b. Bouncing Checks Law1 plus Administrative Circular No. 12-2000 Re: Penalty for Violation of B.P.

222 and Administrative Circular No. 13-2001 Re: Clarification of Admin Circular No. 12-20003 i) Punishable acts Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment. Any person who, having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable.4 ii) Evidence of knowledge of insufficient funds The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within (5) banking days after receiving notice that such check has not been paid by the drawee.5 iii) Preference of imposition of fine Where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate penalty. The determination of whether the circumstances warrant the imposition of a fine alone rests solely upon the Judge.6

1 2

B.P. Blg. 22 see Reference 3 ibid 4 Sec. 1. 5 Sec. 2. 6 Administrative Circular No. 13-2001, February 14, 2001. See Reference

Bouncing Checks Law (B.P. 22) ADMINISTRATIVE CIRCULAR NO. 12-2000 February 21, 2001 RE : PENALTY FOR VIOLATION OF B.P. BLG. 22 Section 1 of B.P. Blg. 22 (An Act Penalizing the Making or Drawing and Issuance of a Check Without Sufficient Funds for Credit and for Other Purposes) imposes the penalty of imprisonment of not less than thirty (30) days but not more than one (1) year or a fine of not less than but not more than double the amount of the check, which fine shall in no case exceed P200,000, or both such fine and imprisonment at the discretion of the court. In its decision in Eduardo Vaca, v. Court of Appeals (G.R. No. 131714, 16 November 1998; 298 SCRA 656, 664) the Supreme Court (Second Division) per Mr. Justice V. Mendoza, modified the sentence imposed for violation of B.P. Blg. 22 by deleting the penalty of imprisonment and imposing only the penalty of fine in an amount double the amount of the check. In justification thereof, the Court said: Petitioners are first-time offenders. They are Filipino entrepreneurs who presumably contribute to the national economy. Apparently, they brought this appeal, believing in all good faith, although mistakenly that they had not committed a violation of B.P. Blg. 22. Otherwise, they could simply have accepted the judgment of the trial court and applied for probation to evade a prison term. It would best serve the ends of criminal justice if in fixing the penalty within the range of discretion allowed by Section 1, par. 1, the same philosophy underlying the Indeterminate Sentence Law is observed, namely, that of redeeming valuable human material and preventing unnecessary deprivation f personal liberty and economic usefulness with due regard to the protection of the social order. In this case, we believe that a fine in an amount equal to double the amount of the check involved is an appropriate penalty to impose on each of the petitioners. In the recent case of Rosa Lim v. People of the Philippines (G. R. No. 130038, 18 September 2000), the Supreme Court en banc, applying Vaca also deleted the penalty of imprisonment and sentenced the drawer of the bounced check to the maximum of the fine allowed by B.P. Blg. 22, i.e., P200,000, and concluded that such would best serve the ends of criminal justice. All courts and judges concerned should henceforth take note of the foregoing policy of the Supreme Court on the matter of the imposition of penalties for violations of B.P. Blg. 22. The Court Administrator shall cause the immediate dissemination of this Administrative Circular to all courts and judges concerned. This Administrative Circular, referred to and approved by the Supreme Court en banc, shall take effect upon its issuance.

ADMINISTRATIVE CIRCULAR NO. 13-2001 February 14, 2001. TO : ALL JUDGES SUBJECT : CLARIFICATION OF ADMINISTRATIVE CIRCULAR NO. 12-2000 ON THE PENALTY FOR VIOLATION OF BATAS PAMBANSA BLG. 22, OTHERWISE KNOWN AS THE BOUNCING CHECK LAW. Clarification has been sought by concerned Judges and other parties regarding the operation of Administrative Circular 12-2000 issued on 21 November 2000. In particular, queries have been made regarding the authority of Judges to: 1. Impose the penalty of imprisonment for violations of Batas Pambansa Blg. 22; and 2. Impose subsidiary imprisonment in the event that the accused who is found guilty of violating the provisions of B.P. Blg. 22, is unable to pay the fine which he is sentenced to pay considering that Administrative Circular No. 12-2000 adopted the rulings in Eduardo Vaca v. Court of Appeals (G.R. No. 131714, 16 November 1998, 298 SCRA 656) and Rosa Lim v. People of the Philippines (G.R. No. 130038, 18 September 2000) as a policy of the Supreme Court on the matter of the imposition of penalties for violations of B.P. Blg. 22, without mentioning whether subsidiary imprisonment could be resorted to in case of the accused's inability to pay the fine. The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove imprisonment as an alternative penalty, but to lay down a rule of preference in the application of the penalties provided for in B.P. Blg. 22. The pursuit of this purpose clearly does not foreclose the possibility of imprisonment for violations of B.P. Blg. 22. Neither does it defeat the legislative intent behind the law. Thus, Administrative Circular No. 12-2000 establishes a rule of preference in the application of the penal provisions of B.P. Blg. 22 such that where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate penalty. Needless to say, the determination of whether the circumstances warrant the imposition of a fine alone rests solely upon the Judge. Should the Judge decide that imprisonment is the more appropriate penalty, Administrative Circular No. 12-2000 ought not be deemed a hindrance. It is, therefore, understood that: 1. Administrative Circular 12-2000 does not remove imprisonment as an alternative penalty for violations of B.P. Blg. 22; 2. The Judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice; 3. Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code provisions on subsidiary imprisonment. The issuance of this Administrative Circular was authorized by the Court En Banc in A.M. No. 00-11-01-SC at its session of 13 February 2001.

Bouncing Checks (B.P. 22) Some people still have this misplaced confidence in the deterrent effect of Batas Pambansa (BP) Blg. 22, also known as the Bouncing Checks Law (full text here). Here are some things a layman should know: 1. The issuer is not automatically liable simply because the check bounced. A check generally bounces when dishonored upon presentment (reasons include, account closed, drawn against insufficient funds or DAIF). However, it is indispensable that the issuer must be notified in WRITING about the fact of dishonor, and he has 5 days from receipt to pay the value of the check or make arrangements for the payment thereof. (Please see update on this matter at the Philippine e-Legal Forum). 2. Filing fees are generally not required for criminal cases. For B.P. 22 cases, however, the complainant is required to pay the filing fees (based on the value of the check/s and the damages claimed, just like in civil cases) upon filing of the case in court. 3. One major deterrent against bouncing checks is the threat of a warrant of arrest being issued once the criminal case is filed in court. This is no longer true. No warrant of arrest is issued unless the accused fails to appear when required by the court. 4. Even if a criminal case under B.P. 22 is filed, the court cant issue a hold-departure order (HDO). All violations of the Bouncing Checks Law, regardless of the amount involved, are filed only with the municipal/metropolitan trial courts. These courts cannot issue an HDO. 5. Courts have the discretion of imposing: (a) imprisonment only; (b) fine only; OR (c) both. It is entirely possible that only a fine, without imprisonment, is imposed.

PEOPLE v GROSPE 157 SCRA 154. MELENCIO-HERRERA ; January 20, 1988

FACTS - Manuel Parulan is a wholesale dealer of San Miguel Corp (SMC). He issued two checks in favor of SMC (P86,071.20 and P11,918.80) that were dishonored for insufficiency of funds. - The checks were received at the SMC Bulacan branch, then forwarded to the SMC Regional Office in San Fernando, Pampanga. - SMC Finance Officer deposited the check in BPI San Fernando, Pampanga branch. - (Parulans bank is Planters Development Bank in Bulacan)

- SMC filed for violation of BP22 (1st check) and for estafa under par. 2d7 (2nd check) with the RTC in Pampanga. - After hearing the facts and evidence, Judge Grospe of the Pampanga RTC dismissed the case because he said that the two essential elements, deceit and damage, of the offenses charged occurred and took place in Bulacan. DECEIT took place when Parulan gave the checks to SMC in Bulacan, with the false assurance that it had sufficient funds. DAMAGE occurred at the moment the checks issued by the accused were dishonored by the Planters Development Bank, the drawee bank, at Santa Maria, Bulacan which received them from the BPI, San Fernando, Pampanga branch for clearing purpose.

ISSUES 1. WON any of the essential elements of the offenses charged occurred or took place within the jurisdiction of RTC Pampanga. 2. WON this petition for Certiorari places accused in double jeopardy.

HELD 1. YES - A person charged with a transitory crime may be validly tried in any municipality or province where the offense was in part committed. In transitory or continuing offenses in which some acts material and essential to the crime and requisite to its consummation occur in one province and some in another, the Court of either province has jurisdiction to try the case, it being understood that the first Court taking cognizance of the Case will exclude the others. ESTAFA under par 2d - Elements: (1) Deceit took place in Pampanga, where it was uttered and delivered. The rule is that the issuance as well as the delivery of the check must be to a person who takes it as a holder, which means the payee or indorsee of a bill or note, who is in possession of it, or the bearer, thereof, who in this case is the Financial Officer of SMC (2) Damage took place in Bulacan, where the check was dishonored by the drawee bank. - Therefore, jurisdiction may be entertained by either the Bulacan or the Pampanga court. BP 22 violation

Art. 315, par. 2(d) states: 'By postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check
7

- In respect of the Bouncing Checks Case, the offense also appears to be continuing in nature. It is true that the offense is committed by the very fact of its performance; and that the Bouncing Checks Law penalizes not only the fact of dishonor of a check but also the act of making or drawing and issuance of a bouncing check. The case, therefore, could have been filed also in Bulacan. The determinative factor (in determining venue) is the place of the issuance of the check. However, it is likewise true that knowledge on the part of the maker or drawer of the check of the insufficiency of his funds, which is an essential ingredient of the offense is by itself a continuing eventuality, whether the accused be within one territory or another. Accordingly, jurisdiction to take cognizance of the offense also lies in the Regional Trial Court of Pampanga. - Jurisdiction or venue is determined by the allegations in the Information, which are controlling. The Information filed herein specifically alleges that the crime was committed in San Fernando, Pampanga, and, therefore, within the jurisdiction of the Court below. 2. NO The case was dismissed not on merits but on the erroneous conclusion of the judge that his court had no jurisdiction over the case. The dismissal being null and void, the proceedings before the RTC cant be said to have been lawfully terminated. Therefore, there is no second proceeding to place the accused in double jeopardy. Dispositive Petition granted. Judge is ordered to reassume jurisdiction over Criminal Cases Nos. 2800 and 2813 of his Court and to render judgment of either conviction or acquittal in accordance with the evidence already adduced during the joint trial of said two cases. RODRIGUEZ v PONFERRADA 465 SCRA 338 PANGANIBAN; July 29, 2005

NATURE Petition for Certiorari seeking to reverse the July 27, 2002 Order of the RTC of Quezon City: WHEREFORE, the appearance of a private prosecutor shall be allowed upon payment of the legal fees for these estafa cases pending before this Court. FACTS - Honorable Assistant City Prosecutor Rossana S. Morales-Montojo of Quezon City Prosecutors Office issued her Resolution: there being PROBABLE CAUSE to charge respondent for ESTAFA under Article 315 paragraph 2(d) as amended by PD 818 and for Violation of Batas Pambansa Blg. 22, it is respectfully recommended that the attached Information be approved and filed in Court. - As a consequence thereof, separate informations were separately filed against herein [p]etitioner before proper [c]ourts, for Estafa and [v]iolation of Batas Pambansa Blg. 22

- petitioner through counsel filed in open court before the [p]ublic [r]espondent an Opposition to the Formal Entry of Appearance of the Private Prosecutor - The [p]ublic [r]espondent court during the said hearing noted the Formal Entry of Appearance of Atty. Felix R. Solomon as [p]rivate [p]rosecutor as well as the Opposition filed thereto by herein [p]etitioner. - Ruling of the Trial Court Noting petitioners opposition to the private prosecutors entry of appearance, the RTC held that the civil action for the recovery of civil liability arising from the offense charged is deemed instituted, unless the offended party (1) waives the civil action, (2) reserves the right to institute it separately, or (3) institutes the civil action prior to the criminal action. Considering that the offended party had paid the corresponding filing fee for the estafa cases prior to the filing of the BP 22 cases with the Metropolitan Trial Court (MeTC), the RTC allowed the private prosecutor to appear and intervene in the proceedings.

ISSUE WON a private prosecutor can be allowed to intervene and participate in the proceedings of the aboveentitled estafa cases for the purpose of prosecuting the attached civil liability arising from the issuance of the checks involved which is also subject mater of the pending B.P. 22 cases

HELD YES. Settled is the rule that the single act of issuing a bouncing check may give rise to two distinct criminal offenses: estafa and violation of Batas Pambansa Bilang 22 (BP 22). The Rules of Court allow the offended party to intervene via a private prosecutor in each of these two penal proceedings. However, the recovery of the single civil liability arising from the single act of issuing a bouncing check in either criminal case bars the recovery of the same civil liability in the other criminal action. While the law allows two simultaneous civil remedies for the offended party, it authorizes recovery in only one. In short, while two crimes arise from a single set of facts, only one civil liability attaches to it. Reasoning - Petitioner theorizes that the civil action necessarily arising from the criminal case pending before the MTC for violation of BP 22 precludes the institution of the corresponding civil action in the criminal case for estafa now pending before the RTC. She hinges her theory on the following provisions of Rules 110 and 111 of Rules of Court. - Based on the foregoing rules, an offended party may intervene in the prosecution of a crime, except in the following instances: (1) when, from the nature of the crime and the law defining and punishing it, no civil liability arises in favor of a private offended party; and (2) when, from the nature of the offense, the offended parties are entitled to civil indemnity, but (a) they waive the right to institute a civil action, (b) expressly reserve the right to do so or (c) the suit has already been instituted. In any of these instances, the private complainants interest in the case disappears and criminal prosecution becomes the sole

function of the public prosecutor. None of these exceptions apply to the instant case. Hence, the private prosecutor cannot be barred from intervening in the estafa suit. True, each of the overt acts in these instances may give rise to two criminal liabilities -- one for estafa and another for violation of BP 22. But every such act of issuing a bouncing check involves only one civil liability for the offended party, who has sustained only a single injury. - criminal liability will give rise to civil liability only if the same felonious act or omission results in damage or injury to another and is the direct and proximate cause thereof. Damage or injury to another is evidently the foundation of the civil action. - Thus, the possible single civil liability arising from the act issuing a bouncing check can be the subject of both civil actions deemed instituted with the estafa case and the BP 22 violation prosecution. On Election of Remedies - In its broad sense, election of remedies refers to the choice by a party to an action of one of two or more coexisting remedial rights, where several such rights arise out of the same facts, but the term has been generally limited to a choice by a party between inconsistent remedial rights, the assertion of one being necessarily repugnant to, or a repudiation of, the other. In its more restricted and technical sense, the election of remedies is the adoption of one of two or more coexisting ones, with the effect of precluding a resort to the others. - no binding election occurs before a decision on the merits is had or a detriment to the other party supervenes - it was not the intent of the special rule to preclude the prosecution of the civil action that corresponds to the estafa case, should the latter also be filed. The crimes of estafa and violation of BP 22 are different and distinct from each other. There is no identity of offenses involved, for which legal jeopardy in one case may be invoked in the other. The offenses charged in the informations are perfectly distinct from each other in point of law, however nearly they may be connected in point of fact - In promulgating the Rules, this Court did not intend to leave the offended parties without any remedy to protect their interests in estafa cases. Its power to promulgate the Rules of Court is limited in the sense that rules shall not diminish, increase or modify substantive rights. Private complainants intervention in the prosecution of estafa is justified not only for the prosecution of her interests, but also for the speedy and inexpensive administration of justice as mandated by the Constitution. DISPOSITION Petition is DISMISSED and the assailed order AFFIRMED FULE v CA 162 SCRA 446 MELENCIO-HERRERA ; June 22, 1988

NATURE

Petition for Review on Certiorari of the Decision of the CA

FACTS -Appellate Court affirmed the judgment of the RTC of Lucena City that convicted Fule of Violation of BP 22 (The Bouncing Checks Law) on the basis of the Stipulation of Facts entered into between the prosecution and the defense during the pre-trial conference in the Trial Court. -Only the prosecution presented its evidence. Petitioner-appellant waived the right to present evidence and submitted a Memorandum confirming the Stipulation of Facts. The Trial Court convicted petitionerappellant. -On appeal, respondent Appellate Court upheld the Stipulation of Facts and affirmed the judgment of conviction. 1

ISSUE WON CA erred in affirming the decision of the RTC convicting the petitioner of the offense charged, despite the cold fact that the basis of the conviction was based solely on the stipulation of facts made during the pre-trial on August 8, 1985, which was not signed by the petitioner, nor by his counsel

HELD YES. The CA committed a mistake. -The 1985 Rules on Criminal Procedure, which became effective on January 1, 1985, applicable to this case since the pre-trial was held on August 8, 1985, provides: "SEC. 4. Pre-trial agreements must be signed. No agreement or admission made or entered during the pre-trial conference shall be used in evidence against the accused unless reduced to writing and signed by him and his counsel." (Rule 118) The Rule is mandatory. Under the rule of statutory construction, negative words and phrases are to be regarded as mandatory while those in the affirmative are merely directory (McGee vs. Republic). The use of the term "shall" further emphasizes its mandatory character and means that it is imperative, operating to impose a duty which may be enforced (Bersabal vs. Salvador). And more importantly, penal statutes whether substantive and remedial or procedural are, by consecrated rule, to be strictly applied against the government and liberally in favor of the accused (People vs. Terrado). -The conclusion is inevitable, therefore, that the omission of the signature of the accused and his counsel, as mandatorily required by the Rules, renders the Stipulation of Facts inadmissible in evidence. The fact that the lawyer of the accused, in his memorandum, confirmed the Stipulation of Facts does not cure the defect because Rule 118 requires both the accused and his counsel to sign the

Stipulation of Facts. What the prosecution should have done, upon discovering that the accused did not sign the Stipulation of Facts, as required by Rule 118, was to submit evidence to establish the elements of the crime, instead of relying solely on the supposed admission of the accused in the Stipulation of Facts. Without said evidence independent of the admission, the guilt of the accused cannot be deemed established beyond reasonable doubt. -Consequently, under the circumstances obtaining in this case, the ends of justice require that evidence be presented to determine the culpability of the accused. When a judgment has been entered by consent of an attorney without special authority, it will sometimes be set aside or reopened (Natividad vs. Natividad). Dispositive WHEREFORE, the judgment of respondent Appellate Court is REVERSED and this case is hereby ordered RE-OPENED and REMANDED to the appropriate Branch of the Regional Trial Court of Lucena City, for further reception of evidence. SO ORDERED. HUN HYUNG PARK v EUNG WON CHOI CARPIO-MORALES; February 12, 2007

FACTS - Eung Won Choi, was charged for violation of BP 22, otherwise known as the Bouncing Checks Law, for issuing PNB Check No. 0077133 postdated August 28, 1999 in the amount of P1,875,000 which was dishonored for having been drawn against insufficient funds. He pleaded not guilty. - After the prosecution rested its case, respondent filed a Motion for Leave of Court to File Demurrer to Evidence to which he attached his Demurrer, asserting that the prosecution failed to prove that he received the notice of dishonor, hence, the presumption of the element of knowledge of insufficiency of funds did not arise. - (2/27/03) The MeTC of Makati, Branch 65 granted the demurrer and dismissed the case. prosecutions motion for reconsideration was denied. The

- Park appealed the civil aspect of the case to the RTC of Makati, contending that the dismissal of the criminal case should not include its civil aspect. The RTC held that while the evidence presented was insufficient to prove Chois criminal liability, it did not altogether extinguish his civil liability. It accordingly granted Parks appeal and ordered Choi to pay him P1,875,000 with legal interest. - Upon Chois motion for reconsideration, however, the RTC set aside its decision and ordered the remand of the case to the MeTC for further proceedings, so that Choi may adduce evidence on the civil aspect of the case. Parks motion for reconsideration of the remand of the case having been denied, he elevated the case to the CA which dismissed his petition.

ISSUES

10

1. WON the CA erred in dismissing the petition for not fully complying with verification requirements 2. WON the CA erred in dismissing the petition on the ground that it was not accompanied by copies of certain pleadings and other material portions of the record as would support the allegations of the petition 3. WON the CA erred in dismissing the petition for failure to implead the People of the Philippines as a party 4. WON the respondent has a right to present evidence on the civil aspect of the case in view of his demurrer

HELD 1. NO Ratio Verification is not an empty ritual or a meaningless formality. Its import must never be sacrificed in the name of mere expedience or sheer caprice. For what is at stake is the matter of verity attested by the sanctity of an oath to secure an assurance that the allegations in the pleading have been made in good faith, or are true and correct and not merely speculative. Reasoning - Section 4 of Rule 7 of the RoC: Verification Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records. - A pleading required to be verified which contains a verification based on information and belief, or upon knowledge, information and belief, or lacks a proper verification shall be treated as an unsigned pleading. - Park argues that the word or is a disjunctive term signifying disassociation and independence, hence, he chose to affirm in his petition he filed before the court a quo that its contents are true and correct of my own personal knowledge, and not on the basis of authentic documents. On the other hand, Choi counters that the word or may be interpreted in a conjunctive sense and construed to mean as and, or vice versa, when the context of the law so warrants. - A pleading may be verified under either of the two given modes or under both. The veracity of the allegations in a pleading may be affirmed based on either ones own personal knowledge or on authentic records, or both, as warranted. The use of the preposition or connotes that either source qualifies as a sufficient basis for verification and, needless to state, the concurrence of both sources is more than sufficient. Bearing both a disjunctive and conjunctive sense, this parallel legal signification avoids a

11

construction that will exclude the combination of the alternatives or bar the efficacy of any one of the alternatives standing alone. - However, the range of permutations is not left to the pleaders liking, but is dependent on the surrounding nature of the allegations which may warrant that a verification be based either purely on personal knowledge, or entirely on authentic records, or on both sources. Authentic records as a basis for verification bear significance in petitions where the greater portions of the allegations are based on the records of the proceedings in the court of origin, and not solely on the personal knowledge of the petitioner. - To sustain petitioners explanation that the basis of verification is a matter of simple preference would trivialize the rationale and diminish the resoluteness of the rule. It would play on predilection and pay no heed in providing enough assurance of the correctness of the allegations. 2. NO Ratio Procedural rules are tools designed to facilitate the adjudication of cases. Courts and litigants alike are thus enjoined to abide strictly by the rules. And while the Court, in some instances, allows a relaxation in the application of the rules, this, we stress, was never intended to forge a bastion for erring litigants to violate the rules with impunity. The liberality in the interpretation and application of the rules applies only in proper cases and under justifiable causes and circumstances. While it is true that litigation is not a game of technicalities, it is equally true that every case must be prosecuted in accordance with the prescribed procedure to insure an orderly and speedy administration of justice. Reasoning - The materiality of those documents is very apparent since the civil aspect of the case, from which Park is appealing, was likewise dismissed by the trial court on account of the same Demurrer. The Rules require that the petition must be accompanied by clearly legible duplicate original or true copies of the judgments or final orders of both lower courts, certified correct by the clerk of court [Sec 2(d) Rule 42]. - The only duplicate original or certified true copies attached as annexes to the petition are the RTC Order granting respondents MFR and the RTC Order denying petitioners MFR. The copy of the September 11, 2003 RTC Decision, which petitioner prayed to be reinstated, is not a certified true copy and is not even legible. Petitioner later recompensed though by appending to his MFR a duplicate original copy. - While petitioner averred before the CA in his MFR that the February 27, 2003 MeTC Order was already attached to his petition as Annex G, Annex G bares a replicate copy of a different order. It was to this Court that petitioner belatedly submitted an uncertified true copy of the said MeTC Order as an annex to his Reply to respondents Comment. The copy of the other MeTC Order, dated May 5, 2003, which petitioner attached to his petition before the CA is similarly uncertified as true. Since both Orders were adverse to him even with respect to the civil aspect of the case, petitioner was mandated to submit them in the required form. 3. YES Reasoning

12

- The MeTC acquitted respondent. As a rule, a judgment of acquittal is immediately final and executory and the prosecution cannot appeal the acquittal because of the constitutional prohibition against double jeopardy. Either the offended party or the accused may, however appeal the civil aspect of the judgment despite the acquittal of the accused. The public prosecutor has generally no interest in appealing the civil aspect of a decision acquitting the accused. The acquittal ends his work. The case is terminated as far as he is concerned. The real parties in interest in the civil aspect of a decision are the offended party and the accused. 4. YES Reasoning - In case of a demurrer to evidence filed with leave of court, the accused may adduce countervailing evidence if the court denies the demurrer. Such denial bears no distinction as to the two aspects of the case because there is a disparity of evidentiary value between the quanta of evidence in such aspects of the case. In other words, a court may not deny the demurrer as to the criminal aspect and at the same time grant the demurrer as to the civil aspect, for if the evidence so far presented is not insufficient to prove the crime beyond reasonable doubt, then the same evidence is likewise not insufficient to establish civil liability by mere preponderance of evidence. - On the other hand, if the evidence so far presented is insufficient as proof beyond reasonable doubt, it does not follow that the same evidence is insufficient to establish a preponderance of evidence. For if the court grants the demurrer, proceedings on the civil aspect of the case generally proceed. The only recognized instance when an acquittal on demurrer carries with it the dismissal of the civil aspect is when there is a finding that the act or omission from which the civil liability may arise did not exist. Absent such determination, trial as to the civil aspect of the case must perforce continue. - In the instant case, the MeTC granted the demurrer and dismissed the case without any finding that the act or omission from which the civil liability may arise did not exist. Choi did not assail the RTC order of remand. He thereby recognized that there is basis for a remand. - Park posits that Choi waived his right to present evidence on the civil aspect of the case (1) when the grant of the demurrer was reversed on appeal, citing Section 1 of Rule 33, and (2) when respondent orally opposed petitioners motion for reconsideration pleading that proceedings with respect to the civil aspect of the case continue. - Petitioners citation of Section 1 of Rule 33 is incorrect. Where a court has jurisdiction over the subject matter and over the person of the accused, and the crime was committed within its territorial jurisdiction, the court necessarily exercises jurisdiction over all issues that the law requires it to resolve. One of the issues in a criminal case being the civil liability of the accused arising from the crime, the governing law is the Rules of Criminal Procedure, not the Rules of Civil Procedure which pertains to a civil action arising from the initiatory pleading that gives rise to the suit. - As for petitioners attribution of waiver to respondent, it cannot be determined with certainty from the records the nature of Chois alleged oral objections to Parks motion for reconsideration of the grant of the demurrer to evidence. Any waiver of the right to present evidence must be positively demonstrated.

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Any ambiguity in the voluntariness of the waiver is frowned upon; hence, courts must indulge every reasonable presumption against it. Dispositive Petition is DENIED. BATAS PAMBANSA BLG. 22 BOUNCING CHECKS LAW

ACTS PUNISHABLE: a. any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank, for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds, or credit, or would have been dishonored for the same reason had not the drawee, without any valid reason, ordered the bank to stop payment. b. Any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety days from date appearing thereon, for which reason, it is dishonored by the drawee bank. HOW TO ESTABLISH GUILT OF ACCUSED IN BP 22 To establish her guilt, it is indispensable that the checks she issued for which she was subsequently charged, be offered in evidence because the gravamen of the offense charged is the act of knowingly issuing a check with insufficient funds. Clearly, it was error to convict complainant on the basis of her letter alone. Nevertheless, despite this incorrect interpretation of a rule on evidence, we do not find the same as sufficiently constitutive of the charges of gross ignorance of the law and of knowingly rendering an unjust decision. Rather, it is at most an error in judgment, for which, as a general rule, he cannot be held administratively liable. In this regard, we reiterate the prevailing rule in our jurisdiction as established by current jurisprudence. (Gutierrez v Pallatao; 8/8/98)

NOTICE, AN INDISPENSABLE REQUISITE FOR PROSECUTION Section 3 of BP 22 requires that the holder of the check or the drawee bank, must notify the drawer of the check that the same was dishonored, if the same is presented within ninety days from date of issuance, and upon notice the drawer has five days within which to make arrangements for the payment of the check or pay the same in full.

DUTY OF THE DRAWEE BANK The drawee bank has the duty to cause to be written, printed or stamped in plain language thereon, or

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attached thereto the reason for the drawees dishonor or refusal to pay the same. If the drawee bank fails to do so, prosecution for violation of BP 22 may not prosper. RULE IN CASE OF DISHONOR DUE TO STOP PAYMENT The drawee bank has not only the duty to indicate that the drawer stopped the payment and the reason for the stop payment. The drawee bank is further obligated to state whether the drawer of the check has sufficient funds in the bank or not.

AGREEMENT OF PARTIES REGARDING THE CHECK IS NOT A DEFENSE In the case of People vs Nitafan, 215 SCRA, the agreement of the parties in respect to the issuance of the check is inconsequential or will not affect the violation of BP 22, if the check is presented to the bank and the same was dishonored due to insufficiency of funds.

CHECKS ISSUED IN PAYMENT OF INSTALLMENT Checks issued in payment for installment covered by promissory note and said checks bounced, the drawer is liable if the checks were drawn against insufficient funds, especially that the drawer, upon signing of the promissory note, closed his account. Said check is still with consideration. (Caram Resources v. Contreras) In this case, the Judge was even held administratively liable.

CHECK DRAWN AGAINST A DOLLAR ACCOUNT. RULE: A check drawn against a dollar account in a foreign country is still violative of the provisions of BP 22 so long as the check is issued, delivered or uttered in the Philippines, even if the same is payable outside of the Philippines (De Villa v. CA) GUARANTEE CHECKS, DRAWER, STILL LIABLE The mere act of issuing a worthless check is punishable. Offender cannot claim good faith for it is malum prohibitum. In the case of Magno vs CA, when accused issued a check as warranty deposit for lease of certain equipment, even knowing that he has no funds or insufficient funds in the bank is not liable, if the lessor of the equipment pulled out the loaned equipment. The drawer has no obligation to make good the check because there is no more deposit to guaranty.

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ISSUANCE OF GUARANTEE CHECKS WHICH WAS DISHONORED IN VIOLATION AND PURPOSE OF THE LAW The intention of the framers of BP 22 is to make a mere act of issuing a worthless check malum prohibitum. In prosecutions for violation of BP 22, therefore, prejudice or damage is not prerequisite for conviction. The agreement surrounding the issuance of the checks need not be first locked into, since the law has provided that the mere issuance of any kind of check; regardless of the intent of the parties, i.e., whether the check is intended merely to serve as guarantee or deposit, but which checks is subsequently dishonored, makes the person who issued the check liable. (Lazaro vs CA, et al., GR 105461).

CAN A PERSON BE HELD LIABLE FOR ISSUING A CHECK WITH SUFFICIENT FUNDS FOR VIOLATION OF BP 22? Yes. Paragraph 2 of Section 1 of BP 22 provides: The same penalty shall be imposed upon any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of 90 days from the date appearing thereon, for which reason, it is dishonored by the drawee bank.

RULE ON RENDERING UNJUST JUDGMENT, IGNORANCE, ETC. BY A JUDGE In the case of De la Cruz vs. Concepcion this Court declared: "Mere errors in the appreciation of evidence, unless so gross and patent as to produce an inference of ignorance or bad faith, or of knowing rendition of an unjust decision, are irrelevant and immaterial in an administrative proceeding against him. No one, called upon to try facts or interpret the law in the process of administering justice, can be infallible in his judgment. All that is expected of him is that he follow the rules prescribed to ensure a fair and impartial hearing, assess the different factors that emerge therefrom and bear on the issues presented, and on the basis of the conclusions he finds established, with only his conscience and knowledge of the law to guide him, adjudicate the case accordingly." (Gutierrez v Pallatao; Adm. Matter #RTJ-95-1326, July 8, 1998)

DIFFERENCE BETWEEN ESTAFA AND VIOLATION OF BP 22 In the crime of estafa, deceit and damage are essential elements of the offense and have to be established with satisfactory proof to warrant conviction. For violation of the Bouncing Checks Law, on the other hand, the elements of deceit and damage are neither essential nor required. Rather, the elements of B.P.

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Blg. 22 are (a) the making, drawing and issuance of any check to apply to account or for value; (b) the maker, drawer or issuer knows at the time of issuance that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and, (c) the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without valid reason, ordered the bank to stop payment. (Uy v Court of Appeals, GR 119000, July 28, 1997)

JURISDICTION IN BP 22 CASES In respect of the Bouncing checks case, the offense also appears to be continuing in nature. It is true that the offense is committed by the very fact of its performance (Colmenares vs. Villar, No. L-27126, May 29, 1970, 33 SCRA 186); and that the Bouncing Checks Law penalizes not only the fact of dishonor of a check but also the act of making or drawing and issuance of a bouncing check (People vs. Hon. Veridiano, II, No. L-62243, 132 SCRA 523). The case, therefore, could have been filed also in Bulacan. As held in Que vs. People of the Philippines, G.R. Nos. 75217-18, September 11, 1987 "the determinative factor (in determining venue) is the place of the issuance of the check". However, it is likewise true that knowledge on the part of the maker or drawer of the check of the insufficiency of his funds, which is an essential ingredient of the offense is by itself a continuing eventuality, whether the accused be within one territory or another (People vs. Hon. Manzanilla, G.R. Nos. 66003-04, December 11, 1987). Accordingly, jurisdiction to take cognizance of the offense also lies in the Regional Trial Court of Pampanga. And, as pointed out in the Manzanilla case, jurisdiction or venue is determined by the allegation in the Information, which are controlling (Arches vs. Bellosillo, 81 Phil. 190, cited in Tuzon vs. Cruz, No. L27410, August 28, 1975, 66 SCRA 235). The Information filed herein specifically alleges that the crime was committed in San Fernando Pampanga and therefore within the jurisdiction of the Court below. This ruling was reiterated in the case of Lim vs. Rodrigo, 167 SCRA 487, where it was held: Besides, it was held in People v. Hon. Manzanilla, supra, that as "violation of the bad checks act is committed when one 'makes or draws and issues any check [sic] to apply on account or for value, knowing at the time issue that he does not have sufficient funds' or having sufficient funds in or credit with the drawee bank . . . shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank," "knowledge" is an essential ingredient of the offense charge. As defined by the statute, knowledge, is, by itself, a continuing eventuality, whether the accused be within one territory or another. This being the case, the Regional Trial Court of Baguio City has jurisdiction to try Criminal Case No. 2089-R (688). Moreover, we ruled in the same case of People v. Hon. Manzanilla, reiterated in People vs. Grospe, supra, that jurisdiction or venue is determined by the allegations in the information. The allegation in the information under consideration that the offense was committed in Baguio City is therefore controlling and sufficient to vest jurisdiction upon the Regional Trial Court of Baguio City.

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In the case at bench it appears that the three (3) checks were deposited in Lucena City. As to the second error wherein the petitioner asserted that the checks were issued "as a guarantee only for the feeds delivered to him" and that there is no estafa if a check is issued in payment of a pre-existing obligation, the Court of Appeals pointed out that the petitioner obviously failed to distinguish a violation of B.P. Blg. 22 from estafa under Article 315 (2) [d] of the Revised Penal Code. It further stressed that B.P. Blg. 22 applies even in cases where dishonored checks were issued as a guarantee or for deposit only, for it makes no distinction as to whether the checks within its contemplation are issued in payment of an obligation or merely to guarantee the said obligation and the history of its enactment evinces the definite legislative intent to make the prohibition all-embracing. (Ibasco vs CA, 9/5/96)

ACTUAL KNOWLEDGE OF INSUFFICIENCY OF FUNDS ESSENTIAL IN BP 22 Knowledge of insufficiency of funds or credit in the drawee bank for the payment of a check upon its presentment is an essential element of the offense. There is a prima facie presumption of the existence of this element from the fact of drawing, issuing or making a check, the payment of which was subsequently refused for insufficiency of funds. It is important to stress, however, that this is not a conclusive presumption that forecloses or precludes the presentation of evidence to the contrary. (Lim Lao v CA; 6/20/97)

WHEN LACK OF KNOWLEDGE AND LACK OF POWER TO FUND THE CHECKS IN CASES OF BP 22 A DEFENSE After a thorough review of the case at bar, the Court finds that Petitioner Lina Lim Lao did not have actual knowledge of the insufficiency of funds in the corporate accounts at the time she affixed her signature to the checks involved in this case, at the time the same were issued, and even at the time the checks were subsequently dishonored by the drawee bank. The scope of petitioner's duties and responsibilities did not encompass the funding of the corporation's checks; her duties were limited to the marketing department of the Binondo branch. Under the organizational structure of Premiere Financing Corporation, funding of checks was the sole responsibility of the Treasury Department. (Lim Lao v CA; 6/20/97

LACK OF ADEQUATE NOTICE OF DISHONOR, A DEFENSE There can be no prima facie evidence of knowledge of insufficiency of funds in the instant case because no notice of dishonor was actually sent to or received by the petitioner. The notice of dishonor may be sent by the offended party or the drawee bank. The trial court itself found absent a personal notice of dishonor to Petitioner Lina Lim Lao by the drawee bank based on the unrebutted testimony of Ocampo "(t)hat the checks bounced when presented with the drawee bank but she did not inform anymore the Binondo branch and Lina Lim Lao as there was no need to inform them as the

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corporation was in distress." The Court of Appeals affirmed this factual finding. Pursuant to prevailing jurisprudence, this finding is binding on this Court. (Lim Lao v CA; 6/20/97)

G. ELEMENTS OF ESTAFA BY POSTDATING A CHECK OR ISSUING A CHECK IN PAYMENT OF AN OBLIGATION: (315)

That the offender postdated a check, or issued a check in payment of an obligation.

That such postdatig or issuing a check was done when the offender had no funds in the bank or his funds deposited therein were not sufficient to cover the amount of the check.

Notes:

Note that this only applies if

(1)

The obligation is not pre-existing;

(2)

The check is drawn to enter into an obligation;

(Remember that it is the check that is supposed to be the sole consideration for the other party to have entered into the obligation. For example, Rose wants to purchase a bracelet and draws a check without insufficient funds. The jeweler sells her the bracelet solely because of the consideration in the check.)

(3)

It does not cover checks where the purpose of drawing the check is to guarantee a loan as this is not an obligation contemplated in this paragraph

The check must be genuine. If the check is falsified and is cashed with the bank or exchanged for cash, the crime is estafa thru falsification of a commercial document.

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The general rule is that the accused must be able to obtain something from the offended party by means of the check he issued and delivered. Exception: when the check is issued not in payment of an obligation.

It must not be promissory notes, or guaranties.

good faith is a defense. (PP. VS. VILLAPANDO, 56 PHIL.31)

dishonor for lack of funds - prima facie evidence of deceit or failure to make good within three days after notice of.

If the checks were issued by the defendant and he received money for them, then stopped payment and did not return the money, and he had an intention to stop payment when he issued the check, there is estafa.

Deceit is presumed if the drawer fails to deposit the amount necessary to cover the check within three days from receipt of notice of dishonor or insufficiency of funds in the bank.

If check was issued in payment of pre-existing debt no estafa

It is therefore essential that the check be issued in payment of a simultaneous obligation. The check in question must be utilized by the offender in order to defraud the offended party. So, if the check was issued in payment of a promissory note which had matured and the check was dishonored, there is not estafa since the accused did not obtain anything by means of said check. (People vs. Canlas, O. G. 1092)

If a bouncing check is issued to pay a pre-existing obligation, the drawer is liable under B. P. Blg. 22 which does not make any distinction as to whether a bad check is issued in payment of an obligation or to guarantee an obligation. (Que vs. People, 73217-18, Sept. 21, 1987)

Offender must be able to obtain something from the offended party by means of the check he issues and delivers

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The check must be issued in payment of an obligation. If the check was issued without any obligation or if there is lack of consideration and the check is subsequently dishonored, the crime of estafa is not committed.

If postdating a check issued as mere guarantee/promissory note no estafa

H. ELEMENTS OF OFFENSE DEFINED IN THE FIRST PARAGRAPH OF SECTION 1: BP 22

That a person makes or draws and issues any check.

That the check is made or drawn and issued to apply on account or for value.

That the person who makes or draws and issues the check knows at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment.

That the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would have been dishonored for the same reason had not the drawee, without any valid reason, ordered the bank to stop payment.

Note: Failure to make good within 5 banking days prima facie evidence of knowledge of lack and insufficiency

I. ELEMENTS OF THE OFFENSE DEFINED IN THE SECOND PARAGRAPH OF SECTION 1: BP 22

That a person has sufficient funds in or credit with the drawee bank when he makes or draws and issues a check.

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That he fails to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of 90 days from the date appearing thereon.

That the check is dishonored by the drawee bank.

Note: Failure to make good within 5 banking days prima facie evididence of knowledge of lack and insufficiency

Distinction between estafa under Article 315 (2) (d) of the Revised Penal Code and violation of Batas Pambansa Blg. 22:

(1)

Under both Article 315 (2) (d) and Batas Pambansa Blg. 22, there is criminal liability if the check is drawn for non-pre-existing obligation.

If the check is drawn for a pre-existing obligation, there is criminal liability only under Batas Pambansa Blg. 22.

(2)

Estafa under Article 315 (2) (d) is a crime against property while Batas Pambansa Blg. 22 is a crime against public interest. The gravamen for the former is the deceit employed, while in the latter, it is the issuance of the check. Hence, there is no double jeopardy.

(3)

In the estafa under Article 315 (2) (d), deceit and damage are material, while in Batas Pambansa Blg. 22, they are immaterial.

(4)

In estafa under Article 315 (2) (d), knowledge by the drawer of insufficient funds is not required, while in Batas Pambansa Blg. 22, knowledge by the drawer of insufficient funds is reqired.

When is there prima facie evidence of knowledge of insufficient funds?

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There is a prima facie evidence of knowledge of insufficient funds when the check was presented within 90 days from the date appearing on the check and was dishonored.

Exceptions

1.

When the check was presented after 90 days from date;

2.

When the maker or drawer --

a.

Pays the holder of the check the amount due within five banking days after receiving notice that such check has not been paid by the drawee;

b.

Makes arrangements for payment in full by the drawee of such check within five banking days after notice of non-payment

The drawee must cause to be written or stamped in plain language the reason for the dishonor.

If the drawee bank received an order of stop-payment from the drawer with no reason, it must be stated that the funds are insufficient to be prosecuted here.

If the drawer has valid reasons for stopping payment, he cannot be held criminally liable under B.P. Blg. 22.

The unpaid or dishonored check with the stamped information re: refusal to pay is prima facie evidence of (1) the making or issuance of the check; (2) the due presentment to the drawee for payment & the dishonor thereof; and (3) the fact that the check was properly dishonored for the reason stamped on the check.

On issuance of a bouncing check

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The issuance of check with insufficient funds may be held liable for estafa and Batas Pambansa Blg. 22. Batas Pambansa Blg. 22 expressly provides that prosecution under said law is without prejudice to any liability for violation of any provision in the Revised Penal Code. Double Jeopardy may not be invoked because a violation of Batas Pambansa Blg. 22 is a malum prohibitum and is being punished as a crime against the public interest for undermining the banking system of the country, while under the Revised Penal Code, the crime is malum in se which requires criminal intent and damage to the payee and is a crime against property.

In estafa, the check must have been issued as a reciprocal consideration for parting of goods (kaliwaan). There must be concomitance. The deceit must be prior to or simultaneous with damage done, that is, seller relied on check to part with goods. If it is issued after parting with goods as in credit accommodation only, there is no estafa. If the check is issued for a pre-existing obligation, there is no estafa as damage had already been done. The drawer is liable under Batas Pambansa Blg. 22.

For criminal liability to attach under Batas Pambansa Blg. 22, it is enough that the check was issued to "apply on account or for value" and upon its presentment it was dishonored by the drawee bank for insufficiency of funds, provided that the drawer had been notified of the dishonor and inspite of such notice fails to pay the holder of the check the full amount due thereon within five days from notice.

Under Batas Pambansa Blg. 22, a drawer must be given notice of dishonor and given five banking days from notice within which to deposit or pay the amount stated in the check to negate the presumtion that drawer knew of the insufficiency. After this period, it is conclusive that drawer knew of the insufficiency, thus there is no more defense to the prosecution under Batas Pambansa Blg. 22.

The mere issuance of any kind of check regardless of the intent of the parties, whether the check is intended to serve merely as a guarantee or as a deposit, makes the drawer liable under Batas Pambansa Blg. 22 if the check bounces. As a matter of public policy, the issuance of a worthless check is a public nuisance and must be abated.

Each act of drawing and issuing a bouncing check constitutes a violation of B. P. Blg. 22. In De Villa v. CA, decided April 18, 1991, it was held that under Batas Pambansa Blg. 22, there is no distinction as to the kind of check issued. As long as it is delivered within Philippine territory, the Philippine courts have jurisdiction. Even if the check is only presented to and dishonored in a Philippine bank, Batas Pambansa Blg. 22 applies. This is true in the case of dollar or foreign currency checks. Where the law makes no distinction, none should be made.

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In People v. Nitafan, it was held that as long as instrument is a check under the negotiable instrument law, it is covered by Batas Pambansa Blg. 22. A memorandum check is not a promissory note, it is a check which have the word memo, mem, memorandum written across the face of the check which signifies that if the holder upon maturity of the check presents the same to the drawer, it will be paid absolutely. But there is no prohibition against drawer from depositing memorandum check in a bank. Whatever be the agreement of the parties in respect of the issuance of a check is inconsequential to a violation to Batas Pambansa Blg. 22 where the check bounces.

Cross checks do not make them non-negotiable and therefore they are within the coverage of B. P. Blg. 22.

The law does not distinguish between foreign and local checks. (De Villa vs. Court of Appeals, et al., 195 SCRA 722).

But overdraft or credit arrangement may be allowed by banks as to their preferred clients and Batas Pambansa Blg. 22 does not apply. If check bounces, it is because bank has been remiss in honoring agreement. The check must be presented for payment within a 90-day period. If presented for payment beyond the 90 day period and the drawers funds are insufficient to cover it, there is no Batas Pambansa Blg. 22 violation.

Where check was issued prior to August 8, 1984, when Circular No. 12 of the Department of the Justice took effect, and the drawer relied on the then prevailing Circular No. 4 of the Ministry of Justice to the effect that checks issued as part of an arrangement/agreement of the parties to guarantee or secure fulfillment of an obligation are not covered by Batas Pambansa Blg. 22, no criminal liability should be incurred bY25the drawer. Circular shoulD not b% given retroactive effect. (Lazaro v. CA, November 11, 19, citing People v. AlbeRto, OctobEr 28, 1993)

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