G.R. No.

172829

July 18, 2012

ROSA H. FENEQUITO, CORAZON E. HERNANDEZ, and LAURO

H. RODRIGUEZ, Petitioners, vs. BERNARDO VERGARA, JR.,
Respondent.

On July 21, 2005, the RTC rendered judgment setting aside the July
9, 2004 Order of the MeTC and directing the said court to proceed
to trial.7
Petitioners then elevated the case to the CA via a petition for
review.

DECISION
PERALTA, J.:
Assailed in the present petition for review on certiorari under Rule
45 of the Rules of Court are the Resolutions1 dated March 9, 2006
and May 22, 2006 of the Court of Appeals (CA) in CA-G.R. CR No.
29648. The CA Resolution of March 9, 2006 dismissed petitioners'
petition for review, while the CA Resolution dated May 22, 2006
denied petitioners' Motion for Reconsideration.

On March 9, 2006, the CA rendered its presently assailed

Resolution8 dismissing the petition.
The CA ruled that the Decision of the RTC is interlocutory in nature
and, thus, is not appealable.
Petitioners filed a Motion for Reconsideration, but the CA denied it
in its Resolution9 dated May 22, 2006.
Hence, the instant petition based on the following grounds:

The present petition arose from a criminal complaint for

falsification of public documents filed by herein respondent against
herein petitioners with the Office of the City Prosecutor of Manila.

The Honorable Court of Appeals erred in outrightly dismissing the

Petition for Review on the ground that the remedy availed of by
petitioners is improper.

On February 11, 2004, an Information for falsification of public

documents was filed with the Metropolitan Trial Court (MeTC) of
Manila by the Assistant City Prosecutor of Manila against herein
petitioners.2

Strict enforcement of the Rules may be suspended whenever the

purposes of justice so require.10

On April 23, 2004, herein petitioners filed a Motion to Dismiss the

Case Based on Absence of Probable Cause.3

In their first assigned error, petitioners contend that the Decision of

the RTC is final as it disposes with finality the issue of whether the
MeTC erred in granting their Motion to Dismiss.

After respondent's Comment/Opposition4 was filed, the MeTC

issued an Order5 dated July 9, 2004 dismissing the case on the
ground of lack of probable cause.
Aggrieved, respondent, with the express conformity of the public
prosecutor, appealed the case to the Regional Trial Court (RTC) of
Manila.6

The Court does not agree.

The Court notes at the outset that one of the grounds relied upon
by the CA in dismissing petitioners' petition for review is the
latter's failure to submit copies of pleadings and documents
relevant and pertinent to the petition filed, as required under
Section 2,11 Rule 42 of the Rules of Court. While petitioners filed a
Motion for Reconsideration, they, however, failed to comply with

these requirements. Worse, they did not even mention anything

about it in the said Motion. Section 3, Rule 42 of the same Rules
provides:
Sec. 3. Effect of failure to comply with requirements. The failure
of the petitioner to comply with any of the foregoing requirements
regarding the payment of the docket and other lawful fees, the
deposit for costs, proof of service of the petition, and the contents
of and the documents which should accompany the petition shall
be sufficient ground for the dismissal thereof.
Moreover, it is a settled rule that the right to appeal is neither a
natural right nor a part of due process; it is merely a statutory
privilege, and may be exercised only in the manner and in
accordance with the provisions of law. 12 An appeal being a purely
statutory right, an appealing party must strictly comply with the
requisites laid down in the Rules of Court. 13 Deviations from the
Rules cannot be tolerated.14 The rationale for this strict attitude is
not difficult to appreciate as the Rules are designed to facilitate the
orderly disposition of appealed cases. 15 In an age where courts are
bedeviled by clogged dockets, the Rules need to be followed by
appellants with greater fidelity. 16 Their observance cannot be left to
the whims and caprices of appellants. 17 In the instant case,
petitioners had all the opportunity to comply with the Rules.
Nonetheless, they remained obstinate in their non-observance
even when they sought reconsideration of the ruling of the CA
dismissing their petition. Such obstinacy is incongruous with their
late plea for liberality in construing the Rules.

Quash on the ground that the facts charged in each Information do

not constitute an offense. Thereafter, the MeTC issued an order in
favor of the accused and, accordingly, quashed the Informations.
The private complainant, with the conformity of the public
prosecutor, filed a motion for reconsideration but the MeTC denied
it. On appeal, the RTC reversed the order of the MeTC and directed
the continuation of the proceedings. The accused then filed a
petition for review with the CA. In its assailed decision, the CA
dismissed the petition on the ground that the remedy of appeal
from the RTC decision is improper, because the said decision is
actually interlocutory in nature.
In affirming the ruling of the CA, this Court held that:
Petitioners erroneously assumed that the RTC Decision is final and
appealable, when in fact it is interlocutory. Thus, they filed a
petition for review with the Court of Appeals under Section 3 (b),
Rule 122 of the Revised Rules of Criminal Procedure, which
provides:
xxxx
(b) The appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its appellate jurisdiction shall
be by petition for review under Rule 42.
xxxx

On the above basis alone, the Court finds that the instant petition
is dismissible.

Section 1, Rule 42 of the 1997 Rules of Civil Procedure, as

amended, states:

Even if the Court bends its Rules to allow the present petition, the
Court still finds no cogent reason to depart from the assailed ruling
of the CA.

Sec. 1. How appeal taken; time for filing. A party desiring to

appeal from a decision of the Regional Trial Court rendered in the
exercise of its appellate jurisdiction, may file a verified petition for
review with the Court of Appeals, x x x.

The factual and legal situations in the present case are essentially
on all fours with those involved in Basa v. People.18 In the said case,
the accused were charged with swindling and falsification of public
documents. Subsequently, the accused filed a Joint Motion to

The above provisions contemplate of an appeal from a final

decision or order of the RTC in the exercise of its appellate
jurisdiction.

Thus, the remedy of appeal under Rule 42 resorted to by

petitioners is improper. To repeat, the RTC Decision is not final,
but interlocutory in nature.
A final order is one that which disposes of the whole subject
matter or terminates a particular proceeding or action, leaving
nothing to be done but to enforce by execution what has been
determined. Upon the other hand, an order is interlocutory if it
does not dispose of a case completely, but leaves something more
to be done upon its merits.
Tested against the above criterion, the RTC Decision is beyond cavil
interlocutory in nature. It is essentially a denial of petitioners'
motion to quash because it leaves something more to be
done x x x, i.e ., the continuation of the criminal
proceedings until the guilt or innocence of the accused is
determined. Specifically, the MeTC has yet to arraign the
petitioners, then proceed to trial and finally render the proper
judgment.
It is axiomatic that an order denying a motion to quash on the
ground that the allegations in the Informations do not constitute an
offense cannot be challenged by an appeal. This Court generally
frowns upon this remedial measure as regards interlocutory orders.
The evident reason for such rule is to avoid multiplicity of appeals
in a single action. To tolerate the practice of allowing appeals from
interlocutory orders would not only delay the administration of
justice but also would unduly burden the courts. 19 (Emphases
supplied)
In the present case, the assailed Decision of the RTC set aside the
Order of the MeTC and directed the court a quo to proceed to trial
by allowing the prosecution to present its evidence. Hence, it is
clear that the RTC Decision is interlocutory as it did not dispose of
the case completely, but left something more to be done on its
merits.
In their second assigned error, petitioners claim that assuming for
the sake of argument that the remedy they availed of is not proper,
the facts of the case would readily show that there exist just and

compelling reasons to warrant the relaxation of the rules in the

interest of substantial justice.
Petitioners contend that the PNP Crime Laboratory Questioned
Document Report, submitted as evidence by respondent to the
prosecutor's office, showed that the findings therein are not
conclusive and, thus, insufficient to support a finding of probable
cause.
The Court is not persuaded.
It is clear from a perusal of the cited PNP Crime Laboratory
Questioned Document Report No. 048-03 that the document
examiner found that the signatures appearing in the questioned
Deed of Sale as compared to the standard signatures "reveal
divergences in the manner of execution and stroke structure [which
is] an indication that they WERE NOT WRITTEN BY ONE AND THE
SAME PERSON."20 The Court agrees with the prosecutor's
pronouncement in its Resolution21 dated September 22, 2003, that
although the findings of the PNP Crime Laboratory were qualified
by the statement contained in the Report that "no definite
conclusion can be rendered due to the fact that questioned
signatures are photocopies wherein minute details are not clearly
manifested," the fact that an expert witness already found that the
questioned signatures were not written by one and the same
person already creates probable cause to indict petitioners for the
crime of falsification of public document.
In Reyes v. Pearlbank Securities, Inc.,22 this Court held:
Probable cause, for the purpose of filing a criminal information, has
been defined as such facts as are sufficient to engender a wellfounded belief that a crime has been committed and that
respondent is probably guilty thereof. The term does not mean
"actual and positive cause" nor does it import absolute certainty. It
is merely based on opinion and reasonable belief. Probable cause
does not require an inquiry into whether there is sufficient
evidence to procure a conviction. It is enough that it is believed
that the act or omission complained of constitutes the offense
charged.

A finding of probable cause needs only to rest on evidence showing

that, more likely than not, a crime has been committed by the
suspects. It need not be based on clear and convincing evidence of
guilt, not on evidence establishing guilt beyond reasonable doubt,
and definitely not on evidence establishing absolute certainty of
guilt. In determining probable cause, the average man weighs facts
and circumstances without resorting to the calibrations of the rules
of evidence of which he has no technical knowledge. He relies on
common sense. What is determined is whether there is sufficient
ground to engender a well-founded belief that a crime has been
committed, and that the accused is probably guilty thereof and
should be held for trial. It does not require an inquiry as to whether
there is sufficient evidence to secure a conviction.23
In the instant case, the Court finds no justification to depart from
the ruling of the RTC that the offense charged was committed and
that herein petitioners are probably guilty thereof.
With respect to respondent's legal personality to appeal the July 9,
2004 Order of the MeTC, suffice it to say that the appeal filed with
the RTC was made with the express conformity of the public
prosecutor who handles the case.
It is wrong for petitioners to argue that it is the OSG which has
authority to file an appeal with the RTC.1wphi1 Section 35 (l),
Chapter 12, Title III of Book IV of Executive Order No. 292,
otherwise known as the Administrative Code of 1987, mandates
the OSG to represent "the Government in the Supreme Court and
the Court of Appeals in all criminal proceedings." On the other
hand, Section 11 of Presidential Decree No. 1275, entitled
"Reorganizing the Prosecution Staff of the Department of Justice
and the Offices of the Provincial and City Fiscals, Regionalizing the
Prosecution Service, and Creating the National Prosecution
Service," which was the law in force at the time the appeal was
filed, provides that the provincial or the city fiscal (now referred to
as prosecutor) "shall have charge of the prosecution of all
crimes, misdemeanors and violations of city or municipal
ordinances in the courts of such province or city and shall
therein discharge all the duties incident to the institution
of criminal prosecutions."24 In consonance with the above-

quoted provision, it has been held by this Court that the fiscal
represents the People of the Philippines in the prosecution
of offenses before the trial courts at the metropolitan trial
courts, municipal trial courts, municipal circuit trial courts and the
regional trial courts.25 Since the appeal, in the instant case was
made with the RTC of Manila, it is clear that the City Prosecutor or
his assistant (in this case, the Assistant City Prosecutor) had
authority to file the same.
Moreover, petitioners' reliance on Presidential Decree No. 911 is
misplaced, as the cited provision refers only to cases where the
assistant fiscal or state prosecutor's power to file an information or
dismiss a case is predicated or conditioned upon the prior authority
or approval of the provincial or city fiscal or the Chief State
Prosecutor. There is nothing in the said law which provides that in
cases of appeal an Assistant City Prosecutor or a State Prosecutor
may file the same only upon prior authority or approval of the City
Prosecutor or the Chief State Prosecutor. Stated differently, unless
otherwise ordered, an Assistant City Prosecutor or a State
Prosecutor may file an appeal with the RTC, questioning the
dismissal by the MeTC of a case for lack of probable cause, even
without prior authority or approval of the City Prosecutor or the
Chief State Prosecutor.
WHEREFORE, the instant petition is DENIED. The Resolutions of the
Court of Appeals, dated March 9, 2006 and May 22, 2006 in CAG.R. CR No. 29648, are AFFIRMED.
SO ORDERED.

G.R. No. 181021

December 10, 2012

BURGUNDY REALTY CORPORATION, Petitioner, vs. JOSEFA

"JING" C. REYES and SECRETARY RAUL GONZALEZ of the
DEPARTMENT OF JUSTICE, Respondents.
DECISION

PERALTA, J.:
For resolution of this Court is the Petition for Review on Certiorari,
dated February 13, 2008, of petitioner Burgundy Realty
Corporation, seeking to annul and set aside the Decision 1 and
Resolution of the Court of Appeals (CA), dated September 14, 2007
and December 20, 2007, respectively.
The facts follow.
Private respondent Josefa "Jing" C. Reyes (Reyes), sometime in
1996, offered her services to petitioner as the latter's real estate
agent in buying parcels of land in Calamba, Laguna, which are to
be developed into a golf course. She informed petitioner that more
or less ten (10) lot owners are her clients who were willing to sell
their properties. Convinced of her representations, petitioner
released the amount of P23,423,327.50 in her favor to be used in
buying those parcels of land. Reyes, instead of buying those
parcels of land, converted and misappropriated the money given
by petitioner to her personal use and benefit. Petitioner sent a
formal demand for Reyes to return the amount of P23,423,327.50,
to no avail despite her receipt of the said demand. As such,
petitioner filed a complaint for the crime of Estafa against Reyes
before the Assistant City Prosecutor's Office of Makati City.
Reyes, while admitting that she acted as a real estate agent for
petitioner, denied having converted or misappropriated the
involved amount of money. She claimed that the said amount was
used solely for the intended purpose and that it was petitioner who
requested her services in procuring the lots. According to her, it
was upon the petitioner's prodding that she was constrained to
contact her friends who were also into the real estate business,
including one named Mateo Elejorde. She alleged that prior to the
venture, Mateo Elejorde submitted to her copies of certificates of
title, vicinity plans, cadastral maps and other identifying marks
covering the properties being offered for sale and that after
validating and confirming the prices as well as the terms and
conditions attendant to the projected sale, petitioner instructed her
to proceed with the release of the funds. Thus, she paid down
payments to the landowners during the months of February, March,

July, August, September and October of 1996. Reyes also insisted

that petitioner knew that the initial or down payment for each lot
represented only 50% of the purchase price such that the
remaining balance had to be paid within a period of thirty (30) days
from the date of receipt of the initial payment. She added that she
reminded petitioner, after several months, about the matter of
unpaid balances still owing to the lot owners, but due to lack of
funds and non-infusion of additional capital from other investors,
petitioner failed to pay the landowners of their remaining unpaid
balances. Meanwhile, Reyes received information that her subbroker Mateo Elejorde had been depositing the involved money
entrusted to him under his personal account. On March 28, 2000,
through a board resolution, petitioner allegedly authorized Reyes to
institute, proceed, pursue and continue with whatever criminal or
civil action against Mateo Elejorde, or such person to whom she
may have delivered or entrusted the money she had received in
trust from the firm, for the purpose of recovering such money.
Thus, Reyes filed a complaint for the crime of estafa against Mateo
Elejorde before the City Prosecutor's Office of Makati City docketed
as I.S. No. 98-B-5916-22, and on March 30, 2001, Mateo Elejorde
was indicted for estafa.
After a preliminary investigation was conducted against Reyes, the
Assistant Prosecutor of Makati City issued a Resolution 2 dated April
27, 2005, the dispositive portion of which reads:
In view thereof, it is most respectfully recommended that
respondent be indicted of the crime of Estafa defined and
penalized under the Revised Penal Code. It could not be said that
she has violated the provision of PD 1689 for it was not shown that
the money allegedly given to her were funds solicited from the
public. Let the attached information be approved for filing in court.
Bail recommendation at Php40,000.00.3
Thereafter, an Information for the crime of Estafa under Article
315, par. 1 (b) of the Revised Penal Code (RPC) was filed against
Reyes and raffled before the RTC, Branch 149, Makati City.

Undeterred, Reyes filed a petition for review before the Department

of Justice (DOJ), but it was dismissed by the Secretary of Justice
through State Prosecutor Jovencito Zuo on June 1, 2006.

public respondent Secretary of Justice, are hereby AFFIRMED in

toto.
SO ORDERED.7

Aggrieved, Reyes filed a motion for reconsideration, and in a

Resolution4 dated July 20, 2006, the said motion was granted. The
decretal text of the resolution reads:
Finding the grounds relied upon in the motion to be meritorious
and in the interest of justice, our Resolution of June 1, 2006 is
hereby RECONSIDERED and SET ASIDE. Accordingly, the petition
for review filed by respondent-appellant Josefa Reyes is hereby
given due course and will be reviewed on the merits and the
corresponding resolution will be issued in due time.
SO ORDERED.
On September 22, 2006, Secretary of Justice Raul Gonzalez issued
a Resolution5 granting the petition for review of Reyes, the fallo of
which reads:
WHEREFORE, the assailed resolution is hereby REVERSED and SET
ASIDE. The City Prosecutor of Makati City is directed to cause the
withdrawal of the information for estafa filed in court against
respondent Josefa "Jing" C. Reyes and to report the action taken
within five (5) days from receipt hereof.
SO ORDERED.6
Petitioner filed a motion for reconsideration, but was denied by the
Secretary of Justice in a Resolution dated December 14, 2006.
Eventually, petitioner filed a petition for certiorari under Rule 65 of
the Rules of Court with the CA. The latter, however, affirmed the
questioned Resolutions of the Secretary of Justice. The dispositive
portion of the Decision dated September 14, 2007 reads:
WHEREFORE, premises considered, the assailed Resolutions, dated
22 September 2006 and 14 December 2006[,] both rendered by

Its motion for reconsideration having been denied by the CA in a

Resolution dated December 20, 2007, petitioner filed the present
petition and the following are the assigned errors:
I
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT FINDING
THAT
THE
DOJ
SECRETARY,
RAUL
GONZALEZ,
CAPRICIOUSLY,
ARBITRARILY
AND
WHIMSICALLY
DISREGARDED THE EVIDENCE ON RECORD SHOWING THE
[EXISTENCE] OF PROBABLE CAUSE AGAINST PRIVATE
RESPONDENT FOR ESTAFA UNDER ARTICLE 315 1(b) OF
THE REVISED PENAL CODE.
II
THE COURT OF APPEALS GRIEVOUSLY ERRED IN NOT
FINDING BUT INSTEAD CONCURRED IN WITH THE DOJ
SECRETARY, RAUL GONZALEZ, WHO BY GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION HELD THAT NOT ALL OF THE ELEMENTS OF
ESTAFA UNDER ARTICLE 315 1 (b), PARTICULARLY THE
ELEMENT OF MISAPPROPRIATION, WERE NOT SUFFICIENTLY
ESTABLISHED IN THIS CASE.
III
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT FINDING
THAT THE DOJ SECRETARY, RAUL GONZALEZ, ACTED WITH
GRAVE ABUSE OF DISCRETION IN ACCEPTING AS TRUTH
WHAT WERE MATTERS OF DEFENSE BY PRIVATE
RESPONDENT IN HER COUNTER-AFFIDAVIT WHICH SHOULD
HAVE BEEN PROVEN AT THE TRIAL ON THE MERITS. 8

The petition is meritorious.

It is not disputed that decisions or resolutions of prosecutors are
subject to appeal to the Secretary of Justice who, under the
Revised Administrative Code,9 exercises the power of direct control
and supervision over said prosecutors; and who may thus affirm,
nullify, reverse or modify their rulings. Review as an act of
supervision and control by the justice secretary over the fiscals and
prosecutors finds basis in the doctrine of exhaustion of
administrative remedies which holds that mistakes, abuses or
negligence committed in the initial steps of an administrative
activity or by an administrative agency should be corrected by
higher administrative authorities, and not directly by courts. 10
In the present case, after review and reconsideration, the Secretary
of Justice reversed the investigating prosecutor's finding of
probable cause that all the elements of the crime of estafa are
present. Estafa, under Article 315 (1) (b) of the Revised Penal Code,
is committed by
ART. 315. Swindling (estafa). Any person who shall defraud
another by any of the means mentioned hereinbelow:

1) that money, goods or other personal property be

received by the offender in trust, or on commission, or for
administration, or under any other obligation involving the
duty to make delivery of, or to return, the same;
2) that there be misappropriation or conversion of such
money or property by the offender, or denial on his part of
such receipt;
3) that such misappropriation or conversion or denial is to
the prejudice of another; and
4) that there is demand made by the offended party on the
offender.11
The essence of estafa under Article 315, par. 1 (b) is the
appropriation or conversion of money or property received to the
prejudice of the owner. The words "convert" and "misappropriate"
connote an act of using or disposing of another's property as if it
were one's own, or of devoting it to a purpose or use different from
that agreed upon. To misappropriate for one's own use includes not
only conversion to one's personal advantage, but also every
attempt to dispose of the property of another without right.12

xxxx
1. With unfaithfulness or abuse of confidence, namely:
(a) x x x
(b) By misappropriating or converting, to the prejudice of
another, money, goods, or any other personal property
received by the offender in trust or on commission, or for
administration, or under any other obligation involving the
duty to make delivery of or to return the same, even
though such obligation be totally or partially guaranteed by
a bond; or by denying having received such money, goods,
or other property; x x x
The elements are:

In reversing the finding of probable cause that the crime of estafa

has been committed, the Secretary of Justice reasoned out that,
[the] theory of conversion or misappropriation is difficult to sustain
and that under the crime of estafa with grave abuse of confidence,
the presumption is that the thing has been devoted to a purpose or
is different from that for which it was intended but did not take
place in this case.1wphi1 The CA, in sustaining the questioned
resolutions of the Secretary of Justice, ruled that the element of
misappropriation or conversion is wanting. It further ratiocinated
that the demand for the return of the thing delivered in trust and
the failure of the accused to account for it, are circumstantial
evidence of misappropriation, however, the said presumption is
rebuttable and if the accused is able to satisfactorily explain his
failure to produce the thing delivered in trust, he may not be held
liable for estafa.1wphi1

It must be remembered that the finding of probable cause was

made after conducting a preliminary investigation. A preliminary
investigation constitutes a realistic judicial appraisal of the merits
of a case.13 Its purpose is to determine whether (a) a crime has
been committed; and (b) whether there is a probable cause to
believe that the accused is guilty thereof.14
This Court need not overemphasize that in a preliminary
investigation, the public prosecutor merely determines whether
there is probable cause or sufficient ground to engender a wellfounded belief that a crime has been committed, and that the
respondent is probably guilty thereof and should be held for trial. It
does not call for the application of rules and standards of proof that
a judgment of conviction requires after trial on the merits. 15 The
complainant need not present at this stage proof beyond
reasonable doubt.16 A preliminary investigation does not require a
full and exhaustive presentation of the parties' evidence. 17
Precisely, there is a trial to allow the reception of evidence for both
parties to substantiate their respective claims.18
A review of the records would show that the investigating
prosecutor was correct in finding the existence of all the elements
of the crime of estafa. Reyes did not dispute that she received in
trust the amount of P23,423,327.50 from petitioner as proven by
the checks and vouchers to be used in purchasing the parcels of
land. Petitioner wrote a demand letter for Reyes to return the same
amount but was not heeded. Hence, the failure of Reyes to deliver
the titles or to return the entrusted money, despite demand and
the duty to do so, constituted prima facie evidence of
misappropriation. The words convert and misappropriate connote
the act of using or disposing of another's property as if it were
one's own, or of devoting it to a purpose or use different from that
agreed upon.19 To misappropriate for one's own use includes not
only conversion to one's personal advantage, but also every
attempt to dispose of the property of another without right. 20 In
proving the element of conversion or misappropriation, a legal
presumption of misappropriation arises when the accused fails to
deliver the proceeds of the sale or to return the items to be sold
and fails to give an account of their whereabouts. 21 Thus, the mere
presumption of misappropriation or conversion is enough to
conclude that a probable cause exists for the indictment of Reyes

for Estafa. As to whether the presumption can be rebutted by

Reyes is already a matter of defense that can be best presented or
offered during a full-blown trial.
To reiterate, probable cause has been defined as the existence of
such facts and circumstances as would excite the belief in a
reasonable mind, acting on the facts within the knowledge of the
prosecutor, that the person charged was guilty of the crime for
which he was prosecuted. 22 Probable cause is a reasonable ground
of presumption that a matter is, or may be, well founded on such a
state of facts in the mind of the prosecutor as would lead a person
of ordinary caution and prudence to believe, or entertain an honest
or strong suspicion, that a thing is so. 23 The term does not mean
"actual or positive cause" nor does it import absolute
certainty.24 It is merely based on opinion and reasonable
belief.25 Thus, a finding of probable cause does not require
an inquiry into whether there is sufficient evidence to
procure a conviction.26 It is enough that it is believed that
the act or omission complained of constitutes the offense
charged.27
WHEREFORE, premises considered, the present Petition is hereby
GRANTED and, accordingly, the Decision and Resolution of the
Court of Appeals, dated September 14, 2007 and December 20,
2007, respectively, are hereby REVERSED and SET ASIDE.
Consequently, the Regional Trial Court, Branch 149, Makati City,
where the Information was filed against private respondent Josefa
"Jing" C. Reyes, is hereby DIRECTED to proceed with her
arraignment.
SO ORDERED.

A.M. No. MTJ-12-1804 (Formerly A.M. OCA I.P.I. No. 09-2179MTJ) July 30, 2012
CITY PROSECUTOR ARMANDO P. ABANADO, Complainant, vs.
JUDGE ABRAHAM A. BA YONA, Presiding Judge, Municipal
Trial Court in Cities, Branch 7, Bacolod City, Respondent.

DECISION
LEONARDO-DE CASTRO, J.:
The case now before this Court sprang from Criminal Case No. 0903-164 7 4, entitled People of the Philippines v. Cresencio Palo, Sr. 1
On March 24, 2009, complainant City Prosecutor Armando P.
Abanado filed the Information2 in the Municipal Trial Court in Cities,
Bacolod City, which was eventually raffled to Branch 7 thereof
presided by respondent Judge Abraham A. Bayona.
On April 13, 2009, respondent issued the following order in
Criminal Case No. 09-03-16474 in connection with the issuance of a
warrant of arrest against the accused therein:
Pursuant to Section 6, paragraph (a) in relation to paragraph b,
Rule 112 of the Revised Rules of Criminal Procedure, the Office of
the City Prosecutor of Bacolod City is hereby ordered to present
additional evidence, relevant records and documents to enable this
Court to evaluate and determine the existence of probable cause,
to wit:
1. Copy of the Memorandum of Preliminary Investigation;
2. Resolution of the Investigating Prosecutor on Record,
Prosecutor Dennis S. Jarder Jarder Resolution;
3. Memorandum of the transfer of case assignment from
designated Investigating Prosecutor to the City Prosecutor;
and
4. Exhibit to the Court, the copies of all documents submitted
by the complainant and the respondents therein for
comparison, authentication and completeness of the
photocopies attached to the information.
Compliance is required within five (5) days from receipt of this
Order.3

On April 29, 2009, the Office of the City Prosecutor submitted a

copy of the Memorandum of Preliminary Investigation and informed
respondent that the documents submitted by the parties for
preliminary investigation were already appended to the complaint,
thus, taking care of items 1, 2, and 4 required by the April 13, 2009
Order.
With respect to item 3 thereof, complainant, in a letter also dated
April 29, 2009, explained that there was no memorandum of
transfer of the case from the investigating prosecutor, Assistant
City Prosecutor (ACP) Dennis S. Jarder, to him. 4 In his
aforementioned letter, complainant discussed that the case was
initially handled by ACP Jarder who found no probable cause
against Cresencio Palo, Sr., accused in Criminal Case No. 09-0316474. However, complainant, upon review pursuant to Section 4,
Rule 112 of the Revised Rules of Criminal Procedure, 5 found
otherwise; that is, there was probable cause against Palo. Thus,
complainant disapproved ACP Jarders Resolution and filed the
Information in court.6
Respondent was nonetheless dissatisfied with the explanation of
the Office of the City Prosecutor. In an Order dated May 5, 2009, 7
respondent stated that the Jarder Resolution (dismissing the
complaint) was part and parcel of the official records of the case
and, for this reason, must form part of the records of the
preliminary investigation. He further stated that because there was
a conflict between Jarders and complainants resolutions, those
documents were necessary in the evaluation and appreciation of
the evidence to establish probable cause for the issuance of a
warrant of arrest against Palo.
WHEREFORE, in view of the foregoing premises, complainant is
hereby ordered to complete the records of this case by producing
in Court this official and public document (Resolution of the
Investigating Prosecutor Dennis S. Jarder), required by the Revised
Rules of Criminal Procedure, Rules of Court. Compliance is required
within five (5) days from receipt hereof. Fail not under the pain of
Contempt.8

On May 11, 2009, in view of the foregoing order, the Office of the
City Prosecutor again sent a letter 9 explaining the impossibility of
submitting the Jarder Resolution to the court. The letter stated that
the Jarder Resolution was no longer part of the records of the case
as it was disapproved by complainant and it attached a letter of
Chief State Prosecutor Jovencito Zuo which reads:
This refers to your letter dated April 18, 2008. For your information,
all resolutions prepared by an Investigating Prosecutor after
preliminary investigation shall form part of the record of the case.
But if they have been disapproved by the Provincial/City
Prosecutor, the same shall not be released to the parties and/or
their counsels. Thus, only resolutions approved by the
Provincial/City Prosecutor for promulgation and release to the
parties shall be made known to the parties and/or their counsel. 10
Respondent did not accept the explanations made by the Office of
the City Prosecutor and insisted instead that the Jarder Resolution
should form part of the records of the case. Thus, in an Order 11
dated May 14, 2009, he required complainant to explain within five
days from the receipt thereof why he should not be cited for
contempt under Section 3, Rule 71 of the Rules of Court. 12
Complainant received the aforementioned order on May 15, 2009
and requested for a ten-day extension to comply with it. 13
In an Order14 dated May 19, 2009, respondent denied the request
of a ten-day extension and set the hearing for the contempt
charges on May 26, 2009. He likewise ordered the Clerk of Court to
issue a subpoena duces tecum ad testificandum to ACP Jarder
directing him to testify on the existence of his resolution dismissing
the case against Palo and to Office of the City Prosecutors Records
Officer Myrna Vaegas to bring the entire record of the preliminary
investigation of the Palo case.
Aggrieved, complainant immediately filed a motion for inhibition 15
against respondent on May 20, 2009 claiming:
4. That Complainant is now in a quandary because despite the
fact that the production of the disapproved resolution is not

required under Circular Resolution No. 12 for purposes of

issuance of warrant of arrest, the Court is very much
interested in its production and adding insult to injury in
foisting to cite in contempt the City Prosecutor for its nonproduction.
5. That the issuance of said order is capricious and whimsical
and issued with grave abuse of discretion. Because as it
appears now, the presiding judge is very much interested in
the outcome of this case, thereby showing bias and prejudice
against the prosecution.16
Complainant likewise filed a petition for certiorari with a prayer for
the issuance of a temporary restraining order (TRO) to restrain
respondent from proceeding17 with the May 26, 2009 hearing of the
contempt proceedings. Complainants prayer for a TRO was
granted in an Order dated May 25, 2009 by Presiding Judge Pepito
B. Gellada of the Regional Trial Court, Branch 53, Bacolod City.
In an Order18 dated June 15, 2009, Judge Gellada granted the
petition for certiorari (Gellada Order) holding that:
When a city or provincial prosecutor reverses the investigating
assisting city or provincial prosecutor, the resolution finding
probable cause replaces the recommendation of the investigating
prosecutor recommending the dismissal of the case. The result
would be that the resolution of dismissal no longer forms an
integral part of the records of the case. It is no longer required that
the complaint or entire records of the case during the preliminary
investigation be submitted to and be examined by the judge.
The rationale behind this practice is that the rules do not intend to
unduly burden trial judges by requiring them to go over the
complete records of the cases all the time for the purpose of
determining probable cause for the sole purpose of issuing a
warrant of arrest against the accused. "What is required, rather, is
that the judge must have sufficient supporting documents (such as
the complaint, affidavits, counter-affidavits, sworn statements of
witnesses or transcripts of stenographic notes, if any) upon which
to make his independent judgment or, at the very least, upon

which to verify the findings of the prosecutor as to the existence of

probable cause. x x x.19 (Emphases supplied.)
The records thereafter make no mention of what happened in
Criminal Case No. 09-03-16474.
On July 10, 2009, complainant executed the present administrative
complaint and the same was received by the Office of the Court
Administrator (OCA) on August 20, 2009. 20 Complainant alleged
therein that respondent was guilty of gross ignorance of the law or
procedure,21 gross misconduct,22 and violation of Supreme Court
Circular No. 12 dated June 30, 1987. 23 He essentially asserted that
respondent unduly burdened himself by obsessing over the
production of the records of the preliminary investigation,
especially the Jarder Resolution.
Respondent, in his Comment with Counter-Complaint for
Disbarment of Prosecutor Abanado,24 essentially reiterated the
importance of the Jarder Resolution in deciding whether to issue a
warrant of arrest in Criminal Case No. 09-03-16474. He stated that
the document was "material and relevant in the proper conduct of
preliminary investigation and the neutral, objective and
circumspect appreciation of the Judge of the evidence x x x for a
proper and just determination whether probable cause exist[s] or
not for the possible issuance of a warrant of arrest." 25 As for
respondents countercharge, he claimed complainant should be
disbarred for (a) filing a malicious and unfounded administrative
complaint; (b) disrespect and disobedience to judicial authority; (c)
violation of the sanctity of public records; (d) infidelity in the
custody of documents; and (e) misconduct and insubordination. 26
In a Reply27 dated October 8, 2009, complainant vehemently
denied respondents charges against him and claimed that they
were merely meant to discourage him from pursuing his just and
valid administrative complaint.
On February 2, 2011, the OCA submitted its report and
recommendation.28 It noted the June 15, 2009 Gellada Order which
held that the resolution of the city or provincial prosecutor finding
probable cause replaces the recommendation of the investigating

prosecutor. In such case, the resolution recommending the

dismissal is superseded, and no longer forms an integral part of the
records of the case and it need not be annexed to the information
filed in court. Thus, the OCA held that complainant cannot be held
guilty of contempt. Nevertheless, because there was no showing
that respondent was motivated by bad faith and settled is the rule
that the acts of a judge in his judicial capacity are not subject to
the disciplinary action, it recommended that:
(a) The administrative complaint against [respondent] be REDOCKETED as a regular administrative case; and,
(b) [Respondent] be REPRIMANDED with STERN WARNING
that a repetition of the same or similar offenses will be dealt
with more severely.29
We adopt the factual findings of the OCA but find reason not to
impose the recommended penalty of reprimand on respondent.
We are tasked to determine whether respondent was
administratively liable for gross ignorance of the law, gross
misconduct and violation of Supreme Court Circular No. 12 dated
June 30, 1987 for requiring the Office of the City Prosecutor to
submit the Jarder Resolution to the court despite the reversal
thereof.
The conduct of a preliminary investigation is primarily an executive
function.30 Thus, the courts must consider the rules of procedure of
the Department of Justice in conducting preliminary investigations
whenever the actions of a public prosecutor is put in question. An
examination of the 2008 Revised Manual for Prosecutors of the
Department of Justice-National Prosecution Service31 (DOJ-NPS
Manual), therefore, is necessary.
The pertinent provisions of the DOJ-NPS Manual are as follows:
J. PREPARATION OF THE RESOLUTION
1. When There is Lack of Probable Cause

If the investigating prosecutor does not find sufficient basis for the
prosecution of the respondent, he shall prepare the resolution
recommending the dismissal of the complaint.

The investigating prosecutor shall forward his recommendation and

Information, together with the complete records of the case, to the
Chief State/ Regional State/ Provincial/City Prosecutor concerned
within five (5) days from the date of his resolution.

xxxx
xxxx
3. Form of the Resolution and Number of Copies
3. Documents to be Attached to the Information
The resolution shall be written in the official language, personally
and directly prepared and signed by the investigating prosecutor. It
shall be prepared in as many copies as there are parties, plus five
(5) additional copies.
xxxx
e. Contents of the Body of the Resolution
In general, the body of [the] resolution should contain:
1. a brief summary of the facts of the case;
2. a concise statement of the issues involved;
3. applicable laws and jurisprudence; and
4. the findings, including an enumeration of all the
documentary evidence submitted by the parties and
recommendations of the investigating prosecutor.
All material details that should be found in the information
prepared by the Investigating Prosecutor shall be stated in the
resolution.
xxxx
K. TRANSMITTAL OF THE RECOMMENDATORY RESOLUTION AND
INFORMATION TOGETHER WITH THE COMPLETE RECORD OF THE
CASE

An information that is filed in court shall, as far as practicable, be

accompanied by a copy of the resolution of the investigating
prosecutor, the complainants affidavit, the sworn statements of
the prosecutions witnesses, the respondents counter-affidavit and
the sworn statements of his witnesses and such other evidence as
may have been taken into account in arriving at a determination of
the existence of probable cause.
4. Confidentiality of Resolutions
All resolutions prepared by an investigating prosecutor after
preliminary investigation, whether his recommendation be for the
filing or dismissal of the case, shall be held in strict confidence and
shall not be made known to the parties, their counsels and/or to
any unauthorized person until the same shall have been finally
acted upon by the Chief State/Regional State/Provincial/City
Prosecutor or his duly authorized assistant and approved for
promulgation and release to the parties.
xxxx
L. ACTION OF THE CHIEF STATE/REGIONAL STATE/PROVINCIAL OR
CITY PROSECUTOR ON THE RECOMMENDATORY RESOLUTION
The Chief State/Regional State/Provincial or City Prosecutor
concerned shall act on all resolutions within a period of thirty (30)
days from receipt thereof, extendible for another thirty (30) days in
cases involving complex issues and/or heavy workload of the head
of office, by either:

xxxx
3. reversing the recommendation of the investigating prosecutor,
in which case, the Chief State/Regional State/Provincial or City
Prosecutor a. may file the corresponding Information in court
(except the Regional State Prosecutor); or
b. direct any other state prosecutor or assistant prosecutor, as the
case may be, to do so.
In both instances, there is no more need for the head of office
concerned to conduct another preliminary investigation.
(Emphases supplied.)
Based on the foregoing, the guidelines for the documentation of a
resolution by an investigating prosecutor, who after conducting
preliminary investigation, finds no probable cause and
recommends a dismissal of the criminal complaint, can be summed
as follows:
(1) the investigating prosecutor prepares a resolution
recommending the dismissal and containing the following:
a. summary of the facts of the case;
b. concise statement of the issues therein; and
c. his findings and recommendations.
(2) within five days from the date of his resolution, the
investigating fiscal shall forward his resolution to the
provincial, city or chief state prosecutor, as the case may be,
for review;
(3) if the resolution of the investigating prosecutor is reversed
by the provincial, city or chief state prosecutor, the latter may
file the information himself or direct another assistant
prosecutor or state prosecutor to do so;

(4) the resolution of the investigating prosecutor shall be

strictly confidential and may not be released to the parties,
their counsels and/or any other unauthorized person until the
same shall have been finally acted upon by the provincial, city
or chief state prosecutor or his duly authorized assistant and
approved for promulgation and release to the parties; and
(5) that the resolution of the investigating prosecutor, the
complainant's affidavit, the sworn statements of the
prosecution's witnesses, the respondent's counter-affidavit
and the sworn statements of his witnesses and such other
evidence, as far as practicable, shall be attached to the
information.
We find that there is nothing in the DOJ-NPS Manual requiring the
removal of a resolution by an investigating prosecutor
recommending the dismissal of a criminal complaint after it was
reversed by the provincial, city or chief state prosecutor.
Nonetheless, we also note that attaching such a resolution to an
information filed in court is optional under the aforementioned
manual. The DOJ-NPS Manual states that the resolution of the
investigating prosecutor should be attached to the information only
"as far as practicable." Thus, such attachment is not mandatory or
required under the rules.
In view of the foregoing, the Court finds that respondent erred in
insisting on the production of the Jarder Resolution when all other
pertinent documents regarding the preliminary investigation have
been submitted to his court, and in going so far as to motu proprio
initiating a proceeding for contempt against complainant.
However, not every judicial error is tantamount to ignorance of the
law and if it was committed in good faith, the judge need not be
subjected to administrative sanction.32 While complainant admitted
that he erred in insisting on the production of the Jarder Resolution
despite the provisions of the DOJ-NPS Manual, such error cannot be
categorized as gross ignorance of the law as he did not appear to
be motivated by bad faith. Indeed, the rules of procedure in the
prosecution office were not clear as to whether or not an

investigating prosecutors resolution of dismissal that had been

reversed by the city prosecutor should still form part of the records.

HEIRS OF THE LATE NESTOR TRIA, Petitioners, vs. ATTY.

EPIFANIA OBIAS, Respondent.

Neither
did
respondents
action
amount
to
gross
misconduct.1wphi1 Gross misconduct presupposes evidence of
grave irregularity in the performance of duty.33 In the case at bar,
respondents act of requiring complainant to explain why he should
not be cited in contempt for his failure to submit the Jarder
Resolution in court was in accordance with established rules of
procedure. Furthermore, complainant did not abuse his contempt
power as he did not pursue the proceedings in view of the May 29,
2009 and June 15, 2009 Gellada orders. 34 Lastly, as previously
discussed, respondent issued those orders in good faith as he
honestly believed that they were necessary in the fair and just
issuance of the warrant of arrest in Criminal Case No. 09-03-16474.

DECISION

As far as the disbarment charges against complainant are

concerned, under the Rules of Court, complaints for disbarment
against a lawyer are ordinarily referred to an investigator who shall
look into the allegations contained therein. 35 However, in the
interest of expediency and convenience, as the matters necessary
for the complete disposition of the counter-complaint are found in
the records of the instant case, we dispose of the same here. We
find no merit in the countercharges. It appears from the records
that complainants non-submission of the Jarder Resolution was
motivated by his honest belief that his action was in accord with
the procedures in the prosecution office. It likewise cannot be said
that the filing of the present administrative case against Judge
Bayona was tainted with improper motive or bad faith.
ACCORDINGLY, the complaint against Judge Abraham A. Bayona of
the Municipal Trial Court in Cities, Bacolod City, Branch 7 is
DISMISSED.
The counter-complaint against City Prosecutor Armando P. Abanado
is likewise DISMISSED. SO ORDERED.

G.R. No. 175887

November 24, 2010

VILLARAMA, JR., J.:

Before this Court is a petition for review on certiorari under Rule 45
of the 1997 Rules of Civil Procedure, as amended, seeking to
reverse and set aside the Decision 1 dated August 14, 2006 and
Resolution2 dated December 11, 2006 of the Court of Appeals (CA)
in CA-G.R. SP No. 86210. The CA denied the petition for
mandamus/certiorari filed by the petitioners which assailed the
Order3 dated March 24, 2004 of the Office of the President (OP)
dismissing the murder charge against the respondent.
The factual antecedents are as follows:
On May 22, 1998, at around 10:00 oclock in the morning at the Pili
Airport in Camarines Sur, Engr. Nestor Tria, Regional Director of the
Department of Public Works and Highways (DPWH), Region V and
concurrently Officer-In-Charge of the 2nd Engineering District of
Camarines Sur, was shot by a gunman while waiting to board his
flight to Manila. He was brought to a hospital but died the following
day from the lone gunshot wound on his nape. Subsequently, the
incident was investigated by the National Bureau of Investigation
(NBI).
On July 31, 1998, NBI Regional Director Alejandro R. Tenerife,
Chairman of Task Force Tria, recommended to the Provincial
Prosecutor of Camarines Sur the indictment of Roberto "Obet"
Aclan y Gulpo, Juanito "Totoy" Ona y Masalonga and Atty. Epifania
"Fanny" Gonzales-Obias, for the murder of Engr. Tria.
On the basis of statements given by twenty-six (26) individuals,
autopsy and ballistic examination reports, and relevant documents
gathered,4 the NBI submitted its findings, as follows:

Our investigation disclosed that about two weeks before the

incident ACLAN and ONA had been conducting an almost daily
stakeout at the DPWH 2nd Engineering District of Camarines Sur in
Sta. Elena, Iriga City where Regional Director TRIA was holding
office from time to time as District Engineer in concurrent capacity.
Alternately ACLAN and ONA would ask the security guard on duty if
Director TRIA had already arrived and the usual days and time of
his coming to the office. At noontime or early afternoon, after
waiting vainly for TRIAs arrival, the duo would leave, riding
tandem on a red motorcycle. During their surveillance it was ONA
who frequently sat on the couch at the lobby of the Engineering
Building while ACLAN was waiting near their motorcycle at the
parking space. At times ONA would approach ACLAN to whisper a
message and the latter would relay the message to someone else
through a hand-held radio. There were also some instances when
ACLAN would wait at the lobby while ONA was staying near the
parked motorcycle. At one instance an employee had noticed a gun
tucked on the waistline of ACLAN.
Around 8:00 oclock in the morning of May 22, 1998, ACLAN and
ONA were spotted in their usual places at the 2nd Engineering
District in Iriga City. ONA was wearing a loose, yellow long sleeved
shirt, maong pants and a pair of sneakers; ACLAN was in a white
and gray striped shirt and a pair of maong pants. Shortly before
9:00 a.m. on that day, THEO RUBEN CANEBA, a DPWH employee
and newly elected Municipal Councilor of Buhi, Camarines Sur,
arrived. He was warmly greeted and congratulated by his former
co-employees outside the engineering building. It was at this point
when CANEBA noticed a man about 54" in height, sturdy, with
semi-curly hair, wearing a white and gray-striped shirt with maong
pants and about 40 years old. The man (later identified through his
photograph as ROBERTO ACLAN) was looking intensely at him and
was shifting position from left to right to get a better view of him.
Obviously, ACLAN was trying to figure out whether CANEBA was
Director TRIA. After about 20 minutes, Administrative Officer JOSE
PECUNDO announced to those who had some documents for
signature of Director TRIA to proceed to Pili Airport where TRIA
would sign them before leaving for Manila. Upon hearing this,
ACLAN and ONA left hurriedly on board a red motorcycle. No
sooner had ACLAN and ONA left that CANEBA cautioned the guards

to be extra alert because he had some sense of foreboding about

that man (referring to ACLAN).
Shortly after 10:00 a.m. on that day, Director TRIA arrived at the
Airport. After signing some documents at the parking lot he
proceeded towards the pre-departure area on the second floor of
the airport building. ONA, who was waiting on the stairway,
immediately followed TRIA as the latter was going up the stairs. As
TRIA was approaching the pre-departure area he was met by Atty.
[E]PIFANIA OBIAS who shook his hands and started conversing with
him. It was at this juncture that a gunshot rang out and TRIA
dropped like a log on the floor, bleeding profusely from a gunshot
wound at the back of his head. As a commotion ensued, ONA was
seen running down the stairway while tucking a gun on his
waistline. Even before ONA could come out of the doorway, ACLAN
was already outside the building, pointing a handgun at everybody
obviously to discourage any attempt of pursuit while swiftly
stepping backward to where their motorcycle was parked. He then
fired shots at an army man who tried to chase ONA. The army man,
who was then unarmed, sought cover behind a parked van. ACLAN
and ONA then boarded a red motorcycle and sped away. Director
TRIA died from a lone gunshot wound on his nape at the Mother
Seton Hospital in Naga City the following day.
Atty. EPIFANIA OBIAS, on the other hand, admitted that she was
with ROBERTO "OBET" ACLAN in the early morning of May 22,
1998; that at about 7:00 a.m. on that day she went to the
residence of Director TRIA at Liboton, Naga City, had a brief talk
with the latter and left immediately. She also volunteered the
information that ROBERTO ACLAN was not the gunman who had
fired the fatal shot at Director TRIA. She was also the last person
seen talking with Director TRIA when the latter was gunned down.
A practicing lawyer, Atty. OBIAS also engages herself in real estate
business on the side. In 1997 she had brokered a sale of real estate
between and among spouses PRUDENCIO and LORETA JEREMIAS,
as Vendors, and Spouses NESTOR and PURA TRIA, as Vendees, over
a .9165 hectare of land in Balatas, Naga City. It was Atty. OBIAS
who received, for and in behalf of the vendors, the full payment of
P2.8 Million of the sale from the TRIAs with the agreement that
Atty. OBIAS would take care of all legal processes and
documentations until the Deed of Absolute Sale is delivered to the

TRIA family. After the death of TRIA, the surviving spouse and heirs
made several attempts to contact Atty. OBIAS to demand
immediate delivery of the deed of sale, but the latter deliberately
avoided the TRIA family and, despite verbal and written demands,
she failed and refused, as she still fails and refuses, to fulfill her
legal obligation to the TRIA family. At one instance, a
representative of the TRIA family had chanced upon Atty. OBIAS at
her residence and demanded of her to deliver the deed of sale to
the TRIA family immediately. But Atty. OBIAS replied that Director
TRIA had already disposed of the property before his death, a claim
that can no longer be disputed by Director TRIA as his lips had
already been sealed forever, except for the fact that neither the
surviving spouse nor anyone of the heirs had given any consent to
the purported subsequent sale.
During the lifetime of Director TRIA, Atty. OBIAS was one of the
frequent visitors of the TRIA family and had been known to the
family members as a friend and a close associate of Director TRIA.
Yet, she never attended the wake of Director TRIA nor made any
gesture of sympathy or condolence to the TRIA family up to the
present time.5
During the preliminary investigation conducted by the Office of the
Provincial Prosecutor, respondent filed her Counter-Affidavit
denying that she was in anyway involved with the killing of Engr.
Tria. Respondent admitted that Engr. Tria was a longtime friend and
that she went to his residence at about 7:30 oclock in the morning
of May 22, 1998. Since Engr. Tria had many visitors at that time,
they just agreed to see each other at the airport later. Respondent
denied having admitted to NBI Supervising Agent (SA) Atty. Manuel
Eduarte that she was with Aclan then, and neither did she
volunteer the information that Aclan was not the triggerman.
Respondent submitted the sworn statement of Edgar Awa, one of
those witnesses interviewed by the NBI, who declared that Aclan
and Ona were at the Iriga City DPWH Office in the morning of May
22, 1998 at 8:00 oclock in the morning. Such is also corroborated
by the sworn statement of another NBI witness, Theo Ruben
Caneba, who declared that when he arrived at the DPWH Iriga
office at about 8:30 oclock in the morning of May 22, 1998, he
noticed the presence of Aclan who was supposedly eyeing him
intensely, and that after it was announced that those who have

some transactions with Engr. Tria should just proceed to the airport,
Caneba saw Aclan with a companion later identified as Ona,
immediately left the compound in a motorcycle.6
Respondent likewise denied that she met Engr. Tria as the latter
was approaching the pre-departure area of the airport and that she
supposedly shook his hands. The truth is that when she and Engr.
Tria met at the airport, the latter took her by the arm and led her to
a place where they talked. Respondent asserted that from the
totality of evidence gathered by the NBI, it has not established
prima facie the existence of conspiracy as to implicate her in the
death of Engr. Tria.7
On July 2, 1999, the Office of the Provincial Prosecutor of
Camarines Sur issued a resolution8 directing the filing of an
information for murder against Aclan and Ona but dismissing the
case for insufficiency of evidence as against herein respondent,
Atty. Epifania Obias.
Petitioners appealed to the Department of Justice (DOJ) assailing
the Provincial Prosecutors order to dismiss the charge against
respondent.9 On January 25, 2000, then Justice Secretary Serafin
Cuevas issued a Resolution10 modifying the July 2, 1999 resolution
of the Provincial Prosecutor and directing the latter to include
respondent in the information for murder filed against Aclan and
Ona.
The DOJ agreed with the contention of petitioners that there is
interlocking circumstantial evidence sufficient to show that
respondent conspired with Aclan and Ona in the killing of Engr. Tria.
It cited the following circumstances: (1) Despite respondents
admission regarding her friendship and close association with Engr.
Tria, her visit at his house early morning of the same day, and her
presence at the airport where she met Engr. Tria and was the
person last seen with him, respondent never lifted a finger to help
Engr. Tria when he was gunned down and neither did she volunteer
to help in the investigation of Engr. Trias murder nor visit the
grieving family to give her account of the fatal shooting of Engr.
Tria, which behavior negates her claim of innocence; (2) In the
sworn statement of NBI SA Manuel Eduarte, he declared that

respondent admitted to him that she and Aclan were together

when she went to the residence of Engr. Tria at 7:30 in the morning
of May 22, 1998 and that while she later denied such admission
and explained that Aclan could not have been with her as the latter
was at the DPWH Regional office at about 8:00 a.m., such does not
render impossible the fact of Aclans presence at the residence of
Engr. Tria considering that the time given was mere approximation
by respondent not to mention the possibility that Aclan could have
easily gotten to the DPWH office after coming from the house of
Engr. Tria using the same motorcycle which Aclan used as get-away
vehicle at the airport; (3) SA Eduartes statement cannot be simply
disregarded as he had no ill motive to impute upon respondent the
said admission; and (4) The double sale of the property wherein
the Tria spouses already paid P2.8 million to respondent who
brokered the sale, only to sell it to another buyer for P3.3 million,
without turning over to the Tria family the deed of sale and her
failure to attend to the registration of the land in the name of the
Tria spouses this strongly establishes the fact that respondent
had the strongest motive to have Engr. Tria murdered by Aclan and
Ona who were obviously guns for hire. Also mentioned was the
respondents representation of Aclan as the latters defense lawyer
in a frustrated murder case which was dismissed. Such clientlawyer relationship could have spawned respondents ascendancy
over Aclan.11
The DOJ was thus convinced that the sequence of events and
respondents conduct before, during and after the killing of Engr.
Tria undeniably points to her complicity with Aclan and Ona.
Moreover, it pointed out that respondents defense consisted
merely of denial which cannot prevail over the positive allegations
of witnesses showing her complicity with the gunmen in the
perpetration of the crime.12
Respondent along with Aclan and Ona filed a motion for
reconsideration of the DOJs January 25, 2000 resolution. 13 On
February 18, 2000, Justice Secretary Artemio G. Tuquero issued a
directive to State Prosecutor Josefino A. Subia who was the Acting
Provincial Prosecutor of Camarines Sur, to defer, until further
orders, the filing of the information for the inclusion of respondent,
in order not to render moot the resolution of the motion for
reconsideration of the January 25, 2000 resolution.14

On September 17, 2001, then Justice Secretary Hernando B. Perez

issued
a
resolution
denying
respondents
motion
for
reconsideration.15
In the meantime, the information charging Aclan and Ona has
already been filed with the Regional Trial Court (RTC) of Pili,
Camarines Sur. Upon request however, the venue was transferred
to the RTC Quezon City by resolution of this Court in A.M. No. 003145-RTC.16
Sometime in October 2001, the prosecution filed with the RTC
Quezon City a Motion to Admit Amended Information to include
respondent as one of the accused for the murder of Tria. 17
On October 8, 2001, respondent filed a Notice of Appeal with the
DOJ under the provisions of Administrative Order No. 18, series of
1987.18 In a letter dated December 3, 2001 addressed to
respondents counsel, the DOJ denied respondents notice of
appeal on the ground that pursuant to Memorandum Circular No.
1266 dated November 4, 1983, as amended by Memorandum
Circular No. 58 dated June 30, 1993, appeals to the OP where the
penalty prescribed for the offense charged is "reclusion perpetua to
death," shall be taken by petition for review. 19 Respondent filed a
motion for reconsideration of the denial of her notice of appeal. 20
It appears that on January 28, 2002, the RTC Quezon City issued an
order admitting the amended information which includes
respondent. The latter then filed with the RTC a Motion for
Reconsideration with Prayer for the Suspension of the Issuance of a
Warrant of Arrest dated February 28, 2002, a copy of which was
furnished to the Legal Office of the OP on March 6, 2002. 21
On February 6, 2002, the DOJ denied respondents motion for
reconsideration stating that the proper procedure is the filing of an
appeal or petition for review with the OP and not before the DOJ.
Hence, the case was considered closed and terminated. 22 However,
the DOJ directed the Provincial Prosecutor to forward the records of
the case to the OP in compliance with the Order dated October 18,
2001 of Deputy Executive Secretary Jose Tale.23 It turned out that

respondent filed on October 1, 2001 a notice of appeal before the

OP (O.P. Case No. 01-J-118).24
On June 27, 2003, Senior Deputy Executive Secretary Waldo Q.
Flores adopted the findings of facts and conclusions of law in the
appealed Resolutions dated January 25, 2000 and September 17,
2001 of the DOJ, and affirmed the same.25 Respondent filed a
motion for reconsideration on September 17, 2003. 26 On December
3, 2003, respondent filed a Supplemental Pleading and Submission
of Newly Discovered Evidence.27
In his Order dated March 24, 2004, Presidential Assistant Manuel C.
Domingo granted respondents motion for reconsideration and
reversed the DOJ resolutions. It was held that mere close
relationship without any corroborative evidence showing intent to
perpetrate the crime is not enough probable cause. The conclusion
that respondent was the only one interested in the death of Engr.
Tria because of the double sale from which respondent supposedly
wanted to get away from her obligation to the Tria spouses, was
based merely on the opinion of SA Eduarte. Also, since Mrs. Pura
Tria admitted she knew of the said transaction, she could very well
file a civil case for collection such that even with the death of Engr.
Tria, respondent will not be able to evade her obligation. As to the
presence of both Aclan and respondent at the house of Engr. Tria
early morning before the incident took place, the same was not
sufficiently established, as shown by the affidavit of Felix Calayag.
The OP thus concluded there was no interlocking circumstantial
evidence of respondents acts before, during and after the killing of
Engr. Tria that would establish conspiracy among Aclan, Ona and
respondent to commit the crime. Accordingly, the case against
respondent was dismissed for insufficiency of evidence. 28
Petitioners filed a motion for reconsideration 29 which was denied by
the OP in its Order30 dated June 10, 2004. Before the CA, petitioners
filed a petition for mandamus/certiorari under Rule 65 of the 1997
Rules of Civil Procedure, as amended.
On August 14, 2006, the CA rendered the assailed Decision
denying the petition. On the issue of the alleged grave abuse
committed by the OP in modifying the findings of the DOJ instead

of ordering the Secretary of Justice to reopen/review the case in

accordance with Memorandum Circular No. 58, the CA held that it
was not mandatory for the OP to do so. As for the evaluation of
factual matters and credence to be accorded to the testimonies of
respondent and her witnesses, the CA declared that these are not
proper grounds in a petition for certiorari which is confined only to
the correction of errors of jurisdiction. Neither will mandamus lie to
compel the performance of a discretionary duty in view of the
failure of petitioners to show a clear and certain right to justify the
grant of relief.31
Their motion for reconsideration having been denied by the CA,
petitioners are now before us contending that the CA manifestly
overlooked relevant facts which, if properly considered, would
justify a different conclusion. They maintain that the CA decision is
contrary to law and established jurisprudence.
Petitioners argue that since the preliminary investigation and
review of the resolution finding probable cause have already been
terminated years before respondents appeal to the OP -- more so
with the earlier denial of the said appeal for failing to raise any new
issue not raised before the DOJ -- the alleged new affidavits should
have been referred to the DOJ for reinvestigation. As to the
affidavits of Calayag and Jennis Nidea, said witnesses have not
been confronted by the petitioners in violation of the latters right
to due process. Thus, the CA decision affirmed the OPs dismissal
of the case against respondent at the level of the DOJ without
referral to the said office and without consideration of the
pendency of the case at RTC of Quezon City, Branch 76. Lacking
such authority on appeal to appreciate newly submitted affidavits
of Calayag and Nidea, Presidential Assistant Manuel C. Domingo
arrogated unto himself the judicial task of analyzing the said
documents without confrontation of the witnesses by the other
party. Further, the CA overlooked the fact that such affidavits
submitted by respondent as newly discovered evidence was merely
a ploy in order for her appeal to qualify as raising new and material
issues which were supposedly not raised before the DOJ. 32
Petitioners further argue that the CA should not have affirmed the
OPs dismissal of the murder charge against the respondent

pursuant to Crespo v. Mogul33 that once an information has been

filed in court, any disposition of the case as to its dismissal or the
conviction or acquittal of the accused rests in the sound discretion
of the court.
On the procedural issue raised by the petitioners, we hold that the
OP did not err in taking cognizance of the appeal of respondent,
and that the CA likewise had jurisdiction to pass upon the issue of
probable cause in a petition challenging the OPs ruling.
Memorandum Circular No. 5834 provides:
xxxx
No
appeal
from
or
petition
for
review
of
decisions/orders/resolutions of the Secretary of Justice on
preliminary investigations of criminal cases shall be entertained by
the Office of the President, except those involving offenses
punishable by reclusion perpetua to death wherein new and
material issues are raised which were not previously presented
before the Department of Justice and were not ruled upon in the
subject decision/order/resolution, in which case the President may
order the Secretary of Justice to reopen/review the case, provided,
that, the prescription of the offense is not due to lapse within six
(6) months from notice of the questioned resolution/order/decision,
and provided further, that, the appeal or petition for review is filed
within thirty (30) days from such notice.
Henceforth, if an appeal or petition for review does not clearly fall
within the jurisdiction of the Office of the President, as set forth in
the immediately preceding paragraph, it shall be dismissed
outright and no order shall be issued requiring the payment of the
appeal fee, the submission of appeal brief/memorandum or the
elevation of the records to the Office of the President from the
Department of Justice.
If it is not readily apparent from the appeal or petition for review
that the case is within the jurisdiction of the Office of the President,
the appellant/petitioner shall be ordered to prove the necessary
jurisdictional facts, under penalty of outright dismissal of the

appeal or petition, and no order to pay the appeal fee or to submit

appeal brief/memorandum or to elevate the records of the case to
the Office of the President shall be issued unless and until the
jurisdictional requirements shall have been satisfactorily
established by the appellant/petitioner.
x x x x (Emphasis supplied.)
The offense for which respondent was charged is punishable by
reclusion perpetua to death, which is clearly within the jurisdiction
of the OP in accordance with Memorandum Circular No. 58.
Respondents appeal was initially dismissed when Senior Deputy
Executive Secretary Waldo Q. Flores issued the Resolution dated
June 27, 2003 affirming in toto the appealed resolutions of the
Secretary of Justice and adopting the latters findings and
conclusions. However, subsequent to her filing of a motion for
reconsideration of the said June 27, 2003 Resolution, respondent
filed a Supplemental Pleading and Submission of Newly Discovered
Evidence. The arguments of respondent in support of her motion
for reconsideration were duly considered by the OP in reexamining
the appealed resolutions. As the word "may" in the second
paragraph of Memorandum Circular No. 58 signifies, it is not
mandatory for the President to order the DOJ to reopen or review
respondents case even if it raised "new and material issues"
allegedly not yet passed upon by the DOJ. Hence, the OP acted well
within its authority in reexamining the merits of respondents
appeal in resolving the motion for reconsideration.
In arguing that the CA gravely abused its discretion when it
affirmed the OPs dismissal of the murder charge against
respondent, petitioner invoked our ruling in Crespo v. Mogul that
any disposition of the case rests on the sound discretion of the
court once an information has been filed with it.
A refinement of petitioners understanding of the Crespo ruling is in
order. In Crespo, we ruled that after the information has already
been filed in court, the courts permission must be secured should
the fiscal find it proper that reinvestigation be made. Thereafter,
the court shall consider and act upon the findings and
recommendations of the fiscal.

In Ledesma v. Court of Appeals,35 we clarified that the justice

secretary is not precluded from exercising his power of review over
the investigating prosecutor even after the information has already
been filed in court. However, the justice secretarys subsequent
resolution withdrawing the information or dismissing the case does
not cause the court to lose jurisdiction over the case. In fact, the
court is duty-bound to exercise judicial discretion and its own
independent judgment in assessing the merits of the resulting
motion to dismiss filed by the prosecution, to wit:
When confronted with a motion to withdraw an information on the
ground of lack of probable cause based on a resolution of the
secretary of justice, the bounded duty of the trial court is to make
an independent assessment of the merits of such motion. Having
acquired jurisdiction over the case, the trial court is not bound by
such resolution but is required to evaluate it before proceeding
further with the trial. While the secretarys ruling is persuasive, it is
not binding on courts. A trial court, however, commits reversible
error or even grave abuse of discretion if it refuses/neglects to
evaluate such recommendation and simply insists on proceeding
with the trial on the mere pretext of having already acquired
jurisdiction over the criminal action. (Underscoring supplied.)
Further, it is well within the courts sound discretion to suspend
arraignment to await the result of the justice secretarys review of
the correctness of the filing of the criminal information. 36 There are
exceptional cases, such as in Dimatulac v. Villon37 wherein we have
suggested that it would have been wiser for the court to await the
justice secretarys resolution before proceeding with the case to
avert a miscarriage of justice. Evidently however, this is not a hard
and fast rule, for the court has complete control over the case
before it.
Petitioners argument that the non-referral by the OP to the DOJ of
the appeal or motion for reconsideration filed by the respondent
had deprived them of the opportunity to confront and crossexamine the witnesses on those affidavits belatedly submitted by
the respondent is likewise untenable. Under the procedure for
preliminary investigation provided in Section 3, Rule 112 of the
Revised Rules of Criminal Procedure, as amended,38 in case the

investigating prosecutor conducts a hearing where there are facts

and issues to be clarified from a party or witness, "[t]he parties can
be present at the hearing but without the right to examine or crossexamine. They may, however, submit to the investigating officer
questions which may be asked to the party or witness
concerned."39 Hence, the non-referral by the OP to the DOJ of the
motion for reconsideration of respondent, in the exercise of its
discretion, did not violate petitioners right to due process.
In resolving the issue of whether the CA gravely abused its
discretion in affirming the OPs reversal of the ruling of the
Secretary of Justice, it is necessary to determine whether probable
cause exists to charge the respondent for conspiracy in the murder
of Engr. Tria.
A prosecutor, by the nature of his office, is under no compulsion to
file a particular criminal information where he is not convinced that
he has evidence to prop up its averments, or that the evidence at
hand points to a different conclusion. The decision whether or not
to dismiss the criminal complaint against respondent is necessarily
dependent on the sound discretion of the investigating prosecutor
and ultimately, that of the Secretary of Justice. 40
The findings of the prosecutor with respect to the existence or nonexistence of probable cause is subject to the power of review by
the DOJ. Indeed, the Secretary of Justice may reverse or modify the
resolution of the prosecutor, after which he shall direct the
prosecutor concerned either to file the corresponding information
without conducting another preliminary investigation, or to dismiss
or move for dismissal of the complaint or information with notice to
the parties.41 Ordinarily, the determination of probable cause is not
lodged with this Court. Its duty in an appropriate case is confined
to the issue of whether the executive or judicial determination, as
the case may be, of probable cause was done without or in excess
of jurisdiction or with abuse of discretion amounting to want of
jurisdiction.
However, this Court may ultimately resolve the existence or nonexistence of probable cause by examining the records of the
preliminary investigation when necessary for the orderly

administration of justice,42 or to avoid oppression or multiplicity of

actions.43
In reversing the DOJs finding of probable cause, the OP found
merit in the argument of the respondent that the DOJs finding that
she was with Aclan when she went to the residence of Engr. Tria
early in the morning of May 22, 1998, was not sufficiently
established. The OP gave more weight to the affidavit 44 of Calayag
(attached to respondents supplemental pleading on motion for
reconsideration) -- stating that Aclan was not around when they
and respondent, among other visitors, were at Engr. Trias house at
that time -- than that account given by SA Eduarte which was
uncorroborated. As to the double sale allegedly committed by the
respondent from which the latters strong motive to liquidate Engr.
Tria was inferred, the OP found this as a mere expression of opinion
by the investigators considering that Engr. Trias widow, Mrs. Pura
Tria, categorically admitted her knowledge of the said transaction.
Neither was the OP persuaded by the NBIs "kiss of death" theory
since it is but a customary way of greeting a friend to shake hands
and hence it cannot imply that respondent utilized this as a signal
or identification for the gunman to shoot Engr. Tria. Respondents
alleged indifference immediately after Engr. Tria was gunned down
while conversing with her, was also negated by the affidavit of an
employee of Philippine Air Lines based at the Pili Airport, stating
that right after the incident took place he saw respondent in the
radio room in shock and was being given water by another person.
Considering the totality of evidence, the OP was convinced there
was nothing suspicious or abnormal in respondents behavior
before, during and after the fatal shooting of Engr. Tria as to
engender a well-founded belief of her complicity with the killing of
Engr. Tria, thus:
The act of Obias in failing to help the deceased when the latter was
shot should not be taken against her. In a tragic moment such as
the incident, it is safe to assume that one could be overtaken by
shock, grief or fear especially if the one involved is an
acquaintance or a friend, leaving the former unable to act or think
properly. Obias could have been overtaken by shock or grief
making her body unable to function or think properly.

Moreover, the act of Obias in failing to contact or to visit the family

of the deceased during the wake of the latter should not be taken
against her. With rumors circulating that she is a possible primary
suspect over the death of Engr. Tria, and to avoid any unnecessary
confrontation with the family of the latter, whose emotions could
be uncontrollable or animated by anger or revenge, Obias act in
keeping her silence and distance is permissive.
The behavior of Obias before, during and after the incident should
not be taken against her. It is worthy to note that Obias was
confronted with extraordinary situations or circumstances wherein
a definite or common behavior could not be easily formulated or
determined. Ones behavior or act during said extraordinary
situations should not prejudice the actor if the latter failed to act or
behave in such a manner acceptable to all or which, upon
reflection afterwards, could be deemed the more appropriate,
common or acceptable reaction.
Obias actions could be presumed common or acceptable
considering the attendant circumstances surrounding the same,
and they do not evince or show any malice or intent whatsoever. 45
The relevant portion of SA Eduartes affidavit reads:
3. That our first meeting was on or about 10:00 AM of May 25,
1998 at our office. She was accompanied by a certain RODEL
who was introduced as her Office Assistant. On said meeting
she verbally admitted the fact that she was the last person
conversing with Dir. Tria when shot at the airport on or about
10:20 AM of May 22, 1998; that the shooting took place even
before her first step after their short talk, but she could not
identify the assailant/s because she had blacked out or
became senseless because of fear;
4. That our second meeting was on or about 11:20 AM of May
28, 1998 at our office and she was alone then. That she stood
pat on her claim that she was overwhelmed with fear and
became oblivious of her surroundings after the gunshot that
hit Dir TRIA. When asked about the veracity of the information
that she was seen at TRIAs residence at Molave St., Liboton,

Naga City, Atty. Obias admitted that she was indeed at the
residence of Director TRIA at around 7:30 AM of May 22, 1998,
claiming her visit as official matter, she being the lawyer of
the victim in some cases;
5. That finally we met on or about 5:00 PM of June 1, 1998 at
the restaurant of Villa Caceres Hotel, Magsaysay Avenue, Naga
City, upon arrangement made by our former Assistant
Regional Director FRANCISCO "FRANK" OBIAS of NBI (now
retired) and father-in-law of Atty. FANNY OBIAS; That said
meeting materialized when on the morning of the said date,
Atty. FRANK OBIAS visited me at the office asking why her
daughter-in-law FANNY was being implicated in the case of
TRIA. Verbally, he said, FANNY had admitted to him that our
suspect ROBERTO "OBET" ACLAN was with her at the
residence of TRIA at about 7:30 AM on 22 May 1998, but he
(Aclan) was not the triggerman. During this meeting, ATTY.
FRANK OBIAS was also around. Atty. FANNY OBIAS said she
was worried because two (2) men who introduced themselves
as NBI Agents visited her mother at Godofredo Reyes, Sr.,
(GRS) Ragay, Camarines Sur, telling the latter that she,
(FANNY) was being tagged as the finger (identifier of the
victim to the assailant) in the case of TRIA. This matter causes
anxiety to her mother, she said. On said meeting, she
admitted OBET ACLAN was with her at the residence of TRIA
on or about 7:30 AM on May 22, 1998, and further, that OBET
ACLAN was actually at the Pili Airport on that morning but
insisted that ROBERTO "OBET" ACLAN was not the triggerman;
x x x.46 (Emphasis supplied.)
In its Comment filed before the CA, the Solicitor General argued
that the alleged "interlocking circumstantial evidence" is pure
speculation. To render even a preliminary finding of culpability
based thereon does not sit well with the cherished "right to be
presumed innocent" under Section 14 (2), Article III of the 1987
Constitution. Moreover, the case for the prosecution must stand or
fall on its own merit and cannot be allowed to draw strength from
the weakness of evidence for the defense.47

Petitioners, however, maintain that the records are replete with

abundant proof of respondents complicity in the murder of Engr.
Tria. They cite the following circumstances showing the existence
of probable cause against the respondent: (1) In a radio interview
in Naga City sometime in August 1998, respondent admitted that
Aclan is her relative and that she is close to the family of Ona; (2)
Respondent was present at the residence of Engr. Tria in the
morning of May 22, 1998 between 7:00 to 7:30 a.m. with
passengers in her vehicle waiting outside, and when later she was
invited by the NBI as possible witness considering that she was the
last person seen talking to Engr. Tria before the latter was gunned
down at the airport, respondent admitted to SA Eduarte that Aclan
was with her that morning at the residence of Engr. Tria; (3) The
pre-arranged signal provided by respondent was in the form of a
handshake while Ona was at the stairway observing the two, and
thereupon Ona waited for the right moment to shoot Engr. Tria from
behind; (4) Respondent despite having claimed to be a friend of
the Tria family, just left the scene of the crime without asking for
help to render assistance to her fallen friend; instead, she just
boarded the plane as if no astounding event took place before her
very eyes which snuffed the life of her longtime client-friend; and
(5) In a conduct unbecoming of Filipinos, respondent never
bothered to see the grieving family of Engr. Tria at anytime during
the wake, burial or thereafter, and neither did she give them any
account of what she saw during the shooting incident, which does
not constitute normal behavior.
Probable cause is defined as the existence of such facts and
circumstances as would excite the belief in a reasonable mind,
acting on the facts within the knowledge of the prosecutor, that the
person charged was guilty of the crime for which he was
prosecuted.48 It is a reasonable ground of presumption that a
matter is, or may be, well-founded, such a state of facts in the
mind of the prosecutor as would lead a person of ordinary caution
and prudence to believe, or entertain an honest or strong
suspicion, that a thing is so. The term does not mean "actual and
positive cause" nor does it import absolute certainty. It is merely
based on opinion and reasonable belief. 49 A finding of probable
cause merely binds over the suspect to stand trial; it is not a
pronouncement of guilt.50

On the other hand, conspiracy exists when two or more persons

come to an agreement concerning the commission of a felony and
decide to commit it.51 Direct proof of previous agreement to
commit a crime is not necessary. Conspiracy may be shown
through circumstantial evidence, deduced from the mode and
manner in which the offense was perpetrated, or inferred from the
acts of the accused themselves when such lead to a joint purpose
and design, concerted action, and community of interest. 52
We reverse the OPs ruling that the totality of evidence failed to
establish a prima facie case against the respondent as a
conspirator in the killing of Engr. Tria.
To begin with, whether or not respondent actually conspired with
Aclan and Ona need not be fully resolved during the preliminary
investigation. The absence or presence of conspiracy is factual in
nature and involves evidentiary matters. The same is better left
ventilated before the trial court during trial, where the parties can
adduce evidence to prove or disprove its presence.53
Preliminary investigation is executive in character. It does not
contemplate a judicial function. It is essentially an inquisitorial
proceeding, and often, the only means of ascertaining who may be
reasonably charged with a crime.54 Prosecutors control and direct
the prosecution of criminal offenses, including the conduct of
preliminary investigation, subject to review by the Secretary of
Justice. The duty of the Court in appropriate cases is merely to
determine whether the executive determination was done without
or in excess of jurisdiction or with grave abuse of discretion.
Resolutions of the Secretary of Justice are not subject to review
unless made with grave abuse. 55
After a careful evaluation of the entire evidence on record, we find
no such grave abuse when the Secretary of Justice found probable
cause to charge the respondent with murder in conspiracy with
Aclan and Ona. The following facts and circumstances established
during preliminary investigation were sufficient basis to incite
reasonable belief in respondents guilt: (a) Motive - respondent had
credible reason to have Engr. Tria killed because of the impending
criminal prosecution for estafa from her double sale of his lot prior

to his death, judging from the strong interest of Engr. Trias family
to run after said property and/or proceeds of the second sale to a
third party; (b) Access - respondent was close to Engr. Trias family
and familiar with his work schedule, daily routine and other
transactions which could facilitate in the commission of the crime
eventually carried out by a hired gunmen, one of whom (Aclan) she
and her father categorically admitted being in her company while
she visited Engr. Tria hours before the latter was fatally shot at the
airport; (c) Suspicious Behavior -- respondent while declaring such
close personal relationship with Engr. Tria and even his family,
failed to give any satisfactory explanation why she reacted
indifferently to the violent killing of her friend while they conversed
and shook hands at the airport. Indeed, a relative or a friend would
not just stand by and walk away from the place as if nothing
happened, as what she did, nor refuse to volunteer information
that would help the authorities investigating the crime, considering
that she is a vital eyewitness. Not even a call for help to the people
to bring her friend quickly to the hospital. She would not even dare
go near Engr. Trias body to check if the latter was still alive.
All the foregoing circumstances, in our mind, and from the point of
view of an ordinary person, lead to a reasonable inference of
respondents
probable
participation
in
the
well-planned
assassination of Engr. Tria. We therefore hold that the OP in
reversing the DOJ Secretarys ruling, and the CA in affirming the
same, both committed grave abuse of discretion. Clearly, the OP
and CA arbitrarily disregarded facts on record which established
probable cause against the respondent.
WHEREFORE, premises considered, the petition is hereby
GRANTED. The Decision dated August 14, 2006 and Resolution
dated December 11, 2006 of the Court of Appeals in CA-G.R. SP No.
86210 are REVERSED and SET ASIDE. The January 25, 2000
Resolution of then Justice Secretary Serafin Cuevas modifying the
July 2, 1999 resolution of the Provincial Prosecutor of Camarines
Sur and directing the latter to include respondent in the
information for murder filed against Aclan and Ona is hereby
REINSTATED and UPHELD.
No costs. SO ORDERED.

A.M. No. MTJ-07-1666 (Formerly A.M. OCA I.P.I. No. 05-1761MTJ) Sept 5, 2012
GERLIE M. UY and MA. CONSOLACION T. BASCUG,
Complainants, vs. JUDGE ERWIN B. JAVELLANA, MUNICIPAL
TRIAL COURT, LA CASTELLANA, NEGROS OCCIDENTAL,
Respondent.
DECISION
LEONARDO-DE CASTRO, J.:
This administrative case arose from a verified complaint 1 for "gross
ignorance of the law and procedures, gross incompetence, neglect
of duty, conduct improper and unbecoming of a judge, grave
misconduct and others," filed by Public Attorneys Gerlie 2 M. Uy (Uy)
and Ma. Consolacion T. Bascug (Bascug) of the Public Attorneys
Office (PAO), La Carlotta District, against Presiding Judge Erwin 3 B.
Javellana (Javellana) of the Municipal Trial Court (MTC), La
Castellana, Negros Occidental.
Public Attorneys Uy and Bascug alleged the following in their
complaint:
First, Judge Javellana was grossly ignorant of the Revised Rule on
Summary Procedure. Public Attorneys Uy and Bascug cited several
occasions as examples: (a) In Crim. Case No. 04-097, entitled
People v. Cornelio, for Malicious Mischief, Judge Javellana issued a
warrant of arrest after the filing of said case despite Section 16 of
the Revised Rule on Summary Procedure; (b) In Crim. Case No. 04075, entitled People v. Celeste, et al., for Trespass to Dwelling,
Judge Javellana did not grant the motion to dismiss for noncompliance with the Lupon requirement under Sections 18 and
19(a) of the Revised Rule on Summary Procedure, insisting that
said motion was a prohibited pleading; (c) Also in People v. Celeste,
et al., Judge Javellana refused to dismiss outright the complaint
even when the same was patently without basis or merit, as the

affidavits of therein complainant and her witnesses were all

hearsay evidence; and (d) In Crim. Case No. 02-056, entitled
People v. Lopez, et al., for Malicious Mischief, Judge Javellana did
not apply the Revised Rule on Summary Procedure and, instead,
conducted a preliminary examination and preliminary investigation
in accordance with the Revised Rules of Criminal Procedure, then
set the case for arraignment and pre-trial, despite confirming that
therein complainant and her witnesses had no personal knowledge
of the material facts alleged in their affidavits, which should have
been a ground for dismissal of said case.Second, Judge Javellana
gave the impression that he was a co-agent in a surety company
with a certain Leilani "Lani" Manunag (Manunag). Judge Javellana
had conveyed to the public on several occasions that Manunag was
in a special position to influence him in granting provisional liberty
to the accused.4 In different cases, Judge Javellana (a) instructed
the wife of an accused to file the Motion to Reduce Bond prepared
by the PAO with Manunag, leading the wife to believe that
Manunag was a court personnel, hence, said Motion was never filed
with the MTC and, instead of the cash bond the accused intended
to post, the accused was released on a surety bond issued by
Manunags company for which the accused still had to pay
premium;5 (b) reduced the bail from P 40,000.00 to P 30,000.00,
consistent with the reduced bail amount Manunag instructed the
representative of the accused to seek, not to P 10,000.00 as
prayed for by the PAO in the Motion for Reduction of Bail or to P
20,000.00 as recommended by the Chief of Police; 6 (c) did not warn
Manunag against getting involved in court processes as she was
engaged in surety insurance and did not even question a counteraffidavit of an accused prepared by "Lani;" 7 (d) instructed the
relatives of the accused to go to Manunag who knew how to
"process" an affidavit of desistance, and when said relatives did
approach Manunag, the latter charged them fees;8 (e) did not set
the Motion to Reduce Bail for hearing but granted the same
because it was filed by "the intimate friend of judge who is an
agent of surety" and took cognizance of the amount of premium for
the surety bond in determining the amount of bail; 9 (f) denied the
Motion to Extend Time to File Counter-Affidavit for violation of the
three-day notice rule, but granted the Motion to Reduce Bail
facilitated by Manunag even when it was filed in violation of the
same rule;10 and (g) issued warrants of arrest under questionable
circumstances, more particularly described in the immediately

succeeding paragraph, in which cases, the bail bonds of the

accused were facilitated by Manunag.

whom Judge Javellana had an axe to grind, while the latter motion
was facilitated by Manunag.

Third, Judge Javellana violated Section 6(b), Rule 112 of the

Revised Rules of Criminal Procedure and issued warrants of arrest
without propounding searching questions to the complainants and
their witnesses to determine the necessity of placing the accused
under immediate custody. As a result, Judge Javellana issued
warrants of arrest even when the accused had already voluntarily
surrendered or when a warrantless arrest had been effected.

Seventh, Judge Javellana also adopted the mantra that the

"litigants are made for the courts" instead of "courts for the
litigants." In Crim. Case No. 03-104, entitled People v. Fermin, the
accused, assisted by Public Attorney Uy, pleaded guilty to the
crime
of
attempted
homicide.
The
accused
filed
a
Petition/Application for Probation, prepared by the PAO but signed
only by the accused. Judge Javellana refused to accept said
Petition/Application and required the father of the accused to
return the Petition/Application all the way from the MTC in La
Castellana to the PAO in La Carlota, despite the great distance
between these two cities. The PAO already adopted the practice of
preparing the motions for extension of time to file counter-affidavit,
motions for release of minor, or applications for probation, but
letting the accused themselves or their parents (in case the
accused were minors) sign the motions/applications, thus, enabling
the PAO to serve as many clients as possible despite the lack of
lawyers. Such practice is not prohibited considering that under Rule
138, Section 34 of the Rules of Court, a party may conduct his
litigation in a municipal court "in person, with an aid of an agent or
friend appointed by him for the purpose or with aid of an
attorney."16

Fourth, Judge Javellana failed to observe the constitutional rights of

the accused as stated in Section 12(1), Article III of the
Constitution. Judge Javellana set Crim. Case No. 03-097, entitled
People v. Bautista,11 for preliminary investigation even when the
accused had no counsel, and proceeded with said investigation
without informing the accused of his rights to remain silent and to
have a counsel.
Fifth, Judge Javellana was habitually tardy. The subpoena in Civil
Case No. 05-001, entitled Villanueva v. Regalado, 12 only stated that
the hearing would be "in the morning," without indicating the time.
Judge Javellana failed to arrive for the pre-trial of the case set in
the morning of April 14, 2005. Judge Javellana was still a no-show
when the pre-trial was reset in the morning of April 15, 2005 and
May 3, 2005. Finally, anticipating Judge Javellanas tardiness, the
pre-trial was rescheduled at 1:30 in the afternoon of another date.
Sixth, Judge Javellana whimsically or inconsistently implemented
laws and rules depending on stature of the parties, persons
accompanying the parties, lawyers of the parties, and his personal
relations with the parties/lawyers. Judge Javellana, in several
cases,13 denied or refused to receive Motions for Extension of Time
to File Counter-Affidavits signed only by the accused, yet in other
cases,14 granted such motions. In another case,15 Judge Javellana
denied the Motion to Extend Time to File Counter-Affidavit for
violation of the three-day notice rule, but granted the Motion to
Reduce Bail, which was in violation of the same rule. Judge
Javellanas inconsistent and irregular ruling could be due to the fact
that the former motion was filed by Public Attorney Bascug, with

Eighth, Judge Javellana did not observe the proper procedure in

airing his complaints against public attorneys. Judge Javellana
rebuked the public attorneys in the Orders he issued. In one such
Order,17 Judge Javellana misleadingly stated that Public Attorney Uy
"has already expressed her desire not to attend todays hearing,"
when Public Attorney Uy actually waived her personal appearance
at said hearing as she had to attend the hearing of a criminal case
at the MTC of Pontevedra. In another Order, 18 Judge Javellana
reported, prior to confirmation, that the PAO lawyer refused to
prepare the motion for extension of time to file counter-affidavit,
thus, prompting the accused to hire a special counsel. Additionally,
Judge Javellana improperly filed his complaints against the public
attorneys appearing before his court with the Department of Justice
or the District Public Attorney (DPA) of Bacolod City, instead of the
appropriate authorities, namely, the DPA of La Carlota City or the
PAO Regional Director. Moreover, Judge Javellana had required

Public Attorney Bascug to explain why she allowed the accused in

Crim. Case No. 03-090, entitled People v. Earnshaw, to sign the
Motion for Extension of Time to File Counter-Affidavits, even when
she was the one who prepared said Motion. Judge Javellana did not
verify first whether it was indeed Public Attorney Bascug who
prepared the Motion in question, thus, violating her right to due
process. Also, Judge Javellana was already encroaching upon the
domain of the PAO. It is the concern of the PAO and not the court
"as to how the Public Attorneys Office will be managed,
specifically, what policies to use in the acceptance of cases
brought to its Office, how one could avail of its legal services, at
what point in time one is considered a client of said Office x x x ." 19
Lastly, to support their complaint, Public Attorneys Uy and Bascug
attached a hand-written note20 relating the observations of an
anonymous member of Judge Javellanas staff, viz:
Page One
1. Honorable Judge reports to duty at past 11:00 A.M. and
hurriedly conducts preliminary investigations or preliminary
examinations after making party litigants wait from 8:00 A.M.
until 11:00 A.M. There had been occasions when litigants
became impatient for waiting for several hours for the Judges
arrival and would leave the court. Judge then would forego the
examination.
2. Judge spends more time conversing in cafeterias than stay
in the court. Litigants who are in a hurry to go home would
bring the affidavits to the cafeteria for Judges signature.
3. Most of the time, in Court, in front of litigants as audience
and even while solemnizing civil marriage Judge would keep
repeating these remarks:

I am an intelligent Judge.
I am the counsel of the famous Gargar-Lumangyao and Spider
Hunter cases and I have caused the execution of Col. Torres.
I am not under the Mayor or the Chief of Police.
and other remarks as if he is the only intelligent, credible and
qualified judge in the whole world.

4. Judge tolerates the negligence of duty of his court utility

worker. Said utility worker never reports to open or close the
court; he never cleans the courtroom; most of the time he
stays in his Karaoke bar which is some few meters away from
the MTC of La Castellana. As a matter of fact the MTC of La
Castellana is the dirtiest of all the courtrooms in the whole
province.
Page Two
5. Motion for Extension of Time to File Counter Affidavit in CC
03-090-Pp. vs. Efraim Earnshaw made by Atty. Bascug was
denied by Judge on the ground that it was the accused who
signed the Motion and Atty. Bascug was ordered to explain.
Other motions had been denied for not meeting the 3-day rule
but others were granted.
6. Motion to Reduce Bail received by court on January 7, 2004
was not set for hearing but was ordered granted because it
was filed by the intimate friend of the judge who is an agent of
Surety. This did not meet the 3-day rule CC 03-108 Pp. vs.
Lowell Panaguiton for "Homicide."
Page Three

I am a criminal lawyer.
I did not come from the DAR or the COMELEC.

1. Criminal Case No. 03-102- Julius Villanueva "Frustrated

Homicide" Urgent Motion to Stay Transfer to Provincial Jail -

Filed 1/21/2004 was not heard but order was issued January
21, 2004 also.
2. Criminal Case No. 03-090Physical Injuries" January
arraignment but upon order of
of Melanie Pabon and Motion
dismissed.

Efraim Earnshaw "Less Serious

26, 2004 - Scheduled for
Judge on affidavit of Desistance
to Dismiss was filed and case

3. Deonaldo Lopez Case - Motion for Extension of Time to File

Counter Affidavit dated 10-3-02 was signed by accused
namely Deonaldo Lopez, Jojo Balansag, Junnel Jorge, and
Bernie Bello - granted by judge.21
Based on the foregoing, Public Attorneys Uy and Bascug prayed
that Judge Javellana be removed from the MTC of La Castellana.
In his Comment22 on the complaint against him, Judge Javellana
discounted the allegations of Public Attorneys Uy and Bascug as
"baseless, untruthful, intrigues, malicious and a harassment
tending to intimidate him," and countered as follows:
First, Judge Javellana asserted that he was not grossly ignorant of
the rules of procedure and explained his actions in particular cases:
(a) In People v. Cornelio, Judge Javellana issued a warrant of arrest
for the two accused charged with Malicious Mischief in the exercise
of his judicial discretion, and the necessity of holding the accused
in detention became evident when it was revealed during trial that
the same accused were wanted for Attempted Homicide in Crim.
Case No. 04-096; (b) In People v. Celeste, et al., Judge Javellana
insisted that referral of the dispute (involving an alleged Trespass
to Dwelling) to the Lupong Tagapamayapa was not a jurisdictional
requirement and the Motion to Dismiss on said ground was a
prohibited pleading under the Revised Rule on Summary
Procedure; (c) Still in People v. Celeste, et al., Judge Javellana
refused to dismiss outright the complaint as prayed for by Public
Attorney Uy as the Judge had to accord due process to the
complainant in said case; and (d) In People v. Lopez, et al. another
case for Malicious Mischief, Judge Javellana reiterated that a motion
to dismiss is a prohibited pleading under the Revised Rule on

Summary Procedure and added that he could not dismiss the case
outright since the prosecution has not yet fully presented its
evidence.
Second, Judge Javellana denied acting as the co-agent of Manunag.
Manunag was an Authorized Surety Bond Agent of Commonwealth
Insurance and Surety Bond Company, a bonding company duly
accredited by the Office of the Court Administrator (OCA). The
relationship between Judge Javellana and Manunag was "purely on
official business." That Manunag influenced Judge Javellana in
fixing the amount of bail in several cases was a malicious and
deliberate lie, based on mere speculation and suspicion. Judge
Javellana had consistently granted the reduction of the amount of
bail to only 75%, and not as low as 25%, of the amount stated in
Department Circular No. 89 dated August 29, 2000 of the
Department of Justice (DOJ). Judge Javellana even chided Public
Attorneys Uy and Bascug that as officers of the court, said public
attorneys were duty bound not to demand outrageous reduction of
bail. In addition, Judge Javellana could not warn Manunag to stay
away from "the processes (sic) premises in the Court" because
"everybody are allowed to attend Court proceedings unless
otherwise the attendance of the public is prohibited." 23 Judge
Javellana likewise stated that he could not interfere with the
processing of surety insurance and bond for such was a private
matter between the insurance and bonding company and its
authorized agents. Referring to case records, Judge Javellana
pointed out that he only granted the motions to reduce bail that
complied with the three-day notice rule.
Third, Judge Javellana claimed to have conducted preliminary
examination, asking the complainants and their witnesses
searching questions, before issuing warrants of arrest. According to
Judge Javellana, he would sign the official form of the warrant of
arrest right after the preliminary examination. In some cases, Judge
Javellana was not aware that the accused had already voluntarily
surrendered or was already taken into custody by virtue of a
warrantless arrest because police officers did not timely inform the
court of such fact.

Fourth, Judge Javellana did not violate the constitutional rights of

the accused in People v. Bautista. Judge Javellana argued that while
a judge can ask clarificatory questions during the preliminary
investigation, a preliminary investigation is mandatory only when
the law imposes the penalty of imprisonment of at least four years,
two months, and one day. Judge Javellana further averred that he
always advised litigants to secure the services of a counsel or that
of a public attorney from the PAO. However, even when the public
attorney failed or refused to appear before the court, Judge
Javellana still proceeded with his clarificatory questions since there
was yet no full blown trial for which the accused already needed
the services of a competent lawyer.
Fifth, Judge Javellana explained his failure to arrive for the pre-trial
in Villanueva v. Regalado scheduled on April 14, 2005. Judge
Javellana averred that he had been suffering from diabetes, as
evinced by his medical records from the Supreme Court Health and
Welfare Plan, and on said date, his blood sugar rose to 300, which
caused him to be lethargic, weak, and drowsy.
Sixth, Judge Javellana repudiated the allegation that he applied the
law and ruled whimsically and inconsistently. Judge Javellana
asserted that he "applied the law and the rules according to what
he believes is fair, just and equitable in the exercise of his judicial
discretion."24 Judge Javellana never favored Manunag and in all
criminal cases involving homicide, he had granted the reduction of
bail to P 30,000.00 (75% of the recommended bail of P 40,000.00).
Seventh, Judge Javellana admitted not accepting petitions,
applications, and motions prepared by the PAO but signed only by
the accused, asseverating that public attorneys should affix their
signatures and state their Roll of Attorneys number in every
pleading they file in court. Judge Javellana asked that "if all courts
admits (sic) any pleading filed by any litigant then what will
happen to the practice of law?"25
Eighth, Judge Javellana emphasized that government lawyers, such
as Public Attorneys Uy and Bascug, are paid with peoples money,
so they should be sincere and dedicated to their work and,
whenever possible, go the extra mile to serve poor litigants. Thus,

Judge Javellana reported Public Attorneys Uy and Bascug to higher

PAO officials to guide said public attorneys and not to interfere with
the performance of their functions.
And ninth, Judge Javellana identified the member of his staff who
wrote the note containing more allegations against him as Mr. Ray
D. Pineda (Pineda), Process Server. Judge Javellana described
Pineda as "very abnormal, eccentric and queer in his relationship
with his fellow staff as shown by his quarrelsome attitude and fond
of inciting litigants to criticize the Clerk of Court and other
personnel and most of all his loyalty to the Official of the
Municipality rather than to this Court x x x."26 Judge Javellana
clarified that he often mentioned the Gargar-Lumangyao
Kidnapping with Double Murder Case and the Spider Hunters
Multiple Murder and Multiple Frustrated Murder Case not to boast
but to relay the impression that he meant business as Presiding
Judge. These cases were dubbed as the "Case of the Century" by
then Executive Judge Bernardo Ponferrada of the Regional Trial
Court of Bacolod City (who later became Deputy Court
Administrator) because the same involved big time personalities.
Judge Javellana mentioned the said cases even when solemnizing
marriages because he would then be reading the Holy Scriptures
and he had to highlight that he survived the trials and threats to
his life because of the Holy Bible. Judge Javellana also did not have
a Court Aide who owned a Karaoke Bar whose negligence the judge
was tolerating. Pineda was just "jealous" because he was not
designated by Judge Javellana as Acting Docket Clerk in lieu of Mr.
Vee Caballero who was already on terminal leave prior to
retirement. Judge Javellana further narrated that he had
reprimanded Pineda several times, even in open court. In one of
these instances, it was because Pineda submitted a falsified
information sheet to the Supreme Court Personnel Division, stating
therein that he had never been charged with a criminal offense,
when in truth, he was previously charged with "Physical Injury."
Judge Javellana advised Pineda to rectify the latters records by
executing an affidavit to be submitted to the Supreme Court
Personnel Division, but Pineda did not heed the same.
In the end, Judge Javellana stressed that the charges against him
were baseless and malicious; and the acts being complained of
involved judicial discretion and, thus, judicial in nature and not the

proper subject of an administrative complaint. Judge Javellana

hinted about a conspiracy between the Municipal Mayor, on one
hand, and Public Attorneys Uy and Bascug, on the other. The
Municipal Mayor was purportedly angry at Judge Javellana because
the latter caused the arrest of and heard the cases against the
formers supporters and employees; while Public Attorney Bascug
was suffering from a "Losing Litigants Syndrome" and "Prosecution
Complex," and was influencing Public Attorney Uy, a neophyte
lawyer.
Consequently, Judge Javellana sought the dismissal of the instant
complaint against him.
The Office of the Court Administrator (OCA), in its report 27 dated
January 2, 2006, found Judge Javellana liable for gross ignorance of
the law or procedure when he did not apply the Revised Rule on
Summary Procedure in cases appropriately covered by said Rule;
and (2) gross misconduct when he got involved in business
relations with Manunag, implemented the law inconsistently, and
mentioned his accomplishments for publicity. The OCA thus
recommended that:
1. The instant administrative complaint be REDOCKETED as
a regular administrative matter; and
2. Judge Edwin B. Javellana, MTC, La Castellana, Negros
Occidental be SUSPENDED from office without salary and
other benefits for three (3) months with a STERN WARNING
that repetition of the same or similar acts in the future shall
be dealt with more severely.28
In a Resolution29 dated February 5, 2007, the Court re-docketed the
complaint as a regular administrative matter and required parties
to manifest their willingness to submit the case for resolution on
the basis of the pleadings filed.
On separate dates,30 the parties manifested their willingness to
submit the case for resolution based on the pleadings already filed.

We agree with the findings and conclusions of the OCA, except for
the penalty imposed.
I
Gross Ignorance of the Law
The Revised Rule of Summary Procedure shall govern the following
criminal cases:
SECTION 1. Scope. This Rule shall govern the summary procedure
in the Metropolitan Trial Courts, the Municipal Trial Courts in Cities,
the Municipal Trial Courts, and the Municipal Circuit Trial Courts in
the following cases falling within their jurisdiction.
xxxx
B. Criminal Cases:
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) Violations of Batas Pambansa Bilang 22 (Bouncing Checks
Law).
(5) All other criminal cases where the penalty prescribed by
law for the offense charged is imprisonment not exceeding
six months, or a fine not exceeding one thousand pesos (P
1,000.00), or both, irrespective of other imposable penalties,
accessory or otherwise, or of the civil liability arising
therefrom: Provided, however, That in offenses involving
damage to property through criminal negligence, this Rule
shall govern where the imposable fine does not exceed ten
thousand pesos (P 10,000.00). (Emphasis supplied.)

The cases People v. Cornelio 31 and People v. Lopez, et al.32 pending

before Judge Javellana were both for malicious mischief.
The crime of malicious mischief is committed by any person who
deliberately causes damage to the property of another through
means not constituting arson.33 There are special cases of
malicious mischief which are specifically covered by Article 328 of
the Revised Penal Code, which provides:
ART. 328. Special cases of malicious mischief. Any person who
shall cause damage to obstruct the performance of public
functions, or using any poisonous or corrosive substance; or
spreading any infection or contagion among cattle; or who causes
damage to the property of the National Museum or National
Library, or to any archive or registry, waterworks, road,
promenade, or any other thing used in common by the public, shall
be punished:
1. By prision correccional in its minimum and medium
periods, if the value of the damage caused exceeds 1,000
pesos;
2. By arresto mayor, if such value does not exceed the
above- mentioned amount but is over 200 pesos; and
3. By arresto menor, if such value does not exceed 200
pesos. (Emphasis ours.)
All other cases of malicious mischief shall be governed by Article
329 of the same Code, which reads:
ART. 329. Other mischiefs. The mischiefs not included in the next
preceding article shall be punished:
1. By arresto mayor in its medium and maximum periods, if
the value of the damage caused exceeds 1,000 pesos;

2. By arresto mayor in its minimum and medium periods, if

such value is over 200 pesos but does not exceed 1,000
pesos; and
3. By arresto menor or fine of not less than the value of the
damage caused and not more than 200 pesos, if the amount
involved does not exceed 200 pesos or cannot be estimated.
(Emphasis ours.)
Without any showing that the accused in People v. Cornelio and
People v. Lopez, et al. were charged with the special cases of
malicious mischief particularly described in Article 328 of the
Revised Penal Code, then Article 329 of the same Code should be
applied. If the amounts of the alleged damage to property in
People v. Cornelio and People v. Lopez, et al., P 6,000.0034 and P
3,000.00,35 respectively, are proven, the appropriate penalty for
the accused would be arresto mayor in its medium and maximum
periods which under Article 329(a) of the Revised Penal Code,
would be imprisonment for two (2) months and one (1) day to six
(6) months. Clearly, these two cases should be governed by the
Revised Rule on Summary Procedure.
Judge Javellanas issuance of a Warrant of Arrest for the accused in
People v. Cornelio is in violation of Section 16 of the Revised Rule
on Summary Procedure, categorically stating that "the court shall
not order the arrest of the accused except for failure to appear
whenever required." Judge Javellana never claimed that the
accused failed to appear at any hearing. His justification that the
accused was wanted for the crime of attempted homicide, being
tried in another case, Crim. Case No. 04-096, is totally
unacceptable and further indicative of his ignorance of law. People
v. Cornelio, pending before Judge Javellanas court as Crim. Case
No. 04-097, is for malicious mischief, and is distinct and separate
from Crim. Case No. 04-096, which is for attempted homicide,
although both cases involved the same accused. Proceedings in
one case, such as the issuance of a warrant of arrest, should not be
extended or made applicable to the other.
In People v. Lopez, et al., Judge Javellana conducted a preliminary
investigation even when it was not required or justified. 36

The Revised Rule on Summary Procedure does not provide for a

preliminary investigation prior to the filing of a criminal case under
said Rule. A criminal case within the scope of the Rule shall be
commenced in the following manner:
SEC. 11. How commenced. The filing of criminal cases falling
within the scope of this Rule shall be either by complaint or by
information; Provided, however, That in Metropolitan Manila and in
Chartered Cities, such cases shall be commenced only by
information, except when the offense cannot be prosecuted de
oficio.
The complaint or information shall be accompanied by the
affidavits of the complainant and of his witnesses in such number
of copies as there are accused plus two (2) copies for the courts
files. If this requirement is not complied with within five (5) days
from date of filing, the case may be dismissed.
SEC. 12. Duty of Court.
(a) If commenced by complaint. On the basis of the
complaint and the affidavits and other evidence
accompanying the same, the court may dismiss the case
outright for being patently without basis or merit and order
the release of the accused if in custody.
(b) If commenced by information. When the case is
commenced by information, or is not dismissed pursuant to
the next preceding paragraph, the court shall issue an order
which, together with copies of the affidavits and other
evidence submitted by the prosecution, shall require the
accused to submit his counter-affidavit and the affidavits of
his witnesses as well as any evidence in his behalf, serving
copies thereof on the complainant or prosecutor not later
than ten (10) days from receipt of said order. The
prosecution may file reply affidavits within ten (10) days
after receipt of the counter-affidavits of the defense.
SEC. 13. Arraignment and trial. Should the court, upon a
consideration of the complaint or information and the affidavits

submitted by both parties, find no cause or ground to hold the

accused for trial, it shall order the dismissal of the case; otherwise,
the court shall set the case for arraignment and trial.
If the accused is in custody for the crime charged, he shall be
immediately arraigned and if he enters a plea of guilty, he shall
forthwith be sentenced.
Section 1, Rule 112 of the Revised Rules of Criminal Procedure only
requires that a preliminary investigation be conducted before the
filing of a complaint or information for an offense where the
penalty prescribed by law is at least four (4) years, two (2) months
and one (1) day without regard to the fine. As has been previously
established herein, the maximum penalty imposable for malicious
mischief in People v. Lopez, et al. is just six (6) months.
Judge Javellana did not provide any reason as to why he needed to
conduct a preliminary investigation in People v. Lopez, et al. We
stress that the Revised Rule on Summary Procedure was precisely
adopted to promote a more expeditious and inexpensive
determination of cases, and to enforce the constitutional rights of
litigants to the speedy disposition of cases.37
Judge Javellana cannot be allowed to arbitrarily conduct
proceedings beyond those specifically laid down by the Revised
Rule on Summary Procedure, thereby lengthening or delaying the
resolution of the case, and defeating the express purpose of said
Rule.
We further agree with the OCA that Judge Javellana committed a
blatant error in denying the Motion to Dismiss filed by the accused
in People v. Celeste, et al. and in insisting that said Motion was a
prohibited pleading, even though the case was never previously
referred to the Lupong
Tagapamayapa as required by Sections 18 and 19(a) of the Revised
Rule on Summary Procedure.

The pertinent provisions of the Revised Rule on Summary

Procedure read:
Sec. 18. Referral to Lupon. Cases requiring referral to the Lupon
for conciliation under the provisions of Presidential Decree No.
1508 where there is no showing of compliance with such
requirement, shall be dismissed without prejudice, and may be
revived only after such requirement shall have been complied with.
This provision shall not apply to criminal cases where the accused
was arrested without a warrant.
Sec. 19. Prohibited pleadings and motions. The following
pleadings, motions, or petitions shall not be allowed in the cases
covered by this Rule:
(a) Motion to dismiss the complaint or to quash the complaint or
information except on the ground of lack of jurisdiction over the
subject matter, or failure to comply with the preceding section.
(Emphases ours.)
We see no ambiguity in the aforequoted provisions. A case which
has not been previously referred to the Lupong Tagapamayapa
shall be dismissed without prejudice. A motion to dismiss on the
ground of failure to comply with the Lupon requirement is an
exception to the pleadings prohibited by the Revised Rule on
Summary Procedure. Given the express provisions of the Revised
Rule on Summary Procedure, we find irrelevant Judge Javellanas
argument that referral to the Lupon is not a jurisdictional
requirement. The following facts are undisputed: People v. Celeste,
et al. was not referred to the Lupon, and the accused filed a Motion
to Dismiss based on this ground. Judge Javellana should have
allowed and granted the Motion to Dismiss (albeit without
prejudice) filed by the accused in People v. Celeste, et al.
The Revised Rule on Summary Procedure has been in effect since
November 15, 1991. It finds application in a substantial number of
civil and criminal cases pending before Judge Javellanas court.
Judge Javellana cannot claim to be unfamiliar with the same.

Every judge is required to observe the law. When the law is

sufficiently basic, a judge owes it to his office to simply apply it;
and anything less than that would be constitutive of gross
ignorance of the law. In short, when the law is so elementary, not
to be aware of it constitutes gross ignorance of the law. 38
In Agunday v. Judge Tresvalles, 39 we called the attention of Judge
Tresvalles to Section 2 of the Revised Rule on Summary Procedure
which states that a "patently erroneous determination to avoid the
application of the Revised Rule on Summary Procedure is a ground
for disciplinary action." We went on further to interpret said
provision as follows:
Although the said provision states that "patently erroneous
determination to avoid the application of the Revised Rule on
Summary Procedure is a ground for disciplinary action," the
provision cannot be read as applicable only where the failure to
apply the rule is deliberate or malicious. Otherwise, the policy of
the law to provide for the expeditious and summary disposition of
cases covered by it could easily be frustrated. Hence, requiring
judges to make the determination of the applicability of the rule on
summary procedure upon the filing of the case is the only guaranty
that the policy of the law will be fully realized. x x x. 40 (Emphasis
ours.)
Resultantly, Judge Javellana cannot invoke good faith or lack of
deliberate or malicious intent as a defense. His repeated failure to
apply the Revised Rule on Summary Procedure in cases so
obviously covered by the same is detrimental to the expedient and
efficient administration of justice, for which we hold him
administratively liable.
As for Judge Javellanas refusal to dismiss People v. Lopez, et al.
and People v. Celeste, et al., however, we exonerate him of the
administrative charges for the same. Judge Javellana is correct that
the appreciation of evidence is already within his judicial
discretion.41 Any alleged error he might have committed in this
regard is the proper subject of an appeal but not an administrative
complaint. We remind Judge Javellana though to adhere closely to

the Revised Rule on Summary Procedure in hearing and resolving

said cases.
II
Gross Misconduct

SECTION 2. Judges shall ensure that his or her conduct, both in and
out of court, maintains and enhances the confidence of the public,
the legal profession and litigants in the impartiality of the judge
and of the judiciary.
xxxx

Judges are enjoined by the New Code of Judicial Conduct for the
Philippine Judiciary42 to act and behave, in and out of court, in a
manner befitting their office, to wit:

Canon
PROPRIETY

Canon
INTEGRITY

Propriety and the appearance of propriety are essential to the

performance of all the activities of a judge.

Integrity is essential not only to the proper discharge of the judicial

office but also to the personal demeanor of judges.

SECTION 1. Judges shall avoid impropriety and the appearance of

impropriety in all of their activities.

SECTION 1. Judges shall ensure that not only is their conduct above
reproach, but that it is perceived to be so in the view of a
reasonable observer.

SECTION 2. As a subject of constant public scrutiny, judges must

accept personal restrictions that might be viewed as burdensome
by the ordinary citizen and should do so freely and willingly. In
particular, judges shall conduct themselves in a way that is
consistent with the dignity of the judicial office.

SECTION 2. The behavior and conduct of judges must reaffirm the

people's faith in the integrity of the judiciary. Justice must not
merely be done but must also be seen to be done.
xxxx
Canon
IMPARTIALITY

xxxx
SECTION 8. Judges shall not use or lend the prestige of the judicial
office to advance their private interests, or those of a member of
their family or of anyone else, nor shall they convey or permit
others to convey the impression that anyone is in a special position
improperly to influence them in the performance of judicial duties.

Impartiality is essential to the proper discharge of the judicial

office. It applies not only to the decision itself but also to the
process by which the decision is made.

xxxx

SECTION 1. Judges shall perform their judicial duties without favor,

bias or prejudice.

SECTION 14. Judges shall not knowingly permit court staff or others
subject to their influence, direction or authority, to ask for, or
accept, any gift, bequest, loan favor in relation to anything done or
to be done or omitted to be done in connection with their duties or
functions.
xxxx

Canon
EQUALITY

Ensuring equality of treatment to all before the courts is essential

to the due performance of the judicial office.
xxxx
SECTION 2. Judges shall not, in the performance of judicial duties,
by words or by conduct, manifest bias or prejudice towards any
person or group on irrelevant grounds.
xxxx
SECTION 2. Judges shall not, in the performance of judicial duties,
by words or conduct, manifest bias or prejudice towards any
person or group on irrelevant grounds.
SECTION 3. Judges shall carry out judicial duties with appropriate
consideration for all persons, such as the parties, witnesses,
lawyers, court staff and judicial colleagues, without differentiation
on any irrelevant ground, immaterial to the proper performance of
such duties.
xxxx
Canon
COMPETENCE AND DILIGENCE
Competence and diligence
performance of judicial office.

are

prerequisites

to

the

due

xxxx
SECTION 5. Judges shall perform all judicial duties, including the
delivery of reserved decisions, efficiently, fairly and with
reasonable promptness.

SECTION 6. Judges shall maintain order and decorum in all

proceedings before the court and be patient, dignified and
courteous in relation to litigants, witnesses, lawyers and others
with whom the judge deals in an official capacity. Judges shall
require similar conduct of legal representatives, court staff and
others subject to their influence, direction or control.
Judge Javellana had violated the aforequoted canons/standards in
several instances.
Judge Javellana did not admit having a business relationship with
Manunag, contrary to the finding of the OCA. What Judge Javellana
stated in his Comment was that his relationship with Manunag was
"purely on official business," since Manunag was a duly authorized
agent of a credited bonding company. Nonetheless, Judge
Javellana, by referring the accused who appeared before his court
directly to Manunag for processing of the bail bond of said accused,
gave the impression that he favored Manunag and Manunags
bonding company, as well as the reasonable suspicion that he
benefitted financially from such referrals. Judge Javellana should
remember that he must not only avoid impropriety, but the
"appearance of impropriety" as well.
Moreover, Judge Javellana was conspicuously inconsistent in
Granting43 or denying44 motions for extension of time to file
pleadings which were signed only by the accused. Judge Javellana
reasoned in his Comment that the PAO lawyers who prepared the
motions should have signed the same as counsels for the accused,
but this only explained Judge Javellanas denial of said motions. It
did not address why, in other cases, Judge Javellana had granted
similar motions signed only by the accused. Without any
satisfactory basis for the difference in his ruling on these motions,
Judge Javellana had acted arbitrarily to the prejudice of the PAO
lawyers.
Judge Javellana himself admitted that he often mentioned his
previous accomplishments as counsel in big and controversial
cases, claiming that he only did so to impress upon the parties that
he meant business and that he relied greatly upon God to survive
the trials and threats to his life. We are not persuaded.

The previous Code of Judicial Conduct specifically warned the

judges against seeking publicity for personal vainglory. 45 Vainglory,
in its ordinary meaning, refers to an individuals excessive or
ostentatious pride especially in ones own achievements. 46 Even no
longer explicitly stated in the New Code of Judicial Conduct, judges
are still proscribed from engaging in self-promotion and indulging
their vanity and pride by Canons 1 (on Integrity) and 2 (on
Propriety) of the New Code.
We have previously strongly reminded judges in that:
Canon 2, Rule 2.02 of the Code of Judicial Conduct says in no
uncertain terms that "a judge should not seek publicity for personal
vainglory." A parallel proscription, this time for lawyers in general,
is found in Rule 3.01 of the Code of Professional Responsibility: "a
lawyer shall not use or permit the use of any false, fraudulent,
misleading, deceptive, undignified, self-laudatory or unfair
statement or claim regarding his qualifications or legal services."
This means that lawyers and judges alike, being limited by the
exacting standards of their profession, cannot debase the same by
acting as if ordinary merchants hawking their wares. As succinctly
put by a leading authority in legal and judicial ethics, "(i)f lawyers
are prohibited from x x x using or permitting the use of any
undignified
or
self-laudatory
statement
regarding
their
qualifications or legal services (Rule 3.01, Code of Professional
Responsibility), with more reasons should judges be prohibited
from seeking publicity for vanity or self-glorification. Judges are not
actors or actresses or politicians, who thrive by publicity. 47
Judge Javellanas actuations as described above run counter to the
mandate that judges behave at all times in such a manner as to
promote public confidence in the integrity and impartiality of the
judiciary.48 We cannot stress enough that "judges are the visible
representations of law and justice. They ought to be embodiments
of competence, integrity and independence. In particular,
municipal judges are frontline officers in the administration of
justice. It is therefore essential that they live up to the high
standards demanded by the Code of Judicial Conduct."49

For his violations of the New Code of Professional Conduct, Judge

Javellana committed gross misconduct. We have defined gross
misconduct as a "transgression of some established and definite
rule of action, more particularly, unlawful behavior or gross
negligence by the public officer."50
There is no sufficient evidence to hold Judge Javellana
administratively liable for the other charges against him contained
in the complaint. Yet, we call Judge Javellanas attention to several
matters pointed out by the OCA, that if left unchecked, may again
result in another administrative complaint against the judge: (1)
notices of hearing issued by Judge Javellanas court must state the
specific time, date, and place51; (2) in case Judge Javellana is
unable to attend a hearing for any reason, he must inform his Clerk
of Court as soon as possible so that the latter can already cancel
the hearing and spare the parties, counsels, and witnesses from
waiting52; and (3) he must take care in ascertaining the facts and
according due process to the parties concerned before levying
charges of incompetence or indifference against the PAO lawyers
appearing before his court.53
III
Penalty
Gross ignorance of the law54 and gross misconduct constituting
violations of the Code of Judicial Conduct 55 are classified as serious
charges under Rule 140, Section 8 of the Revised Rules of Court,
and penalized under Rule 140, Section 11(a) of the same Rules by:
1) Dismissal from the service, forfeiture of all or part of the
benefits as the Court may determine, and disqualification
from reinstatement or appointment to any public office,
including government-owned or controlled corporations.
Provided, however, that the forfeiture of benefits shall in no
case include accrued leave credits;
2) Suspension from office without salary and other benefits
for more than three (3) but not exceeding six (6) months;
or

3) A fine of more than P 20,000.00 but not exceeding P

40,000.00
The OCA recommended that Judge Javellana be suspended without
salary and benefits for three months.1vvph!1 Given the gravity
and number of violations committed by Judge Javellana, we deem it
appropriate to impose suspension without salary and benefits for a
period of three months and one day.
WHEREFORE, Judge Erwin B. Javellana is found GUILTY of gross
ignorance of the law and gross misconduct. He is SUSPENDED from
office without salary and other benefits for a period of three (3)
months and one (1) day with a STERN WARNING that the repetition
of the same or similar acts in the future shall be dealt with more
severely. Let a copy of this Decision be attached to his records with
this Court.
SO ORDERED.

[G.R.
Nos.
94511-13.
September
18,
1992.]
PEOPLE OF THE PHILIPPINES,
Plaintiff-Appellee, v.
ALEJANDRO
C.
VALENCIA,
Accused-Appellant.
The Solicitor General for Plaintiff-Appellee
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY; NO STANDARD
BEHAVIOR WHEN ONE IS CONFRONTED WITH A SHOCKING
INCIDENT; CASE AT BAR. Arlyn B. Jimenez testified that as she
and her son, Samuel were about to eat, she saw "Ponga" holding a
sumpak a few feet away from her open door. Seized with fear, she
immediately closed the door because whenever she sees a sumpak
she feels afraid. Momentarily thereafter, a shot was fired through
her door, hitting her children. With her two children in serious
condition Arlyn rushed them to the Philippine General Hospital, and
in her state of hysteria and shock, Arlyn was in no position to tell
the police investigator who shot her children, nor recall whether a
rumble preceded the shooting or not. All that she could tell the
police at that point in time was that the sumpak pellets passed
through her shanty door, which she had just closed. Arlyns
testimony should be considered in the light of the fact that there is

no standard of behavior when one is confronted with a shocking

incident, especially so when the person whose testimony is elicited
is
part
of
that
shocking
incident.
2. ID.; ID.; ID.; FINDINGS OF FACT OF THE TRIAL COURT, GENERALLY
ENTITLED ON APPEAL. Settled is the rule that the findings of the
trial court on the credibility of the witnesses are accorded great
respect and finality in the appellate court where the same are
supported
by
the
evidence
on
record.
3. ID.; CRIMINAL PROCEDURE; INFORMATION; CAN BE FILED
WITHOUT A PRELIMINARY INVESTIGATION AGAINST AN ACCUSED
ARRESTED WITHOUT WARRANT. A person who is lawfully
arrested without a warrant pursuant to paragraph 1(b), Section 5,
Rule 113, Rules of Court should be delivered to the nearest police
station and proceeded against in accordance with Rule 112,
Section 7. Under said Section 7, Rule 112, the prosecuting officer
can file the Information in court without a preliminary investigation,
which
was
done
in
the
accused-appellants
case.
4. ID.; ID.; PRELIMINARY INVESTIGATION; DEEMED WAIVED WHEN
NOT INVOKED. Since the records do not show whether the
accused-appellant asked for a preliminary investigation after the
case had been filed in court, as in fact, the accused-appellant
signified his readiness to be arraigned, the Court can only conclude
that he waived his right to have a preliminary investigation, when
he did, in fact, pleaded "Not Guilty" upon his arraignment.
5. ID.; EVIDENCE; ADMISSIBILITY; CONFESSION ALLEGEDLY
OBTAINED BY FORCE, NOT PRESENTED IN CASE AT BAR. As to
the appellants contention in his Brief that he was likewise tortured
into confessing that he fired the "sumpak," a careful review of the
records and exhibits does not reveal that the prosecution
presented his confession, if any, during the trial. His conviction was
not based on his alleged confession but on the strength of the
testimony
of
the
victims
mother.
6. ID.; ID.; WEIGHT AND SUFFICIENCY; CLAIM OF TORTURE, NOT
GIVEN WEIGHT IN THE ABSENCE OF FORMAL COMPLAINT.
Accused-appellants claim of police brutality cannot be given
weight as he never formally complained to the police or to the
fiscal nor presented any medical certificate to prove the same.
7. CIVIL LAW; DAMAGES; INDEMNITY FOR DEATH RAISED TO

P50,000.00. In Criminal Case No. 89-72061 the death indemnity

is increased to FIFTY THOUSAND (P50,000.00) PESOS in
consonance with existing jurisprudence.

Barredo-Jimenez, the amount of ONE THOUSAND FIVE HUNDRED

PESOS (P1,500.00) for his medical and hospitalization expenses,
without subsidiary imprisonment in case of insolvency, and to pay
the costs.

DECISION
NOCON, J.:
"Where there is smoke, there is a fire!" is an old saying which is
applicable in the appeal at bar considering that the accusedappellant was convicted mainly on circumstantial evidence.
Accused-appellant Alejandro Valencia y Canaria appeals the
Decision of the Regional Trial Court of Manila, branch 12, in
Criminal Case Nos. 89-72061, and 89-72062 1 convicting him of (1)
Homicide with the use of an unlicensed firearm and (2) Less
Serious Physical Injuries, the dispositive portion of which is as
follows:
"WHEREFORE, in the light of the foregoing considerations, the
Court finds the accused, ALEJANDRO VALENCIA y CANARIA, guilty
beyond
reasonable
doubt

"1. In Criminal Case No. 89-72061 - of the crime of HOMICIDE (with

the use of an unlicensed firearm), as defined and penalized in
Section 1, Presidential Decree No. 1866, as amended, and
accordingly, hereby sentences him to suffer the penalty of
reclusion perpetua (life imprisonment) with the accessory penalties
provided for by law; to pay to the heirs of Annabelle Jimenez,
herein represented by her mother, Arlyn Barredo-Jimenez, the
amount of FIVE THOUSAND PESOS (P5,000.00) for medical and
hospitalization and funeral expenses; the amount of THIRTY
THOUSAND PESOS (P30,000.00) as death indemnification, and the
sum of TEN THOUSAND PESOS (P10,000.00) as moral damages, all
without subsidiary imprisonment in case of insolvency and to pay
the
costs;
"2. In Criminal Case No. 98-72062 - of the crime of LESS SERIOUS
PHYSICAL INJURIES, as defined and penalized under Article 265,
Revised Penal Code, which is a lesser offense to that charged in the
afore-quoted information and, accordingly, hereby sentences him
to suffer the penalty of imprisonment of SIX (6) MONTHS of arresto
mayor, with the accessory penalties provided for by law: to pay to
the victim, Samuel B. Jimenez, Jr., represented by his mother, Arlyn

"In the service of his sentences, the accused shall be credited with
the full time during which he underwent preventive imprisonment,
provided he voluntarily agreed in writing to abide by the same
disciplinary rules imposed upon convicted prisoners; otherwise, he
shall be entitled to only four-fifths (4/5) thereof (Article 29, Revised
Penal Code, as amended by Republic Act No. 6127).
"SO ORDERED."
The Peoples version of the facts of the case as summarized by the
Solicitor General is as follows:
"Arlyn Barredo-Jimenez, her two children, Annabelle and Samuel,
Jr., aged five and three, respectively, and her mother, are residents
of 2008 F. Muoz St., Paco, Manila. At about 9:00 p.m. of March 19,
1989, as she was about to eat supper, she noticed appellant
standing five steps away from the open door of her house and
holding a sumpak, a homemade shotgun. Seized with fear, she
closed the door. After a few moments, she heard a burst of gunfire.
This was followed by cries of pain from her children inside the
house. Seeing her children bloodied, she immediately went outside
and shouted for help. As she did so, she saw appellant running
away, carrying the sumpak. Two neighbors assisted Jimenez in
bringing the injured children to the Philippine General Hospital (tsn,
pp. 2-5, 8, 17, Aug. 7, 1989).
"That same evening, Patrolman Renato Marquez, a homicide
investigator, interviewed Jimenez at the hospital about the
shooting incident. Since she was still experiencing shock over the
incident Jimenez forgot to mention the name of appellant as the
one who shot her children (tsn, pp. 4, 14, Aug. 21, 1989).
"Acting on the report of a barangay tanod, Patrolmen Roberto
Cajiles, Romeo de la Pea and Carlos Castaeda, assigned at the
Ong Detachment, Police Station No. 5, conducted an investigation
of the shooting incident in the house of Jimenez. At the time,
Jimenez and her injured children were already in the hospital.
Nevertheless, Pat. Cajiles was able to interview the mother of
Jimenez, the barangay captain, a certain Josie, and appellants

brother, Rolando, who all mentioned appellant as the gunwielder.

Moreover, the policemen discovered the presence of six pellet
holes and one big hole with the size of the circumference of a
shotgun bullet on the door of the house of Jimenez. Three pellets
were also found at the crime scene (tsn. pp. 3-6; 9, 10, Sept. 4,
1989).
"Early next morning, the three policemen were led by Rolando
Valencia to the residence of Sonia Castillo, his aunt, where he
believed appellant was sleeping. The police apprehended appellant
there and took him to the Ong Detachment for initial investigation
(tsn, pp. 70 11-13, Sept. 4, 1989). He was indorsed to the police
headquarters for further investigation in the evening of March 22,
1989 (tsn. p. 7, Aug. 21, 1989). At 12:20 a.m. of the following day,
one of the injured children, Annabelle, died as a result of the
gunshot wounds she suffered (Exh. H). The other child, Samuel Jr.,
who was shot in the right forearm, was discharged from the
hospital one week after the incident, but needed two (2) more
weeks for healing (tsn. p. 3, Aug. 21. 1989).
"On March 26, 1989, Arlyn Jimenez executed a sworn statement
(Exh. B) wherein she identified appellant as the culprit. On March
30, 1989, a certain Ramon Bacnotan executed a sworn statement
(Exh. J) and turned over to the police the sumpak (Exh. A) allegedly
used by appellant in the shooting of the two children." 3
Accused-appellants version of the case is that:
At about 5:00 p.m. or 6:00 p.m. of March 19, 1989, Accusedappellant and his co-workers together with his father were in his
house drinking several bottles of beer since it was a Sunday and
they have just received their wages.
At about 9:00 p.m., they separated and he proceeded to his aunts
house to sleep. Since his uncle died he used to keep her aunt and
her six children company for want of a male companion.
About midnight of March 19, 1989, his Auntie, SONIA CANARIA
CASTILLO, woke him up as his brother, ROLANDO VALENCIA,
knocked at their door. As she opened the door, she saw Rolando
accompanied by several policeman who handcuffed the accused
and brought him to the ONG DETACHMENT, Paco, Manila, together
with his brother ROLANDO. The relatives of the accused together
with his aunt attempted to visit them but they were allegedly

refused

admittance

to

their

detention

cell.

ROLANDO VALENCIA was released on March 22, 1989 while

ALEJANDRO VALENCIA who denied any participation in the
shooting, was turned over to the Investigator of the HOMICIDE
SECTION, Pat. Renato Marquez, at about 11:30 p.m. of the same
date. ROLANDO VALENCIA when released had a swollen face but
was allegedly advised not to tell any one about the maltreatment
that he and his brother, Alejandro had received if he wanted to see
his brother alive. So he did nothing for fear that ALEJANDRO
VALENCIA might be salvaged. On one occasion, when he was
visited by his parents, Accused-appellant told them of his request
to be taken to a doctor for treatment, but the police refused. 4
On March 30, 1989, two Informations for Homicide and Frustrated
Homicide, were filed against the accused-appellant, to wit:
"1. Criminal Case No. 89-72061 for the crime of HOMICIDE (with
the use of unlicensed firearm), alleged to have been committed as
follows:
That on or about March 19, 1989, in the City of Manila, Philippines,
the said accused, with the use of an unlicensed firearm (sumpak),
did then and there willfully, unlawfully and feloniously with intent
to kill, attack, assault and use personal violence upon one
ANNABELLE JIMENEZ Y BARREDO by then and there shooting the
latter with an unlicensed firearm (sumpak) hitting her at the back
and at the right buttock, thereby inflicting upon said Annabelle
Jimenez y Barredo gunshot wounds which were the direct and
immediate
cause
of
her
death.
Contrary to law.
and in
2. Criminal Case No. 89-72062 for the crime of FRUSTRATED
HOMICIDE, alleged to have been committed as follows:chanrob1es
virtual
1aw
library
That on or about March 19, 1989, in the City of Manila, Philippines,
the said accused, with the use of an unlicensed firearm (sumpak),
did then and there willfully, unlawfully and feloniously, with intent
to kill, attack, assault and use personal violence upon one SAMUEL
JIMENEZ, JR. Y BARREDO, by then and there shooting the latter with
an unlicensed firearm (sumpak) hitting him at the right forearm,

thereby inflicting upon him mortal wound which is necessarily fatal,

thus performing all the acts of execution which should have
produced the crime of homicide, as a consequence, but
nevertheless, did not produce it by reason of causes independent
of his will, that is, by the timely and able medical assistance
rendered to said Samuel Jimenez, Jr. y Barredo which saved his life.

shanty, is rebutted by defense Exhibit "2" 13 which is a photograph

of a plywood wall of Arlyn B. Jimenez shanty showing that the
pellets were fired through said plywood wall and not through the
door.
The alleged incredibility and flip-flopping testimonies do not exist
and
could
be
explained.

"Contrary to law."
When arraigned, the accused-appellant pleaded "Not Guilty." Trial
then proceeded resulting in accused-appellants conviction as
above stated.
On appeal, Accused-appellant raised as errors of the trial court:
1. In giving credence to the uncorroborated testimony of Arlyn
Barredo Jimenez, mother of the victims, Annabelle Jimenez and
Samuel Jimenez, Jr.;
2. In finding that the prosecution was able to prove the guilt of the
defendant-appellant beyond reasonable doubt in spite of the fact
that there was allegedly no preliminary investigation, and that no
sufficient
evidence
exists
proving
his
guilt;
and

In this connection, it is worthwhile mentioning the reason why at

first no eyewitnesses volunteered to testify in this case and for
which the court may take judicial notice of. The incident occurred in
Anak Bayan, Paco, Manila, a place notorious for its high incidence
of criminality even before World War II. With the increase in its
population of urban poor after the war and the formation of
teenage gangs, one resided in Anak Bayan either out of sheer
desperation or because his forefathers lived there and out of
necessity one could not help but lived with them and take his
chances with the environment. One always lived in constant fear of
being killed or maimed or forced to take drugs from the pushers
that hang around the place. Ramon Bacnotan, (the person who
found the sumpak and gave it to the police) in his statement to the
police, 14 tells Us why this is so:
"09 T Bakit mo naman isinurender itong sumpak sa mga pulis?

3. In convicting the defendant-appellant, considering the fact that

there exists no evidence that he was the holder of the unlicensed
firearm, and that the prosecution had earlier moved for the
dismissal of the case of illegal possession of firearm, Criminal Case
No. 89-72657. 6
I
As to the incredibility of Arlyn B. Jimenez testimony due to her flipflopping allegations, where in one instance, for example, she could
not tell Pat. Marquez the identity of the suspect when queried at
the Philippine General Hospital where her two children were taken
for medical attention right after they were shot, 7 but at the
witness stand she was able to readily identify the accusedappellant as the suspect claiming that they are neighbors; 8 (2)
that while Arlyn B. Jimenez claimed there was no "rumble"
preceding the shooting, 9 Pat. Marquez on the other hand testified
that a "rumble" did occur in the area before the shooting incident
10 which was in fact bannered in the front page of the March 20,
1989 edition of Peoples Journal; 11 and (3) Arlyns claim that the
pellets that hit her children were fired through the door 12 of their

S Kasi ho ay nabalitaan ko kanina na may mga pulis na

nagtatanong at hinahanap daw iyong sumpak na ginamit sa
pagkakabaril ng mga bata dito sa F. Muoz, naalala ko na nuong
mangyari ang barilang iyon ay habang ako ay naglalakad duon sa
malapit sa pinangyarihan ay narinig ko ang mga bata na nag-uusap
na duon daw itinapon ni Ponga ang ginamit na sumpak, kaya
nuong malaman ko na hinahanap ng mga pulis ay pinuntahan ko at
nakita ko nga na nanduon pa rin.
10 T Bakit hindi mo itinuro kaagad sa pulis ang lugar nuong araw
na iyon?
S Una po ay takot ako na masangkot at takot din ako kay Ponga.
Ngayon po ay nakakulong na siya kaya po naglakas na akong
tumestigo.
x

x.

14 T Kilala mo ba itong si Ponga?

S Hindi po masyado, pero putok po ang pangalan niya duon sa

lugar namin at maraming takot sa kanya kung lasing siya sa
gamot." (Emphasis supplied.)
Arlyn B. Jimenez testified that as she and her son, Samuel were
about to eat, she saw "Ponga" holding a sumpak a few feet away
from her open door. 15 Seized with fear, she immediately closed
the door 16 because whenever she sees a sumpak she feels afraid.
17 Momentarily thereafter, a shot was fired through her door,
hitting her children. With her two children in serious condition Arlyn
rushed them to the Philippine General Hospital, and in her state of
hysteria and shock, Arlyn was in no position to tell the police
investigator who shot her children, 18 nor recall whether a rumble
preceded the shooting or not. All that she could tell the police at
that point in time was that the sumpak pellets passed through her
shanty door, which she had just closed. Arlyns testimony should
be considered in the light of the fact that there is no standard of
behavior when one is confronted with a shocking incident, 19
especially so when the person whose testimony is elicited is part of
that
shocking
incident.
Contrary to accused-appellants assertions, the photograph
presented in evidence indeed shows that the bullet holes were on
the door and not on the wall of the shanty. This was corroborated
by Pat. Cajiles who testified that the shanty door "happen to have
gunshot damages."
The inconsistencies in the testimonies of the prosecution witnesses
cited by accused-appellant have not been shown to be deliberately
made to distort the truth and cannot, therefore, be regarded as
dissolving and destroying the probative value of the witnesses
testimonies on the identity of the suspect, the presence of the
rumble and the entry point of the "sumpak" pellets. 21 Settled is
the rule that the findings of the trial court on the credibility of the
witnesses are accorded great respect and finality in the appellate
court where the same are supported by the evidence on record. 22
II
The accused-appellant decries the fact that he was denied the right
of preliminary investigation. This is not true.
A person who is lawfully arrested, without a warrant pursuant to
paragraph 1(b), Section 5, Rule 113, Rules of Court 23 should be

delivered to the nearest police station and proceeded against in

accordance with Rule 112, Section 7. 24 Under said Section 7, Rule
112, 25 the prosecuting officer can file the Information in court
without a preliminary investigation, which was done in the
accused-appellants case.
Since the records do not show whether the accused-appellant
asked for a preliminary investigation after the case had been filed
in court, as in fact, the accused-appellant signified his readiness to
be arraigned, 27 the Court can only conclude that he waived his
right to have a preliminary investigation, 28 when he did, in fact,
pleaded "Not Guilty" upon his arraignment.
Ponga was convicted because all the circumstances pointed to no
other person but him Ponga as the sumpak-wielder. We quote
with approval the trial courts analysis on the conflux of
circumstantial evidence, as follows:
"The evidence of the prosecution reveals that it has no eyewitness
to the actual commission of the two offenses herein charged or
that it did not present any. Stated otherwise, its case is anchored
on circumstantial evidence and such is mostly supplied by the
victims mother, Arlyn Barredo-Jimenez. These circumstances are:
(1) While she, her mother and her son, Samuel Jimenez, Jr., were
taking supper in their shanty at around 8:30-9:00 oclock in the
evening of March 19, 1989, she saw Ponga, who is accused
Alejandro Valencia, standing a few meters outside holding a
homemade shotgun, locally known as sumpak. Afraid of any
untoward incident or of their involvement thereof, she immediately
closed
the
door
of
their
house.
(2) Not long after she closed the door of their house, there was a
gun blast coming from in front of their hovel, from the direction
where she saw Ponga standing. That shot injured her two children,
Annabelle and Samuel, Jr., causing the death of the former four
days later and injuring the latters forearm causing his
hospitalization for one week and another 2 weeks for complete
recovery.
(3) Upon seeing her two children wounded, she opened the door of
their dwelling to ask for help. At that precise moment, she saw
accused Alejandro Valencia running away and carrying the same
homemade shotgun (sumpak).

(4) The several holes (6 of them) of the door (made of plywood) to

their house unmistakably show that they were produced by pellets
of a shotgun bullet and one bigger hole shows that it was made by
a shotgun bullet because of the size of its circumference. In fact,
Pat. Roberto Cajiles recovered 3 pellets at the door.
(5) A homemade shotgun (sumpak) - now Exhibit "A") was
retrieved from a canal/ditch very near the hut of Arlyn BarredoJimenez by Ramon Bacnotan and surrendered to Pat. Edgardo
Paterno on March 30, 1989.
(6) That there was a rumble involving 2 rival gangs immediately
preceding the shooting incident that night of March 19, 1989
participated in by accused Alejandro Valencia is admitted by the
defense in its offer of Peoples Tonight issue of March 20, 1989
(Exhibit "1").

outside, standing a few meters away, holding a homemade

shotgun (sumpak). Lest she may get embroiled in any untoward
incident, she hurriedly went to close the door. She recognized that
person standing outside due to the light in front of their house and
the fluorescent lamp at the back of their neighbors house, thus
illuminating the place where the person was standing. Soon after
she closed the door, there was a gun blast and then she heard the
moanings and cries of pain of her two children, Annabelle and
Samuel, Jr. When she looked at them, she saw them bloodied and
writhing in pain. Immediately, she opened the door of their hovel to
ask for help. Once she opened the door, she saw the accused,
Alejandro Valencia, running away and carrying with his right hand
the
homemade
shotgun.

Are these circumstances sufficient to support the conviction of the

accused, affording as it does the basis for a reasonable inference of
the existence of the fact thereby sought to be proved?"
x
x
x

In addition, the telltale bullet marks of the door proved without

doubt that they were produced by a shotgun bullet and pellets
thereof. Pat. Renato Marquez testified that he saw those bullet and
pellet holes at the door when he went to investigate the place after
he received a report of the incident from Pat. Ramon Cajiles of the
Ong Detachment. From his investigation, only one suspect has
been consistently mentioned and that is accused Alejandro
Valencia who is identified by those he investigated as Ponga.

"In answer thereto, the Court finds the above-enumerated

circumstances to be sufficient to prove the guilt of the accused
beyond reasonable doubt. For there is no showing whatsoever by
the defense that Arlyn Barredo-Jimenez, victims mother, was
motivated by ill-will or evil design to testify against the accused. In
the absence, therefore, of any such showing tending to question
her motive and integrity, her testimony should be given full credit
in the light of the time-honored pronouncement that the absence
of improper or evil motive for a State witness to make false
imputations against the accused strengthens his credibility (People
v. Rose, Sr., Et Al., L-80457, September 29, 1988, 166 SCRA 110;
People v. Cabatit, L-62030-31, October 4, 1985, 139 SCRA 94;
People v. Beltran, Et Al., L-37168-69. September 13, 1985, 138
SCRA 521; People v. Sogales, L-31938, February 20, 1984, 127
SCRA 520; People v. Vengco, Et Al., L-31657 & 32264, January 31,
1984, 127 SCRA 242; People v. Aposago, Et Al., L-32477, October
30, 1981, 108 SCRA 574, and other numerous cases).

All these circumstances are found by the Court to be consistent

with each other, consistent with the hypothesis that the accused,
Alejandro Valencia, is guilty thereof, and at the same time
inconsistent with any other hypothesis except that of his guilt.
They constitute an unbroken chain which leads to a fair and
reasonable conclusion pointing to the defendant, Alejandro
Valencia, to the exclusion of all others, as the author or the two
crimes, a chain of natural and rational circumstances corroborating
each other and they certainly can not be overcome by the very
inconcrete and doubtful evidence submitted by him (Erlanger and
Galinger, Inc. v. Exconde, L-4792 and L-4795, September 20, 1953)
as will be pointed out later. Then, too, the facts that no less than
the accuseds brother, Ramon Valencia, brought the policeman to
their aunts house to arrest the herein accused is another
circumstance to show that, indeed, herein accused is guilty
thereof."
III

Thus, Arlyn Barredo-Jimenez testified that while they were taking

their supper that night of March 19, 1989, she happened to glance
through the open door of their hut and she saw the accused,

The fact that the case of illegal possession of the sumpak, Criminal
Case No. 89-72657 was dismissed upon motion of the prosecution
is irrelevant and immaterial as what is material is that Arlyn

Jimenez saw Ponga holding the sumpak shotgun before the

shooting 30 and saw him again holding the said weapon while
running away after the shooting. 31 Said criminal case was
dismissed because the trial court applied Section 1, P.D. No. 1866
to accused-appellants case. Thus, the trial court correctly ruled
that:
"Finally, the accused did not adduce any evidence of whatever
nature to show that he has the authorization or permit to possess
the homemade shotgun (Exhibit "A"). As a matter of fact, there is
no need to discuss further this matter because such kind of firearm
can not be licensed/registered with the Firearms and Explosives
Unit, PC, as it is a homemade shotgun. The Court can take judicial
notice that said firearm can fire and cause injury even death, to a
person.
Section 1 of Presidential Decree No. 1866, as amended, provides
that if homicide or murder is committed with the use of an
unlicensed firearms, the penalty of death shall be imposed. Since
death occurred as a consequence of the use of an unlicensed
firearm (homemade shotgun) in Criminal Case No. 89-72061, the
penalty so provided therein should be imposed."
IV

course We condemn, the person allegedly tortured or maltreated

was the appellants brother, Rolando, not the appellant himself,
who, incidentally was released. Rolando Valencia, if he was indeed
tortured, has remedies under the law for the vindication of his
rights.
As to the appellants contention in his Brief 32 that he was likewise
tortured into confessing that he fired the "sumpak", a careful
review of the records and exhibits does not reveal that the
prosecution presented his confession, if any, during the trial. His
conviction was not based on his alleged confession but on the
strength of the testimony of the victims mother. Furthermore,
Accused-appellants claim of police brutality cannot be given
weight as he never formally complained to the police or to the
fiscal nor presented any medical certificate to prove the same.
WHEREFORE, premises considered, the decision of the trial court is
AFFIRMED with the MODIFICATION that in Criminal Case No. 8972061 the death indemnity is increased to FIFTY THOUSAND
(P50,000.00) PESOS in consonance with existing jurisprudence.
Costs against the Accused-Appellant.
SO ORDERED.

Assuming that maltreatment or torture was employed by the police

in the course of their investigation of the case at bar, which of