issuing said Indorsements. In fact, they protected the
interest of the government over Lot-X by immediately filing a case
for nullification of titles upon knowing of the issuances thereof.
xxxx

60

[5.] Public respondents Julio C. Diaz, Agapito Borinaga, Augustus

L. Momongan, Asteria E. Cruzabra Based on the evidences on
record, these respondents were in the regular performance of
their official functions. Their participation in the titling of Lot-X was
due to the fact that the documents for titling were submitted to
their respective offices as a matter of course, and there is nothing
that they can do but to follow the established procedure upon
finding that all the documents for titling were submitted.[27]
Indeed, while the Ombudsman's discretion in determining the
existence of probable cause is not absolute, nonetheless,
petitioner must prove that such discretion was gravely abused in
order to warrant the reversal of the Ombudsman's findings by this
Court. In this respect, petitioner fails.[28]
Moreover, the elements of the offense, essential for the conviction
of an accused under Section 3(e), R. A. No. 3019, are as follows:
(1) The accused is a public officer or a private person charged in
conspiracy with the former;
(2) The said public officer commits the prohibited acts during the
performance of his or her official duties, or in relation to his or her
public functions;
(3) That he or she causes undue injury to any party, whether the
government or a private party;

to observe good faith, which springs from the fountain of good

conscience.[31]
Finally, petitioner speaks of conspiracy among the respondents
and those indicted. However, as found by the Ombudsman, such
conspiracy alleged in the complaint was not supported by ample
evidence. At best, the evidence adduced was not clear as to
respondents' participation in the acts in question. Actori incumbit
onus probandi- the burden of proof rests with the plaintiff or the
prosecution. The inherent weakness of complainant's case is not
a ground for the Ombudsman to conduct preliminary investigation.
[32]
For it is fundamental that conspiracy cannot be presumed.
Conspiracy must be proved by direct evidence or by proof of the
overt acts of the accused, before, during and after the
commission of the crime charged indicative of a common design.
[33]
This, the petitioner sadly failed to establish.
All told, the Ombudsman did not act with grave abuse of
discretion in dismissing the criminal complaint against
respondents.
WHEREFORE, the petition is DISMISSED. No costs.
SO ORDERED.
HILARIO P. SORIANO,

G.R. No. 1

Petitioner,

(4) Such undue injury is caused by giving unwarranted benefits,

advantage or preference to such parties; and
(5) That the public officer has acted with manifest partiality,
evident bad faith or gross inexcusable neglect.[29]
Thus, in order to be held guilty of violating Section 3(e), R. A. No.
3019, the act of the accused that caused undue injury must have
been done with evident bad faith or with gross inexcusable
negligence. Bad faith per se is not enough for one to be held
liable under the law; bad faith must be evident. Bad faith does not
simply connote bad moral judgment or negligence. There must be
some dishonest purpose or some moral obliquity and conscious
doing of a wrong, a breach of a sworn duty through some motive
or intent or ill will. It partakes of the nature of fraud. It
contemplates a state of mind affirmatively operating with furtive
design or some motive of self-interest, or ill will for ulterior
purposes. On the other hand, gross negligence is characterized
by the want of even slight care, acting or omitting to act in a willful
or intentional manner displaying a conscious indifference to
consequences as far as other persons may be affected.[30]
As found by the Ombudsman and based on the records, there is
no showing of evident bad faith and/or gross negligence in the
respective acts of the respondents. It must be stressed that it is
good faith, not bad faith, which is presumed, as the chapter on
Human Relations of the Civil Code directs every person, inter alia,

Present:

- versus -

AUSTRIA

Acting Ch
TINGA,**

CHICO-NA
OMBUDSMAN SIMEON V.

NACHURA

MARCELO; HON. LOURDES S.

PERALTA

PADRE JUAN, Graft Investigation

Officer II; and RAMON GARCIA,

Promulgat

Respondents.

January 3

x---------------------------------------------------------x
DECISION
AUSTRIA-MARTINEZ, J.:

61

Before the Court is a Petition for Certiorari under Rule 65 of the

Rules of Court, assailing the October 3, 2002 Order[1] of the
Ombudsman (respondent) which dismissed the Complaint of
Hilario Soriano (petitioner) against Manila City Prosecutor Ramon
Garcia (Garcia); and the July 14, 2003 Ombudsman
Order[2] which denied petitioner's motion for reconsideration.
The antecedent facts are related to those involved in Hilario Soria
no v.
Ombudsman Simeon V. Marcelo (G.R. No. 163017) which the
Court decided on June 18, 2008.
Petitioner filed with the Office of the City Prosecutor of Manila an
Affidavit-Complaint,[3] docketed as I.S. No. 01F-22547, against
Bank Examiner Mely Palad (Palad) of the Bangko Sentral ng
Pilipinas for falsification of public document and use of falsified
document. Assistant City Prosecutor Celedonio P. Balasbas
(Balasbas) issued a Resolution[4] dated August 27,
2001 recommending that Palad be charged in court for
falsification of public document. First Assistant City Prosecutor
Leoncia R. Dimagiba (Dimagiba) recommended the approval of
the Resolution. But, upon Motion to Re-open filed by Palad,
Dimagiba recommended the re-opening of I.S. No. 01F-22547.
[5]
Garcia approved the recommendation of Dimagiba to re-open
the case.[6] However, in an Indorsement[7] dated August 5, 2002,
Garcia forwarded the complete records of I.S. No. 01F-22547 to
Chief State Prosecutor Jovencito R. Zuo of the Department of
Justice (DOJ), with the following recommendation:
x x x [T]hat the preliminary investigation of this case be
transferred to the Department of Justice considering that herein
complainant has recently filed with the Office of the
Ombudsman separate complaints against the undersigned
City Prosecutor and Assistant City Prosecutor Celedonio P.
Balasbas which are both presently pending thereat, hereby
requesting that a State Prosecutor be designated to conduct the
preliminary investigation thereof in order to avoid any suspicion of
partiality and bias against the Office of the City Prosecutor of
Manila.[8] (Emphasis supplied)
On September 5, 2002, petitioner filed with the respondent an
Affidavit-Complaint against Garcia for violation of Article 208[9] of
the Revised Penal Code and Section 3(e)[10] of Republic Act (R.A.)
No. 3109, allegedly committed as follows:
7. On August 5, 2002, or more than fourteen (14) months after I
filed my complaint against Ms. Palad, respondent Ramon Garcia
unilaterally endorsed and forwarded to the Honorable Jovencito
R. Zuo, Chief State Prosecutor of the Department of Justice, for
investigation and resolution [of] said complaint against Mely
Palad. A copy of the Indorsement dated August 5, 2002 is
attached herewith as Annex E.

8. By refusing to allow the Manila prosecutors to finally resolve

said complaint respondent Ramon Garcia has in effect managed
to evade his statutory duty to act on the resolution of my criminal
complaint. Thus, his unilateral endorsement of the complaint to
the DOJ is in dereliction of the duties of his office to investigate
and institute prosecution for the punishment of violators of the
law. His refusal to perform such duties is malicious as it is
obviously a form of retaliation for my having filed a complaint
against him. At any rate, his dereliction of his duties had no legal
basis.
The same deliberate omission to perform the duties of his office
which is evidently in bad faith has caused me undue injury
because the resolution of my complaint has been even more
unduly delayed, in effect denying me justice for justice delayed is
justice denied.[11]
Respondent issued the herein assailed October 3, 2002 Order,
dismissing the complaint for lack of probable cause, thus:
It must be noted that the violation of Art. 208 of the Revised Penal
Code requires the presence of the following essential elements, to
wit:
1.
That the offender is a public officer or officer of the law
who has a duty to cause the prosecution of, or to prosecute,
offenses;
2.
That there is dereliction of the duties of his office; that
is, knowing the commission of the crime, he does not cause the
prosecution of the criminal, or knowing that a crime is about to be
committed he tolerates its commission; and
3.
The offender acts with malice and deliberate intent to
favor the violator of the law.
In addition thereto, however, the Supreme Court in the case
of U.S. vs. Mendoza, 23 Phil. 194, ruled that:
The crime committed by the law-violator must be proved first. If
the guilt of the law-violator is not proved, the person charged with
dereliction of duty under this article is not liable.
Taking into account the aforequoted jurisprudence and elements
relative to the offense charged, it is clear that the filing of the
instant suit is still premature considering the observation that the
questioned controversy against Ms. Palad is still pending.
Even the element of malice and deliberate intent to favor the
violator of the law cannot be entrenched without Ms. Palads guilt
for the alleged defiance having been pronounced first.
The referral of the dispute against Ms. Palad to the DOJ by the
herein respondent cannot be construed as malicious constitutive
of dereliction of duty since the same is being called for under the

62

circumstances in order not to invite doubts on the respondents

impartiality in the disposition of the subject case.
On the other hand, the violation of Sec. 3(e) of R.A. 3019, as
amended, requires that the undue injury sustained as an element
thereof must be actual and certain. This rule had been
pronounced by the Supreme Court in the case of Llorente vs.
Sandiganbayan, et al., G.R. No. 122166, promulgated on March
11, 1998 x x x.
xxxx
While it may be true that justice delayed is justice denied,
however, the damages caused thereby will not fall within the
meaning of the undue injury contemplated in Sec. 3(e) of R.A.
3019, as amended, as the same pertains to actual damages
capable of pecuniary estimation and is quantifiable as to its
amount.
xxxx
WHEREFORE, premises considered, let the instant complaint
against City Prosecutor Ramon Garcia of Manila be, as it is
hereby, dismissed.
SO RESOLVED.[12]
Petitioner filed a Motion for Reconsideration but respondent
denied it in the herein assailed Order dated July 14, 2003.
By the present recourse, petitioner seeks the annulment of the
assailed Orders on the ground that respondent issued the same
with grave abuse of discretion.[13]
Petitioner argues that granting for the sake of argument that his
complaint against Garcia for violation of Article 208 of the Revised
Penal Code is premature, considering that the complaint against
Palad is still in the preliminary investigation stage with
Investigating Prosecutor Liberato Cabaron (Cabaron),[14] his other
complaint against Garcia for violation of Sec. 3(e) of R.A. No.
3019 should have been sustained by respondent because Garcia
committed a clear dereliction of duty in referring I.S. No. 01F22547 to the DOJ; that the referral of the case was unilateral, for
neither petitioner nor Palad sought such relief; that Cabaron did
not recommend the referral; that Garcia should have awaited
Cabaron's recommendation for the latter was already in the
process of conducting a preliminary investigation; and that, in
referring the case to the DOJ instead, Garcia caused an
unwarranted delay of the investigation, thereby inflicting upon
petitioner a clear and ascertainable injury.[15]
The Solicitor General filed his Comment[16] and
Memorandum[17] for the respondent. He maintains that the
respondents plenary power to conduct a preliminary investigation
cannot be interfered with by the Court, especially when the
validity of its finding of lack of probable cause is discernible from

the records of the case, such as in I.S. No. 01F-22547 where it is

clear that it was well within the discretion of Garcia to refer the
case to the DOJ after he was administratively charged by
petitioner.[18]
The Court agrees with the Solicitor General.
Sections 12 and 13, Article XI of the 1987 Constitution and R. A.
No. 6770 (The Ombudsman Act of 1989) endow the respondent
with plenary powers to investigate and prosecute public officers or
employees for acts or omissions which appear to be illegal,
unjust, improper or inefficient. Its power is virtually free from
legislative, executive or judicial intervention, and insulated from
outside pressure and improper influence. Thus, the Court
generally adheres to a policy of non-interference in the
investigatory and prosecutorial powers of the respondent.[19]
However, where the findings of the respondent on the existence
of probable cause in criminal cases are tainted with grave abuse
of discretion amounting to lack or excess of jurisdiction, the
aggrieved party may file a petition for certiorari with this Court
under Rule 65 of the Rules of Court,[20] upon a showing that the
Ombudsman acted with grave abuse of discretion, or more
specifically, that it exercised its power arbitrarily or despotically by
reason of passion or personal hostility; and such exercise was so
patent and gross as to amount to an evasion of positive duty, or to
a virtual refusal to perform it or to act in contemplation of law. [21]
Much like G.R. No. 163017, petitioner herein failed to establish
that the respondent committed grave abuse of discretion in
dismissing his complaint against Garcia.
To justify an indictment under Sec. 3(e) of R.A. No. 3019, there
must be a showing of the existence of the following elements: a)
that the accused are public officers or private persons charged in
conspiracy with them; b) that said public officers committed the
prohibited acts during the performance of their official duties or in
relation to their public positions; c) that they caused undue injury
to any party, whether the Government or a private party; d) that
such injury was caused by giving unwarranted benefits,
advantage or preference to such parties; and e) that the public
officers acted with manifest partiality, evident bad faith or gross
inexcusable negligence.[22]
In Santos v. People,[23] the Court equated undue injury -- in the
context of Section 3(e) of the Anti-Graft and Corrupt Practices Act
punishing the act of "causing undue injury to any party with that
civil law concept of actual damage. As the Court elaborated
in Llorente v. Sandiganbayan,[24] to wit:
x x x Unlike in actions for torts, undue injury in Sec. 3(e) cannot
be presumed even after a wrong or a violation of a right has been
established. Its existence must be proven as one of the elements
of the crime. In fact, the causing of undue injury, or the giving of
any unwarranted benefits, advantage or preference through

63

manifest partiality, evident bad faith or gross inexcusable

negligence constitutes the very act punished under this
section. Thus, it is required that the undue injury be
specified, quantified and proven to the point of moral
certainty.
In jurisprudence, undue injury is consistently interpreted as actual
damage. Undue has been defined as more than necessary, not
proper, [or] illegal; and injury as any wrong or damage done to
another, either in his person, rights, reputation or property[;that is,
the] invasion of any legally protected interest of another. Actual
damage, in the context of these definitions, is akin to that in civil
law.
In turn, actual or compensatory damages is defined by Article
2199 of the Civil Code as follows:
Art. 2199. Except as provided by law or by stipulation, one is
entitled to an adequate compensation only for such pecuniary
loss suffered by him as he has duly proved. Such compensation
is referred to as actual or compensatory damages.[25]
It naturally follows that the rule that should likewise be applied in
determining undue injury is that in determining actual damages,
the court cannot rely on mere assertions, speculations,
conjectures or guesswork, but must depend on competent proof
and on the best evidence obtainable regarding specific facts that
could afford some basis for measuring compensatory or actual
damage.[26]
The foregoing rule is made more concrete in Llorente v.
Sandiganbayan.[27] Therein respondent Leticia Fuertes (Fuertes)
accused therein petitioner Cresente Llorente (Llorente) of causing
her undue injury by delaying the release of salaries and
allowances. The Sandiganbayan convicted Llorente based,
among others, on the testimony of Fuertes on the distress caused
to her family by the delay in the release of her salary. Reversing
the conviction of Llorente, the Court held:
Complainants testimony regarding her familys financial stress was
inadequate and largely speculative. Without giving specific
details, she made only vague references to the fact that her four
children were all going to school and that she was the
breadwinner in the family. She, however, did not say that she was
unable to pay their tuition fees and the specific damage brought
by such nonpayment. The fact that the injury to her family was
unspecified or unquantified does not satisfy the element
of undue injury, as akin to actual damages. As in civil
cases, actual damages, if not supported by evidence on
record, cannot be considered.[28]
In the present case, petitioner claims that the form of injury he
suffered from the act of Garcia in referring his case to the DOJ is
the resultant delay in the resolution of his Complaint against
Palad. However, other than such assertion, petitioner failed to

adduce evidence of the actual loss or damage he suffered by

reason of the delay. While it is not necessary that a specific
amount of the damage be proven with absolute certainty, there
must be some reasonable basis by which the court can measure
it.[29] Here, petitioner utterly failed to support his bare allegation of
undue injury.
Moreover, the fourth element is not alleged in the AffidavitComplaint, which contains no statement that in referring the case
to the DOJ, Garcia gave unwarranted benefit, advantage or
preference to Palad. Such omission of a basic element of the
offense renders the Affidavit-Complaint all the more defective.
Finally, in his Indorsement, Garcia explained that, in view of
petitioner's filing of an administrative case against him before the
Ombudsman, he was referring the case to the DOJ to
avoid suspicion of partiality and bias. The Court finds the reason
given by Garcia for referring the case not completely acceptable:
the mere filing of an administrative case is not a ground for
disqualification or inhibition; a contrary rule would encourage
parties to file administrative cases against judges or prosecutors
in the hope that the latter would recuse himself and refer their
cases to friendlier fora.[30] Thus, the reason cited by Garcia in
referring the case was erroneous. However, in the absence of
evidence that Garcia was motivated by malice or ill will, his
erroneous referral of the case does not put him in violation of Sec.
3(e) of R.A. No. 3019. Hence, respondent's dismissal of the
complaint against Garcia did not constitute grave abuse of
discretion.
WHEREFORE, the petition is DENIED for lack of merit.
No costs.
SO ORDERED.
SOCIAL JUSTICE SOCIETY (SJS), G.R. No. 157870
Petitioner,
- versus DANGEROUS DRUGS BOARD and
PHILIPPINE DRUG ENFORCEMENT
AGENCY (PDEA),
Respondents.
x-----------------------------------------------x
ATTY. MANUEL J. LASERNA, JR., G.R. No. 158633
Petitioner,

64

- versus -

VELASCO, JR., J.:

Respondents.

In these kindred petitions, the constitutionality of Section 36 of

Republic Act No. (RA) 9165, otherwise known as
the Comprehensive Dangerous Drugs Act of 2002, insofar as it
requires mandatory drug testing of candidates for public office,
students of secondary and tertiary schools, officers and
employees of public and private offices, and persons charged
before the prosecutors office with certain offenses, among other
personalities, is put in issue.

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

As far as pertinent, the challenged section reads as follows:

AQUILINO Q. PIMENTEL, JR., G.R. No. 161658

QUISUMBING,

SEC. 36. Authorized Drug Testing.Authorized drug testing shall be

done by any government forensic laboratories or by any of the
drug testing laboratories accredited and monitored by the DOH to
safeguard the quality of the test results. x x x The drug testing
shall employ, among others, two (2) testing methods, the
screening test which will determine the positive result as well as
the type of drug used and the confirmatory test which will confirm
a positive screening test. x x x The following shall be subjected to
undergo drug testing:

YNARES-SANTIAGO,

xxxx

CARPIO,

(c) Students of secondary and tertiary schools.Students of

secondary and tertiary schools shall, pursuant to the related rules
and regulations as contained in the schools student handbook
and with notice to the parents, undergo a random drug testing x x
x;

DANGEROUS DRUGS BOARD and

PHILIPPINE DRUG ENFORCEMENT
AGENCY,

Petitioner,
Present:
PUNO, C.J.,

AUSTRIA-MARTINEZ,
- versus - CORONA,
CARPIO MORALES,

NACHURA,

(d) Officers and employees of public and private offices.Officers

and employees of public and private offices, whether domestic or
overseas, shall be subjected to undergo a random drug test as
contained in the companys work rules and regulations, x x x for
purposes of reducing the risk in the workplace. Any officer or
employee found positive for use of dangerous drugs shall be dealt
with administratively which shall be a ground for suspension or
termination, subject to the provisions of Article 282 of the Labor
Code and pertinent provisions of the Civil Service Law;

REYES,

xxxx

LEONARDO-DE CASTRO, and

(f) All persons charged before the prosecutors office with a

criminal offense having an imposable penalty of imprisonment of
not less than six (6) years and one (1) day shall undergo a
mandatory drug test;

AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,

BRION, JJ.
COMMISSION ON ELECTIONS, Promulgated:
Respondent.
November 3, 2008
x----------------------------------------------------------------------------------------x

(g) All candidates for public office whether appointed or elected

both in the national or local government shall undergo a
mandatory drug test.
In addition to the above stated penalties in this Section, those
found to be positive for dangerous drugs use shall be subject to
the provisions of Section 15 of this Act.

DECISION

65

G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on

Elections)

mandatory drug test while the second list shall consist of those
candidates who failed to comply with said drug test. x x x

On December 23, 2003, the Commission on Elections

(COMELEC) issued Resolution No. 6486, prescribing the rules
and regulations on the mandatory drug testing of candidates for
public office in connection with the May 10, 2004 synchronized
national and local elections. The pertinent portions of the said
resolution read as follows:

SEC. 5. Effect of failure to undergo mandatory drug test and file

drug test certificate.No person elected to any public office shall
enter upon the duties of his office until he has undergone
mandatory drug test and filed with the offices enumerated under
Section 2 hereof the drug test certificate herein
required. (Emphasis supplied.)

WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:

Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and

a candidate for re-election in the May 10, 2004 elections,[1] filed a
Petition for Certiorari and Prohibition under Rule 65. In it, he
seeks (1) to nullify Sec. 36(g) of RA 9165 and COMELEC
Resolution No. 6486 dated December 23, 2003 for being
unconstitutional in that they impose a qualification for candidates
for senators in addition to those already provided for in the 1987
Constitution; and (2) to enjoin the COMELEC from implementing
Resolution No. 6486.

SEC. 36. Authorized Drug Testing.x x x

xxxx
(g) All candidates for public office x x x both in the national or local
government shall undergo a mandatory drug test.
WHEREAS, Section 1, Article XI of the 1987 Constitution provides
that public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility,
integrity, loyalty and efficiency;
WHEREAS, by requiring candidates to undergo mandatory drug
test, the public will know the quality of candidates they are
electing and they will be assured that only those who can serve
with utmost responsibility, integrity, loyalty, and efficiency would
be elected x x x.
NOW THEREFORE, The [COMELEC], pursuant to the authority
vested in it under the Constitution, Batas Pambansa Blg. 881
(Omnibus Election Code), [RA] 9165 and other election laws,
RESOLVED to promulgate, as it hereby promulgates, the
following rules and regulations on the conduct of mandatory drug
testing to candidates for public office[:]
SECTION 1. Coverage.All candidates for public office, both
national and local, in the May 10, 2004 Synchronized National
and Local Elections shall undergo mandatory drug test in
government forensic laboratories or any drug testing laboratories
monitored and accredited by the Department of Health.
SEC. 3. x x x
On March 25, 2004, in addition to the drug certificates filed with
their respective offices, the Comelec Offices and employees
concerned shall submit to the Law Department two (2) separate
lists of candidates. The first list shall consist of those candidates
who complied with the mandatory drug test while the second list
shall consist of those candidates who failed to comply x x x.
SEC. 4. Preparation and publication of names of
candidates.Before the start of the campaign period, the
[COMELEC] shall prepare two separate lists of candidates. The
first list shall consist of those candidates who complied with the

Pimentel invokes as legal basis for his petition Sec. 3, Article VI of

the Constitution, which states:
SECTION 3. No person shall be a Senator unless he is a naturalborn citizen of the Philippines, and, on the day of the election, is
at least thirty-five years of age, able to read and write, a
registered voter, and a resident of the Philippines for not less than
two years immediately preceding the day of the election.
According to Pimentel, the Constitution only prescribes a
maximum of five (5) qualifications for one to be a candidate for,
elected to, and be a member of the Senate. He says that both the
Congress and COMELEC, by requiring, via RA 9165 and
Resolution No. 6486, a senatorial aspirant, among other
candidates, to undergo a mandatory drug test, create an
additional qualification that all candidates for senator must first be
certified as drug free. He adds that there is no provision in the
Constitution authorizing the Congress or COMELEC to expand
the qualification requirements of candidates for senator.
G.R. No. 157870 (Social Justice Society v. Dangerous
Drugs Board and Philippine Drug Enforcement Agency)
In its Petition for Prohibition under Rule 65, petitioner Social
Justice Society (SJS), a registered political party, seeks to prohibit
the Dangerous Drugs Board (DDB) and the Philippine Drug
Enforcement Agency (PDEA) from enforcing paragraphs (c), (d),
(f), and (g) of Sec. 36 of RA 9165 on the ground that they are
constitutionally infirm. For one, the provisions constitute undue
delegation of legislative power when they give unbridled
discretion to schools and employers to determine the manner of
drug testing. For another, the provisions trench in the equal
protection clause inasmuch as they can be used to harass a
student or an employee deemed undesirable. And for a third, a

66

persons constitutional right against unreasonable searches is also

breached by said provisions.

qualifications for candidates for senator in addition to those laid

down by the Constitution? and

G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)

(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165
unconstitutional? Specifically, do these paragraphs violate the
right to privacy, the right against unreasonable searches and
seizure, and the equal protection clause? Or do they constitute
undue delegation of legislative power?

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer,

also seeks in his Petition for Certiorari and Prohibition under Rule
65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as
unconstitutional for infringing on the constitutional right to privacy,
the right against unreasonable search and seizure, and the right
against self-incrimination, and for being contrary to the due
process and equal protection guarantees.
The Issue on Locus Standi
First off, we shall address the justiciability of the cases at bench
and the matter of the standing of petitioners SJS and Laserna to
sue. As respondents DDB and PDEA assert, SJS and Laserna
failed to allege any incident amounting to a violation of the
constitutional rights mentioned in their separate petitions.[2]
It is basic that the power of judicial review can only be exercised
in connection with a bona fide controversy which involves the
statute sought to be reviewed.[3] But even with the presence of an
actual case or controversy, the Court may refuse to exercise
judicial review unless the constitutional question is brought before
it by a party having the requisite standing to challenge it.[4] To
have standing, one must establish that he or she has suffered
some actual or threatened injury as a result of the allegedly illegal
conduct of the government; the injury is fairly traceable to the
challenged action; and the injury is likely to be redressed by a
favorable action.[5]
The rule on standing, however, is a matter of procedure; hence, it
can be relaxed for non-traditional plaintiffs, like ordinary citizens,
taxpayers, and legislators when the public interest so requires,
such as when the matter is of transcendental importance, of
overarching significance to society, or of paramount public
interest.[6] There is no doubt that Pimentel, as senator of
the Philippines and candidate for the May 10, 2004 elections,
possesses the requisite standing since he has substantial
interests in the subject matter of the petition, among other
preliminary considerations. Regarding SJS and Laserna, this
Court is wont to relax the rule on locus standi owing primarily to
the transcendental importance and the paramount public interest
involved in the enforcement of Sec. 36 of RA 9165.
The Consolidated Issues
The principal issues before us are as follows:
(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No.
6486 impose an additional qualification for candidates for
senator? Corollarily, can Congress enact a law prescribing

Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)
In essence, Pimentel claims that Sec. 36(g) of RA 9165 and
COMELEC Resolution No. 6486 illegally impose an additional
qualification on candidates for senator. He points out that, subject
to the provisions on nuisance candidates, a candidate for senator
needs only to meet the qualifications laid down in Sec. 3, Art. VI of
the Constitution, to wit: (1) citizenship, (2) voter registration, (3)
literacy, (4) age, and (5) residency. Beyond these stated
qualification requirements, candidates for senator need not
possess any other qualification to run for senator and be voted
upon and elected as member of the Senate. The Congress
cannot validly amend or otherwise modify these qualification
standards, as it cannot disregard, evade, or weaken the force of a
constitutional mandate,[7] or alter or enlarge the Constitution
Pimentels contention is well-taken. Accordingly, Sec. 36(g) of RA
9165 should be, as it is hereby declared as, unconstitutional. It is
basic that if a law or an administrative rule violates any norm of
the Constitution, that issuance is null and void and has no effect.
The Constitution is the basic law to which all laws must conform;
no act shall be valid if it conflicts with the Constitution.[8] In the
discharge of their defined functions, the three departments of
government have no choice but to yield obedience to the
commands of the Constitution. Whatever limits it imposes must be
observed.[9]
Congress inherent legislative powers, broad as they may be, are
subject to certain limitations. As early as 1927, in Government v.
Springer, the Court has defined, in the abstract, the limits on
legislative power in the following wise:
Someone has said that the powers of the legislative department
of the Government, like the boundaries of the ocean, are
unlimited. In constitutional governments, however, as well as
governments acting under delegated authority, the powers of
each of the departments x x x are limited and confined within the
four walls of the constitution or the charter, and each department
can only exercise such powers as are necessarily implied from
the given powers. The Constitution is the shore of legislative
authority against which the waves of legislative enactment may
dash, but over which it cannot leap.[10]

67

Thus, legislative power remains limited in the sense that it is

subject to substantive and constitutional limitations which
circumscribe both the exercise of the power itself and the
allowable subjects of legislation.[11] The substantive constitutional
limitations are chiefly found in the Bill of Rights[12] and other
provisions, such as Sec. 3, Art. VI of the Constitution prescribing
the qualifications of candidates for senators.

While it is anti-climactic to state it at this juncture, COMELEC

Resolution No. 6486 is no longer enforceable, for by its terms, it
was intended to cover only the May 10, 2004 synchronized
elections and the candidates running in that electoral event.
Nonetheless, to obviate repetition, the Court deems it appropriate
to review and rule, as it hereby rules, on its validity as an
implementing issuance.

In the same vein, the COMELEC cannot, in the guise of enforcing

and administering election laws or promulgating rules and
regulations to implement Sec. 36(g), validly impose qualifications
on candidates for senator in addition to what the Constitution
prescribes. If Congress cannot require a candidate for senator to
meet such additional qualification, the COMELEC, to be sure, is
also without such power. The right of a citizen in the democratic
process of election should not be defeated by unwarranted
impositions of requirement not otherwise specified in the
Constitution.[13]

It ought to be made abundantly clear, however, that the

unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having
infringed the constitutional provision defining the qualification or
eligibility requirements for one aspiring to run for and serve as
senator.

Sec. 36(g) of RA 9165, as sought to be implemented by the

assailed COMELEC resolution, effectively enlarges the
qualification requirements enumerated in the Sec. 3, Art. VI of the
Constitution. As couched, said Sec. 36(g) unmistakably requires a
candidate for senator to be certified illegal-drug clean, obviously
as a pre-condition to the validity of a certificate of candidacy for
senator or, with like effect, a condition sine qua non to be voted
upon and, if proper, be proclaimed as senator-elect. The
COMELEC resolution completes the chain with the proviso that
[n]o person elected to any public office shall enter upon the duties
of his office until he has undergone mandatory drug test. Viewed,
therefore, in its proper context, Sec. 36(g) of RA 9165 and the
implementing COMELEC Resolution add another qualification
layer to what the 1987 Constitution, at the minimum, requires for
membership in the Senate. Whether or not the drug-free bar set
up under the challenged provision is to be hurdled before or after
election is really of no moment, as getting elected would be of
little value if one cannot assume office for non-compliance with
the drug-testing requirement.
It may of course be argued, in defense of the validity of Sec. 36(g)
of RA 9165, that the provision does not expressly state that noncompliance with the drug test imposition is a disqualifying factor
or would work to nullify a certificate of candidacy. This argument
may be accorded plausibility if the drug test requirement is
optional. But the particular section of the law, without exception,
made drug-testing on those covered mandatory, necessarily
suggesting that the obstinate ones shall have to suffer the
adverse consequences for not adhering to the statutory
command. And since the provision deals with candidates for
public office, it stands to reason that the adverse consequence
adverted to can only refer to and revolve around the election and
the assumption of public office of the candidates. Any other
construal would reduce the mandatory nature of Sec. 36(g) of RA
9165 into a pure jargon without meaning and effect whatsoever.

SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)
The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165
for secondary and tertiary level students and public and private
employees, while mandatory, is a random and suspicionless
arrangement. The objective is to stamp out illegal drug and
safeguard in the process the well being of [the] citizenry,
particularly the youth, from the harmful effects of dangerous
drugs. This statutory purpose, per the policy-declaration portion of
the law, can be achieved via the pursuit by the state of an
intensive and unrelenting campaign against the trafficking and
use of dangerous drugs x x x through an integrated system of
planning, implementation and enforcement of anti-drug abuse
policies, programs and projects.[14] The primary legislative intent is
not criminal prosecution, as those found positive for illegal drug
use as a result of this random testing are not necessarily treated
as criminals. They may even be exempt from criminal liability
should the illegal drug user consent to undergo
rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point:
Sec. 54. Voluntary Submission of a Drug Dependent to
Confinement, Treatment and Rehabilitation.A drug dependent or
any person who violates Section 15 of this Act may, by
himself/herself or through his/her parent, [close relatives] x x x
apply to the Board x x x for treatment and rehabilitation of the
drug dependency. Upon such application, the Board shall bring
forth the matter to the Court which shall order that the applicant
be examined for drug dependency. If the examination x x x results
in the certification that the applicant is a drug dependent, he/she
shall be ordered by the Court to undergo treatment and
rehabilitation in a Center designated by the Board x x x.
xxxx
Sec. 55. Exemption from the Criminal Liability Under the
Voluntary Submission Program.A drug dependent under the
voluntary submission program, who is finally discharged from
confinement, shall be exempt from the criminal liability under
Section 15 of this Act subject to the following conditions:

68

xxxx
School children, the US Supreme Court noted, are most
vulnerable to the physical, psychological, and addictive effects of
drugs. Maturing nervous systems of the young are more critically
impaired by intoxicants and are more inclined to drug
dependency. Their recovery is also at a depressingly low rate.[15]
The right to privacy has been accorded recognition in this
jurisdiction as a facet of the right protected by the guarantee
against unreasonable search and seizure[16] under Sec. 2, Art.
III[17] of the Constitution. But while the right to privacy has long
come into its own, this case appears to be the first time that the
validity of a state-decreed search or intrusion through the medium
of mandatory random drug testing among students and
employees is, in this jurisdiction, made the focal point. Thus, the
issue tendered in these proceedings is veritably one of first
impression.
US jurisprudence is, however, a rich source of persuasive
jurisprudence. With respect to random drug testing among school
children, we turn to the teachings of Vernonia School District 47J
v. Acton (Vernonia) and Board of Education of Independent
School District No. 92 of Pottawatomie County, et al. v. Earls, et
al. (Board of Education),[18] both fairly pertinent US Supreme
Court-decided cases involving the constitutionality of
governmental search.
In Vernonia, school administrators in Vernonia, Oregon wanted to
address the drug menace in their respective institutions following
the discovery of frequent drug use by school athletes. After
consultation with the parents, they required random urinalysis
drug testing for the schools athletes. James Acton, a high school
student, was denied participation in the football program after he
refused to undertake the urinalysis drug testing. Acton forthwith
sued, claiming that the schools drug testing policy violated, inter
alia, the Fourth Amendment[19] of the US Constitution.
The US Supreme Court, in fashioning a solution to the issues
raised in Vernonia, considered the following: (1) schools stand in
loco parentis over their students; (2) school children, while not
shedding their constitutional rights at the school gate, have less
privacy rights; (3) athletes have less privacy rights than nonathletes since the former observe communal undress before and
after sports events; (4) by joining the sports activity, the athletes
voluntarily subjected themselves to a higher degree of school
supervision and regulation; (5) requiring urine samples does not
invade a students privacy since a student need not undress for
this kind of drug testing; and (6) there is need for the drug testing
because of the dangerous effects of illegal drugs on the
young. The US Supreme Court held that the policy
constituted reasonable search under the Fourth[20] and 14th
Amendments and declared the random drug-testing policy
constitutional.

In Board of Education, the Board of Education of a school

in Tecumseh, Oklahoma required a drug test for high school
students desiring to join extra-curricular activities. Lindsay Earls, a
member of the show choir, marching band, and academic team
declined to undergo a drug test and averred that the drug-testing
policy made to apply to non-athletes violated the Fourth and 14th
Amendments. As Earls argued, unlike athletes who routinely
undergo physical examinations and undress before their peers in
locker rooms, non-athletes are entitled to more privacy.
The US Supreme Court, citing Vernonia, upheld the
constitutionality of drug testing even among non-athletes on the
basis of the schools custodial responsibility and authority. In so
ruling, said court made no distinction between a non-athlete and
an athlete. It ratiocinated that schools and teachers act in place of
the parents with a similar interest and duty of safeguarding the
health of the students. And in holding that the school could
implement its random drug-testing policy, the Court hinted that
such a test was a kind of search in which even a reasonable
parent might need to engage.
In sum, what can reasonably be deduced from the above two
cases and applied to this jurisdiction are: (1) schools and their
administrators stand in loco parentis with respect to their
students; (2) minor students have contextually fewer rights than
an adult, and are subject to the custody and supervision of their
parents, guardians, and schools; (3) schools, acting in loco
parentis, have a duty to safeguard the health and well-being of
their students and may adopt such measures as may reasonably
be necessary to discharge such duty; and (4) schools have the
right to impose conditions on applicants for admission that are
fair, just, and non-discriminatory.
Guided by Vernonia and Board of Education, the Court is of the
view and so holds that the provisions of RA 9165 requiring
mandatory, random, and suspicionless drug testing of students
are constitutional. Indeed, it is within the prerogative of
educational institutions to require, as a condition for admission,
compliance with reasonable school rules and regulations and
policies. To be sure, the right to enroll is not absolute; it is subject
to fair, reasonable, and equitable requirements.
The Court can take judicial notice of the proliferation of prohibited
drugs in the country that threatens the well-being of the people,
[21]
particularly the youth and school children who usually end up
as victims. Accordingly, and until a more effective method is
conceptualized and put in motion, a random drug testing of
students in secondary and tertiary schools is not only acceptable
but may even be necessary if the safety and interest of the
student population, doubtless a legitimate concern of the
government, are to be promoted and protected. To borrow
from Vernonia, [d]eterring drug use by our Nations schoolchildren
is as important as enhancing efficient enforcement of the Nations
laws against the importation of drugs; the necessity for the State
to act is magnified by the fact that the effects of a drug-infested

69

school are visited not just upon the users, but upon the entire
student body and faculty.[22] Needless to stress, the random
testing scheme provided under the law argues against the idea
that the testing aims to incriminate unsuspecting individual
students.
Just as in the case of secondary and tertiary level students, the
mandatory but random drug test prescribed by Sec. 36 of RA
9165 for officers and employees of public and private offices is
justifiable, albeit not exactly for the same reason. The Court notes
in this regard that petitioner SJS, other than saying that subjecting
almost everybody to drug testing, without probable cause, is
unreasonable, an unwarranted intrusion of the individual right to
privacy,[23] has failed to show how the mandatory, random, and
suspicionless drug testing under Sec. 36(c) and (d) of RA 9165
violates the right to privacy and constitutes unlawful and/or
unconsented search under Art. III, Secs. 1 and 2 of the
Constitution.[24] Petitioner Lasernas lament is just as simplistic,
sweeping, and gratuitous and does not merit serious
consideration. Consider what he wrote without elaboration:
The US Supreme Court and US Circuit Courts of Appeals have
made various rulings on the constitutionality of mandatory drug
tests in the school and the workplaces. The US courts have been
consistent in their rulings that the mandatory drug tests violate a
citizens constitutional right to privacy and right against
unreasonable search and seizure. They are quoted extensively
hereinbelow.[25]
The essence of privacy is the right to be left alone.[26] In context,
the right to privacy means the right to be free from unwarranted
exploitation of ones person or from intrusion into ones private
activities in such a way as to cause humiliation to a persons
ordinary sensibilities. [27] And while there has been general
agreement as to the basic function of the guarantee against
unwarranted search, translation of the abstract prohibition against
unreasonable searches and seizures into workable broad
guidelines for the decision of particular cases is a difficult task, to
borrow from C. Camara v. Municipal Court.[28] Authorities are
agreed though that the right to privacy yields to certain paramount
rights of the public and defers to the states exercise of police
power.[29]
As the warrantless clause of Sec. 2, Art III of the Constitution is
couched and as has been held, reasonableness is the touchstone
of the validity of a government search or intrusion.[30] And whether
a search at issue hews to the reasonableness standard is judged
by the balancing of the government-mandated intrusion on the
individuals privacy interest against the promotion of some
compelling state interest.[31] In the criminal context,
reasonableness requires showing of probable cause to be
personally determined by a judge. Given that the drug-testing
policy for employeesand students for that matterunder RA 9165 is
in the nature of administrative search needing what was referred
to in Vernonia as swift and informal disciplinary procedures, the

probable-cause standard is not required or even practicable. Be

that as it may, the review should focus on the reasonableness of
the challenged administrative search in question.
The first factor to consider in the matter of reasonableness is the
nature of the privacy interest upon which the drug testing, which
effects a search within the meaning of Sec. 2, Art. III of the
Constitution, intrudes. In this case, the office or workplace serves
as the backdrop for the analysis of the privacy expectation of the
employees and the reasonableness of drug testing requirement.
The employees privacy interest in an office is to a large extent
circumscribed by the companys work policies, the collective
bargaining agreement, if any, entered into by management and
the bargaining unit, and the inherent right of the employer to
maintain discipline and efficiency in the workplace. Their privacy
expectation in a regulated office environment is, in fine, reduced;
and a degree of impingement upon such privacy has been
upheld.
Just as defining as the first factor is the character of the intrusion
authorized by the challenged law. Reduced to a question form, is
the scope of the search or intrusion clearly set forth, or, as
formulated in Ople v. Torres, is the enabling law authorizing a
search narrowly drawn or narrowly focused?[32]
The poser should be answered in the affirmative. For one, Sec.
36 of RA 9165 and its implementing rules and regulations (IRR),
as couched, contain provisions specifically directed towards
preventing a situation that would unduly embarrass the
employees or place them under a humiliating experience. While
every officer and employee in a private establishment is under the
law deemed forewarned that he or she may be a possible subject
of a drug test, nobody is really singled out in advance for drug
testing. The goal is to discourage drug use by not telling in
advance anyone when and who is to be tested. And as may be
observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is
a narrowing ingredient by providing that the employees concerned
shall be subjected to random drug test as contained in the
companys work rules and regulations x x x for purposes of
reducing the risk in the work place.
For another, the random drug testing shall be undertaken under
conditions calculated to protect as much as possible the
employees privacy and dignity. As to the mechanics of the test,
the law specifies that the procedure shall employ two testing
methods, i.e., the screening test and the confirmatory test,
doubtless to ensure as much as possible the trustworthiness of
the results. But the more important consideration lies in the fact
that the test shall be conducted by trained professionals in
access-controlled laboratories monitored by the Department of
Health (DOH) to safeguard against results tampering and to
ensure an accurate chain of custody.[33] In addition, the IRR issued
by the DOH provides that access to the drug results shall be on
the need to know basis;[34] that the drug test result and the records
shall be [kept] confidential subject to the usual accepted practices

70

to protect the confidentiality of the test results.[35] Notably, RA

9165 does not oblige the employer concerned to report to the
prosecuting agencies any information or evidence relating to the
violation of the Comprehensive Dangerous Drugs Act received as
a result of the operation of the drug testing. All told, therefore, the
intrusion into the employees privacy, under RA 9165, is
accompanied by proper safeguards, particularly against
embarrassing leakages of test results, and is relatively minimal.
To reiterate, RA 9165 was enacted as a measure to stamp out
illegal drug in the country and thus protect the well-being of the
citizens, especially the youth, from the deleterious effects of
dangerous drugs. The law intends to achieve this through the
medium, among others, of promoting and resolutely pursuing a
national drug abuse policy in the workplace via a mandatory
random drug test.[36] To the Court, the need for drug testing to at
least minimize illegal drug use is substantial enough to override
the individuals privacy interest under the premises. The Court can
consider that the illegal drug menace cuts across gender, age
group, and social- economic lines. And it may not be amiss to
state that the sale, manufacture, or trafficking of illegal drugs, with
their ready market, would be an investors dream were it not for
the illegal and immoral components of any of such activities. The
drug problem has hardly abated since the martial law public
execution of a notorious drug trafficker. The state can no longer
assume a laid back stance with respect to this modern-day
scourge. Drug enforcement agencies perceive a mandatory
random drug test to be an effective way of preventing and
deterring drug use among employees in private offices, the threat
of detection by random testing being higher than other
modes. The Court holds that the chosen method is a reasonable
and enough means to lick the problem.
Taking into account the foregoing factors, i.e., the reduced
expectation of privacy on the part of the employees, the
compelling state concern likely to be met by the search, and the
well-defined limits set forth in the law to properly guide authorities
in the conduct of the random testing, we hold that the challenged
drug test requirement is, under the limited context of the case,
reasonable and, ergo, constitutional.
Like their counterparts in the private sector, government officials
and employees also labor under reasonable supervision and
restrictions imposed by the Civil Service law and other laws on
public officers, all enacted to promote a high standard of ethics in
the public service.[37] And if RA 9165 passes the norm of
reasonableness for private employees, the more reason that it
should pass the test for civil servants, who, by constitutional
command, are required to be accountable at all times to the
people and to serve them with utmost responsibility and
efficiency.[38]
Petitioner SJS next posture that Sec. 36 of RA 9165 is
objectionable on the ground of undue delegation of power hardly
commends itself for concurrence. Contrary to its position, the

provision in question is not so extensively drawn as to give

unbridled options to schools and employers to determine the
manner of drug testing. Sec. 36 expressly provides how drug
testing for students of secondary and tertiary schools and
officers/employees of public/private offices should be
conducted. It enumerates the persons who shall undergo drug
testing. In the case of students, the testing shall be in accordance
with the school rules as contained in the student handbook and
with notice to parents. On the part of officers/employees, the
testing shall take into account the companys work rules. In either
case, the random procedure shall be observed, meaning that the
persons to be subjected to drug test shall be picked by chance or
in an unplanned way. And in all cases, safeguards against
misusing and compromising the confidentiality of the test results
are established.
Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to
issue, in consultation with the DOH, Department of the Interior
and Local Government, Department of Education, and
Department of Labor and Employment, among other agencies,
the IRR necessary to enforce the law. In net effect then, the
participation of schools and offices in the drug testing scheme
shall always be subject to the IRR of RA 9165. It is, therefore,
incorrect to say that schools and employers have unchecked
discretion to determine how often, under what conditions, and
where the drug tests shall be conducted.
The validity of delegating legislative power is now a quiet area in
the constitutional landscape.[39] In the face of the increasing
complexity of the task of the government and the increasing
inability of the legislature to cope directly with the many problems
demanding its attention, resort to delegation of power, or
entrusting to administrative agencies the power of subordinate
legislation, has become imperative, as here.
Laserna Petition (Constitutionality of Sec. 36[c], [d],
[f], and [g] of RA 9165)
Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the
Court finds no valid justification for mandatory drug testing for
persons accused of crimes. In the case of students, the
constitutional viability of the mandatory, random, and
suspicionless drug testing for students emanates primarily from
the waiver by the students of their right to privacy when they seek
entry to the school, and from their voluntarily submitting their
persons to the parental authority of school authorities. In the case
of private and public employees, the constitutional soundness of
the mandatory, random, and suspicionless drug testing proceeds
from the reasonableness of the drug test policy and requirement.
We find the situation entirely different in the case of persons
charged before the public prosecutors office with criminal
offenses punishable with six (6) years and one (1) day
imprisonment. The operative concepts in the mandatory drug

71

testing are randomness and suspicionless. In the case of persons

charged with a crime before the prosecutors office, a mandatory
drug testing can never be random or suspicionless. The ideas of
randomness and being suspicionless are antithetical to their being
made defendants in a criminal complaint. They are not randomly
picked; neither are they beyond suspicion. When persons
suspected of committing a crime are charged, they are singled out
and are impleaded against their will. The persons thus charged,
by the bare fact of being haled before the prosecutors office and
peaceably submitting themselves to drug testing, if that be the
case, do not necessarily consent to the procedure, let alone waive
their right to privacy.[40] To impose mandatory drug testing on the
accused is a blatant attempt to harness a medical test as a tool
for criminal prosecution, contrary to the stated objectives of RA
9165. Drug testing in this case would violate a persons right to
privacy guaranteed under Sec. 2, Art. III of the Constitution.
Worse still, the accused persons are veritably forced to
incriminate themselves.
WHEREFORE, the Court resolves to GRANT the petition in G.R.
No. 161658 and declares Sec. 36(g) of RA 9165 andCOMELEC
Resolution No. 6486 as UNCONSTITUTIONAL; and
to PARTIALLY GRANT the petition in G.R. Nos. 157870 and
158633 by declaring Sec. 36(c) and (d) of RA
9165 CONSTITUTIONAL, but declaring its Sec.
36(f) UNCONSTITUTIONAL. All concerned agencies are,
accordingly, permanently enjoined from implementing Sec. 36(f)
and (g) of RA 9165. No costs.

death penalty.
The antecedents are:
On February 18, 1998, upon the complaint of Sally Idanan, an
information was filed against appellant under the name Canor
Sabeniano. Appellant, however, filed a motion for reinvestigation
on the ground that his name is Nicanor Salome and not Canor
Sabeniano.
An amended information was filed on August 26, 1998 accusing
CANOR SABENIANO also known as NICANOR SALOME, of
the crime of RAPE defined and penalized under Article 335 of the
revised Penal Code, as amended by Republic Act 7659,
committed as follows:
That on or about or within the period comprised between July 1,
1997 to July 31, 1997 in the morning, in [B]arangay Lourdes,
[M]unicipality of Pandan, [P]rovince of Catanduanes, Philippines,
within the jurisdiction of the Honorable Court, the said accused,
by means of force and intimidation, and with the use of a bladed
weapon, willfully, unlawfully and feloniously, did lie and succeeded
in having carnal knowledge of SALLY IDANAN, a minor who was
then 13 years old at the time of the commission of the offense.

SO ORDERED.
G.R. No. 169077

against thirteen-year old Sally Idanan, and imposing upon him the

August 31, 2006

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

That the commission of the crime was aggravated by dwelling the

fact that the crime was committed inside the house of the
offended party.
CONTRARY TO LAW. [1]

versus
NICANOR SALOME, Accused-Appellant.

Sally Idanan, fifteen years old, single, and a resident of Lourdes,

Pandan, Catanduanes testified before the trial court that she
personally knew appellant because they used to be neighbors. In
1997, they transferred residence but appellant would frequently

DECISION
AZCUNA, J.:
For review is the Decision rendered by the Court of Appeals on
June 15, 2005 in CA-G.R. CR. No.-H.C. No. 00767, entitled
People of the Philippines v. Nicanor Salome, affirming the
decision, dated April 3, 2001, of the Regional Trial Court of Virac,
Catanduanes, Branch 43, in Criminal Case No. 2536, finding
appellant guilty beyond reasonable doubt of the crime of rape

pass by their place.[2]

Sometime in July of 1997, Sally, then thirteen years old, was
sleeping with her three-year old brother inside their house when
appellant entered their house. She was awakened by the
presence of the latter who, allegedly, was poking a knife at the
base of her neck. While holding the knife with one hand, appellant
undressed her with his other hand. He threatened her that he
would kill her and her family if she would tell anyone about the
incident. After undressing her, appellant forced her to lie down.

72

He removed his shorts and underwear. He then spread her legs

Ma. Luz T. Santos, while referring to the medical report, explained

and inserted his penis into her vagina.

that the hymen has a deep healed laceration at 6:00 oclock

position but she cannot determine as to the time when it was

According to Sally, she just closed her eyes while appellant had

inflicted.[6] Due to the fact that the vaginal canal was still narrow

his way with her. She did not call for help because she was afraid

with prominent rugosities, Sally has not yet given birth although

that nobody would be in the next house which was about 800

she was 18 to 19 weeks pregnant counting from the last day of

meters away.[3]

her menstruation which was on July 5, 1997. On crossexamination, Santos declared that she was uncertain as to the

She cannot remember how long appellant remained on top of her

exact date of sexual intercourse that caused the pregnancy of

but before he left, he reiterated his threat to kill her and her family

Sally, and that said act may have occurred days before or after

if she told anybody of what happened. After that, she would

July 5, 1997 on account of the fact that the life span of an average

frequently see appellant but the latter never spoke to her.

sperm cell lasts for three days.[7]

Fearful for her life and for her familys safety, she did not inform

Evidence for the defense, on the other hand, consisted of the

anyone of the incident. Although it entered her mind that she

testimonies of appellant, Salvador Villarey and Manny Torralba.

could be pregnant, she left her province to work as a domestic

helper in the house of SPO2 Constantino B. Saret in West Crame,

Appellant denied having raped Sally and offered the defense of

San Juan, Manila.

alibi. He claimed that in the month of July 1997, he went fishing at

the sea of Gigmoto, Catanduanes on three different days but

On November 12, 1997, she had a pelvic ultrasound examination

could not exactly remember when. Villarey and Torralba

which confirmed her pregnancy.[4] Upon learning this, she

corroborated the fact that they went fishing with appellant in July

reported the rape incident to the police on November 17, 1997.

of 1997. They maintained, however, that while they had been

She executed a sworn statement and filed a complaint.

appellants fishing companions, they would go their separate

ways after fishing and were not aware of appellants activities

A criminal complaint for rape was initiated before the Municipal

after that.

Circuit Trial Court (MCTC) of Pandan-Caramoran, Pandan,

Catanduanes. Appellant pleaded not guilty to the charge during

On April 3, 2001, the trial court rendered its decision convicting

the arraignment.

appellant of the crime of rape and sentencing him as follows:

Evidence for the prosecution consisted primarily of Sallys

WHEREFORE, finding the accused Nicanor Salome also known

narration of the incident, and the testimony of Ma. Luz T. Santos,

as Canor Sabediano GUILTY beyond reasonable doubt of the

Medico Legal Officer of the Philippine National Police (PNP)

crime of Rape with the use of a deadly weapon, committed inside

Crime Laboratory, on the medico-legal report issued by Dr.

the dwelling of the offended party, as defined and penalized under

Anthony Joselito Llamas[5] who examined Sally.

Article 335 of the Revised Penal Code, as amended by Republic

Act No. 7659, he is hereby sentenced to suffer the penalty of
DEATH, to give monthly support in the sum of Two Thousand
(P2,000.00) Pesos to the offspring of complainant Sally Idanan
born on April 11, 1998, and to indemnify Sally Idanan in the sum
of Fifty Thousand (P50,000.00) Pesos, without subsidiary
imprisonment in case of insolvency.
SO ORDERED.[8]
Due to the imposition of death penalty on appellant, the case was
directly elevated to this Court for review. Subsequently, however,

73

the case was referred to the Court of Appeals for intermediate

In giving credence to the Sallys testimony, the trial court noted

review pursuant to our ruling in People v. Mateo.[9]

that she did not have any improper motive against appellant other
than her desire to tell the truth and obtain redress from the

The Court of Appeals, after reviewing the case, rendered its

criminal act.[12]

Decision on June 15, 2005 affirming the conviction of appellant,

with modifications:

In the commission of rape, it is usually only the rape victim who

can attest to its occurrence,[13] and if the lone testimony of the

WHEREFORE, the Decision dated April 3, 2001 of the trial court

victim is credible, convincing and consistent with human nature

is affirmed subject to the following modifications:

and the normal course of things, it is competent to establish the

guilt of the accused.[14] This is even more so if it involves the

(1)

The award of civil indemnity on the amount of

P50,000.00 is increased to P75,000.00; and,

testimony of a rape victim of tender or immature age such as in

the instant case. Thus, if the victim is a young, immature girl, her
testimony is given credence by the courts[15] because no one

(2)

Appellant is ordered to pay private complainant moral

damages of P75,000.00 and exemplary damages of P25,000.00.

would contrive a rape story, allow an examination of her private

parts and subject herself to scrutiny at a public trial if she is not
motivated solely by a desire to have the culprit apprehended and

Pursuant to A.M. No. 00-5-03-SC (Amendments to the Revised

punished.[16]

Rules of Criminal Procedure to govern Death Penalty Cases)

which took into effect on October 15, 2004, this case is elevated

Appellant asserts that the conduct of private complainant during

and certified to the Supreme Court for its automatic review.

and after the commission of the offense militates against her

credibility because it is inconsistent with human experience. She

SO ORDERED.[10]

did not shout nor offer any resistance as expected of a woman

being sexually abused. She likewise kept the incident to herself

Appellant assigns the following errors:

until she learned of her pregnancy three months later. Appellant

further claims that there is no evidence that he threatened her or

her family or that he prevented her from reporting the incident to

anybody.[17]

THE TRIAL COURT ERRED IN GIVING WEIGHT AND

CREDENCE TO THE UNCONVINCING AND IMPROBABLE

The Court finds nothing incredible in Sallys behavior. She woke

TESTIMONY OF PRIVATE COMPLAINANT SALLY IDANAN;

up with appellant poking a knife at the base of her neck. The act

AND,

of holding a knife, by itself, is strongly suggestive of force or at

least intimidation, and threatening the victim with a knife is

II

sufficient to bring her to submission. The victims failure to shout

for help or resist the sexual advances of the rapist does not

THE TRIAL COURT ERRED IN APPRECIATING DWELLING AS

negate the commission of rape.[18]As noted by the trial court:

AN AGGRAVATING CIRCUMSTANCE.
The fact that the accused did not shout or resist when her shorts
As a rule, the trial courts assessment of the credibility of

and panty were removed because of fear (TSN, Oct. 21, 1999, p.

witnesses is generally accorded the highest degree of weight and

12) does not lessen complainants credibility. To an innocent girl

respect, if not finality, for the reason that the trial judge has the

who was then barely thirteen (13) years old, the threat

unique opportunity to observe the demeanor of witnesses while

engendered in her a well-grounded fear that if she dared resist or

testifying.[11]

frustrate the bestial desires of the accused, she and her family
would be killed. Intimidation is addressed to the mind of the victim
and is, therefore, subjective. It must be viewed in the light of the
victims perception and judgment at the time of the commission of
the crime and not by any hard and fast rule. The workings of the

74

human mind when placed under emotional stress are

is no standard form of human behavioral response when one is

unpredictable and people react differently. In such a given

confronted with a strange, startling or frightful experience.[23]

situation, some may shout; some may faint; and some may be
shocked into sensibility; while others may openly welcome the

Appellant further denies having raped Sally, asserting that he

intrusion. (People v. Cabradilla, 133 SCRA 413 (1984)). The test

went fishing on three occasions in July of 1997. Denial, however,

for its sufficiency under Article 335 of the revised Penal Code is

is inherently a weak defense and cannot prevail over the positive

whether it produces a reasonable fear in the victim that if she

declarations of the victim.[24] For the defense of alibi and denial

resists or does not yield to the bestial demands of the accused,

to prosper, appellant must prove by positive, clear and

that which the latter threatened to do would happen to her, or

satisfactory proof that it was physically impossible for him to have

those dear to her, in this case, her family. Where such degree of

been physically present at the scene of the crime or its immediate

intimidation exists, and the victim is cowed into submission as a

vicinity at the time of its commission.[25]

result thereof, thereby rendering resistance futile, it would be

extremely unreasonable to expect the victim to resist with all her

Here, appellant failed to show that it was physically impossible for

might and strength. And even if some degree of resistance would

him to be at the house of Sally when the crime was committed. As

nevertheless be futile, offering none at all cannot amount to

the trial court aptly held:

consent to the sexual assault. For rape to exist, it is not necessary

that the force or intimidation employed in accomplishing it be so

The defense offered by the accused that he could not have raped

great or of such character as could not be resisted; it is only

the complainant because he went fishing three (3) times in the

necessary that the force or intimidation be sufficient to

month of July 1997 in Sicmil, Gigmoto, Catanduanes (TSN,

consummate the purpose which the accused had in mind. (People

February 8, 2000, p. 3) is sorely inadequate to overcome the

v. Savellano, 57 SCRA 320 (1974)).

evidence adduced by the prosecution relative to his guilt,

considering that his absence for only three (3) days could not

Likewise, Sallys delay in reporting the incident to the authorities

prevent him from committing the offense in the remaining twenty-

is understandable. It is not uncommon for young girls to conceal

eight (28) days of the month. In any event, a probe into the

for some time the assault against their virtue because of the

accuseds alibi readily yields the latters inherent weakness. It is

threats on their lives.[19] Failure, therefore, by the victim to file a

settled that for the defense of alibi to prosper, the accused must

complaint promptly to the proper authorities would not necessarily

establish the physical impossibility for him to have been present

destroy the truth per se of the complaint nor would it impair the

at the scene of the crime at the time of its commission (People v.

credibility of the complainant, particularly if such delay was

Cristobal, G.R. No. 116279, January 29, 1996) In the instant case,

satisfactorily explained.[20] As a matter of fact, delay in reporting

the accused failed to demonstrate such impossibility.

a rape case due to threats is justified.[21] As the Court held in

People v. Ballester:[22]

The allegation in the Information that the offense was committed

within the period comprised between July 1, 1997 to July 31,

Neither can appellant find refuge in complainants failure to

1997, sufficiently informs the accused of the approximate time of

promptly report the sexual assault to her relatives. Long silence

commission of the offense and affords him opportunity to show

and delay in reporting the crime of rape has not always been

that he could not have committed the crime on any of the thirty-

construed as an indication of a false accusation. In fact this

one (31) days of July 1997

principle applies with greater force in this case where the

offended party was barely twelve years old, and was therefore
susceptible to intimidation and threats of physical harm.
Not all rape victims can be expected to act conformably to the
usual expectations of everyone. Different and varying degrees of
behavioral responses is expected in the proximity of, or in
confronting, an aberrant episode. It is settled that different people
react differently to a given situation or type of situation and there

75

Additionally, Manny Torralba, one of the accuseds fishing

death in accordance with Article 335 of the Revised Penal Code,

companions, declared that they went home from fishing everyday

as amended by R.A. No. 7659:

(TSN, February 28, 2001, p. 6) and that every time they went
home from fishing, they parted ways as each went to his own

ARTICLE 335. When and how rape is committed. Rape is

home, and would not know what the accused would be doing

committed by having carnal knowledge of a woman under any of

while he was at his own home (Idem, p. 9). Thus, even in those

the following circumstances:

days when the accused went to fish out at sea, the accuseds
presence in the house of the complainant where the subject

1.

By using force or intimidation;

offense was committed was far from impossible.[26]

2.
The Court notes that appellant does not deny the existence of the

When the woman is deprived of reason or otherwise

unconscious; and

knife during the commission of the rape. This Court sustains the
finding that the trial court did not err in convicting appellant of the

3.

crime of rape perpetrated with the use of a deadly weapon. The

demented.

When the woman is under twelve years of age or is

presentation of the knife is not necessary to his conviction, in light

of the victims unwavering testimony as to how appellant, armed

The crime of rape shall be punished by reclusion perpetua.

with a knife, threatened and raped her.

Whenever the crime of rape is committed with the use of a deadly
This is consistent with this Courts ruling in People v. Degamo:[27]

weapon or by two or more persons, the penalty shall be reclusion

perpetua to death.

It is settled that the non-presentation of the weapon used in the

commission of rape is not essential to the conviction of the

Whenever by reason of or on occasion of the rape, the victim has

accused. The testimony of the rape victim that appellant was

become insane, the penalty shall be death.

armed with a deadly weapon when he committed the crime is

sufficient to establish the fact for so long as the victim is credible.

In addition, and in relation to the second assignment of error, the

It must be stressed that in rape, it is usually only the victim who

crime of rape is aggravated by dwelling.[29]

can attest to its occurrence and that is why courts subject the

Appeals noted:

As the Court of

testimony of the alleged victims to strict scrutiny before relying on

it for the conviction of the accused.

There is no question that the amended information sufficiently

alleged that the commission of the crime was aggravated by

People v. Philippines Vitancur[28] also illustrates this principle:

dwelling the fact that the crime was committed inside the house of
the offended party. Accused-appellant does not dispute that the

The fact that the weapon with which complainant claimed she was

crime was committed inside the victims house. However, he

intimidated by accused-appellant could not be presented in court

posits that the prosecution must prove the absence of provocation

could not impeach private complainants credibility as the weapon

by Sally.

is not essential to the prosecution of rape cases. What is

important is that because of force and intimidation, private

It suffices to state that private complainant categorically testified

complainant was made to submit to the will of accused-appellant.

that she was sleeping inside her house when appellant came and

[T]he test is whether the threat or intimidation

perpetrated the crime. This is proof enough of the absence of

provocation on the part of private complainant. For a sleeping

produces in the mind of a reasonable person fear that if she

thirteen (13) year old barrio girl cannot possibly give any kind of

persists or does not yield to the desires of the accused, the threat

provocation to appellant under the circumstances.

will be carried out.

Since the crime of rape was committed by appellant with the use
Appellant committed the crime of rape with the use of a bladed

of a deadly weapon, punishable by reclusion perpetua to death,

weapon, the imposable penalty of which is reclusion perpetua to

the presence of the aggravating circumstance of dwelling, without

76

the presence of any mitigating circumstance, justified the trial

(a)

courts imposition of the death penalty.[30]

makes use of the nomenclature of the penalties of the Revised

the penalty of reclusion perpetua, when the law violated

Penal Code; or
The above ruling is in accordance with Article 63 of the Revised
Penal Code which provides that in all cases in which the law

(b)

the penalty of life imprisonment, when the law violated

prescribes a penalty composed of two indivisible penalties, the

does not make use of the nomenclature of the penalties of the

greater penalty shall be applied when an aggravating

Revised Penal Code.

circumstance, such as dwelling in this case, is present in the

commission of the offense.

SECTION 3. Persons convicted of offenses punished with

reclusion perpetua, or whose sentences will be reduced to

In People v. Alfeche,[31] wherein the complainant, employed as a

reclusion perpetua, by reason of this Act, shall not be eligible for

domestic helper, was inside the house of her employer when she

parole under Act No. 4103, otherwise known as the Indeterminate

was raped by the appellant who was armed with a deadly

Sentence Law, as amended.

weapon, the Court considered dwelling as an aggravating

circumstance in convicting the latter, and affirmed the trial courts

After a thorough review of the records, the Court agrees with the

imposition of the greater penalty, which is death.

evaluation of the evidence by the Regional Trial Court and the

Court of Appeals. Pursuant to the new law, even as the Court

The Court of Appeals, in affirming the conviction of herein

sustains the conviction of appellant, the penalty imposed upon

appellant and the imposition of the death penalty, concluded that:

him should be reduced to reclusion perpetua, but appellant shall

not be eligible for parole under the Indeterminate Sentence Law.

The Court, therefore, has no recourse but to apply the law and
affirm the trial courts imposition of the death penalty. This is

The Court, likewise, affirms the civil indemnity awarded by the

without prejudice, of course, to the provisions of section 25, R.A.

Court of Appeals to Sally in accordance with the ruling in People

7659 regarding the possible exercise of the pardoning power of

v. Sambrano[34] which states:

the Office of the President upon the finality of the death sentence.
[32]

As to damages, we have held that if the rape is perpetrated with

any of the attending qualifying circumstances that require the

In light, however, of the passage of Republic Act No. 9346,

imposition of the death penalty, the civil indemnity for the victim

entitled An Act Prohibiting the Imposition of Death Penalty in the

shall be P75,000 . Also, in rape cases, moral damages are

Philippines, which was signed into law by President Gloria

awarded without the need of proof other than the fact of rape

Macapagal-Arroyo on June 24, 2006, the imposition of the death

because it is assumed that the victim has suffered moral injuries

penalty has been prohibited.[33] The law provides:

entitling her to such an award. However, the trial courts award of

P50,000.00 as moral damages should also be increased to

SECTION 1. The imposition of the penalty of death is hereby

P75,000 pursuant to current jurisprudence on qualified rape.

prohibited. Accordingly, Republic Act No. Eight Thousand One

Lastly, exemplary damages in the amount of P25,000.00 is also

Hundred Seventy-Seven (R.A. No. 8177), otherwise known as the

called for, by way of example, and to protect the young from

Act Designating Death by Lethal Injection, is hereby repealed.

sexual abuse.

Republic Act No. Seven Thousand Six Hundred Fifty-Nine (R.A.

No. 7659), otherwise known as the Death Penalty Law, and all

It should be noted that while the new law prohibits the imposition

other laws, executive orders and decrees, insofar as they impose

of the death penalty, the penalty provided for by law for a heinous

the death penalty are hereby repealed or amended accordingly.

offense is still death and the offense is still heinous.

Consequently, the civil indemnity for the victim is still P75,000.

SECTION 2. In lieu of the death penalty, the following shall be

On the other hand, the automatic appeal in cases when the trial

imposed:

court imposes the death penalty will henceforth not apply, since
its imposition is now prohibited, so that there is a need to perfect
an appeal, if appeal is desired, from a judgment of conviction for

77

an offense where the penalty imposed is reclusion perpetua in

Republic Act No. 9346 prohibiting the imposition of the death

lieu of the death penalty pursuant to the new law prohibiting its

penalty, appellant is hereby sentenced to reclusion perpetua

imposition.

without parole.

WHEREFORE, the Decision of the Court of Appeals in CA-G.R.

No costs.

CR.

No.-H.C.

No.

00767,

dated June 15,

2005,

is

hereby AFFIRMED insofar as the conviction of appellant and the

SO ORDERED.

amount of damages are concerned. The sentence that shall be

imposed upon appellant, however, is MODIFIED. In view of

Adolfo Azcuna, J.

78