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THIRD DIVISION

[G.R. No. 170723. March 3, 2008.]

GLORIA PILAR S. AGUIRRE, petitioner, vs. SECRETARY OF THE DEPARTMENT OF JUSTICE, MICHELINA S. AGUIRRE-OLONDRIZ, PEDRO B. AGUIRRE, DR. JUVIDO AGATEP and DR. MARISSA B. PASCUAL, respondents.

JUVIDO AGATEP and DR. MARISSA B. PASCUAL , respondents . CHICO-NAZARIO , J p : D

CHICO-NAZARIO, J p:

D E C I S I O N

In this petition for review on certiorari 1(1) under Rule 45 of the Rules of Court, as amended, petitioner Gloria Pilar S. Aguirre (Gloria Aguirre) seeks the reversal of the 21 July 2005 Decision 2(2) and 5 December 2005 Resolution, 3(3) both of the Court of Appeals in CA-G.R. SP No. 88370, entitled "Gloria Pilar S. Aguirre v. Secretary of the Department of Justice, Michelina S. Aguirre-Olondriz, Dr. Juvido Agatep, Dra. Marissa B. Pascual, Pedro B. Aguirre and John and Jane Does".

The Court of Appeals found no grave abuse of discretion on the part of the Secretary of the Department of Justice (DOJ) when the latter issued the twin resolutions dated 11 February 2004 4(4) and 12 November 2004, 5(5) respectively, which in turn affirmed the 8 January 2003 Resolution 6(6) of the Office of the City Prosecutor (OCP) of Quezon City.

The Assistant City Prosecutor for the OCP of Quezon City recommended the dismissal of the criminal complaint, docketed as I.S. No. 02-12466, for violation of Articles 172 (Falsification by Private Individuals and Use of Falsified Documents) and 262 (Mutilation), both of the Revised Penal Code, in relation to Republic Act No. 7610, otherwise known as "Child Abuse, Exploitation and Discrimination Act", for insufficiency of evidence.

The case stemmed from a complaint filed by petitioner Gloria Aguirre against respondents Pedro B. Aguirre (Pedro Aguirre), Michelina S.

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Aguirre-Olondriz (Olondriz), Dr. Juvido Agatep (Dr. Agatep), Dr. Marissa B. Pascual (Dr. Pascual) and several John/Jane Does for falsification, mutilation and child abuse.

The antecedents of the present petition are:

Laureano "Larry" Aguirre 7(7) used to be a charge of the Heart of Mary Villa, a child caring agency run by the Good Shepherd Sisters and licensed by the Department of Social Work and Development (DSWD). Sometime in 1978, respondent Pedro Aguirre; the latter's spouse, Lourdes S. Aguirre (Lourdes Aguirre); and their four daughters, who included petitioner Gloria Aguirre and respondent Olondriz, came to know Larry, who was then just over a year old. The Aguirres would have Larry spend a few days at their home and then return him to the orphanage thereafter. In June 1980, Larry, then two years and nine months of age, formally became the ward of respondent Pedro Aguirre and his spouse Lourdes Aguirre by virtue of an Affidavit of Consent to Legal Guardianship executed in their favor by Sister Mary Concepta Bellosillo, Superior of the Heart of Mary Villa. On 19 June 1986, the Aguirre spouses' guardianship of Larry was legalized when the Regional Trial Court (RTC), Branch 3 of Balanga, Bataan, duly appointed them as joint co-guardians over the person and property of Larry.

As Larry was growing up, the Aguirre spouses and their children noticed that his developmental milestones were remarkably delayed. His cognitive and

physical growth did not appear normal in that "at age 3 to 4 years, Larry could

.;" 8(8) he did not utter his first word until he

was three years of age; did not speak in sentences until his sixth year; and only learned to stand up and walk after he turned five years old. At age six, the Aguirre spouses first enrolled Larry at the Colegio de San Agustin, Dasmariñas Village, but the child experienced significant learning difficulties there. In 1989, at age eleven, Larry was taken to specialists for neurological and psychological evaluations. The psychological evaluation 9(9) done on Larry revealed the latter to be suffering from a mild mental deficiency. 10(10) Consequent thereto, the Aguirre spouses transferred Larry to St. John Ma. Vianney, an educational institution for special children.

only crawl on his tummy like a frog

In November of 2001, respondent Dr. Agatep, a urologist/surgeon, was approached concerning the intention to have Larry, then 24 years of age, vasectomized. Prior to performing the procedure on the intended patient, respondent Dr. Agatep required that Larry be evaluated by a psychiatrist in order to confirm and validate whether or not the former could validly give his consent to the medical procedure on account of his mental deficiency.

In view of the required psychiatric clearance, Larry was brought to respondent Dr. Pascual, a psychiatrist, for evaluation. In a psychiatric report dated

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21 January 2002, respondent Dr. Pascual made the following recommendation:

[T]he responsibility of decision making may be given to his parent or guardian. 11(11)

the full text of which reads —

PSYCHIATRY REPORT 21 January 2002

GENERAL DATA

LAUREANO AGUIRRE, 24 years old, male, high school graduate of St. John [Marie Vianney], was referred for psychiatric evaluation to determine competency to give consent for vasectomy.

CLINICAL SUMMARY

Larry was adopted at age 3 from an orphanage and prenatal history is not known to the adoptive family except that abortion was attempted. Developmental milestones were noted to be delayed. He started to walk and speak in single word at around age 5. He was enrolled in Colegio de San Agustin at age 6 where he showed significant learning difficulties that he had to repeat 1st and 4th grades. A consult was done in 1989 when he was 11 years old. Neurological findings and EEG results were not normal and he was given Tecretol and Encephabol by his neurologist. Psychological evaluation revealed mild to moderate mental retardation, special education training was advised and thus, he was transferred to St. John Marie Vianney. He finished his elementary and secondary education in the said school. He was later enrolled in a vocational course at Don Bosco which he was unable to continue. There has been no reported behavioral problems in school and he gets along relatively well with his teachers and some of his classmates.

Larry grew up with a very supportive adoptive family. He is the youngest in the family of four sisters. Currently, his adoptive parents are already old and have medical problem and thus, they could no longer monitor and take care of him like before. His adoptive mother has Bipolar Mood Disorder and used to physically maltreat him. A year ago, he had an episode of dizziness, vomiting and headaches after he was hit by his adoptive mother. Consult was done in Makati Medical Center and several tests were done, results of which were consistent with his developmental problem. There was no evidence of acute insults. The family subsequently decided that he should stay with one of his sisters to avoid similar incident and the possibility that he would retaliate although he has never hurt anybody. There has been no episode of violent outburst or aggressive behavior. He would often keep to himself when sad, angry or frustrated.

He is currently employed in the company of his sister and given

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assignment to do some photocopying, usually in the mornings. He enjoys playing billiards and basketball with his nephews and, he spends most of his leisure time watching TV and listening to music. He could perform activities of daily living without assistance except that he still needs supervision in taking a bath. He cannot prepare his own meal and never allowed to go out and run errands alone. He does not have friends and it is only his adoptive family whom he has significant relationships. He claims that he once had a girlfriend when he was in high school who was more like a best friend to him. He never had sexual relations. He has learned to smoke and drink alcohol few years ago through his cousins and the drivers. There is no history of abuse of alcohol or any prohibited substances.

MEDICAL STATUS EXAMINATION

The applicant was appropriately dressed. He was cooperative and he had intermittent eye contact. Speech was spontaneous, soft, and relevant. He responded to questions in single words or simple sentences. He was anxious specially at the start of the interview, with full affect appropriate to mood and thought content. There was no apparent thought or perceptual disturbance. No suicidal/homicidal thoughts elicited. He was oriented to time, place and person. He has intact remote and recent memory. He could do simple calculation. He could write his name and read simple words. His human figure was comparable to a 7-8 year old. He demonstrated fair judgment and poor insight. He had fair impulse control.

PSYCHOLOGICAL TESTS

Psychological tests done on March 6, 1990 (Dr. Lourdes Ledesma) and on August 4, 2000 (Dr. Ma. Teresa Gustilo-Villaosor) consistently revealed mild to moderate mental deficiency.

SIGNIFICANT LABORATORY EXAMS RESULTS

CT scan done 09 January 2001 showed nonspecific right deep parietal subcortical malacia. No localized mass lesion in the brain.

volume

loss, encephalomalacia, gliosis and ulegyria consistent with sequela of postnatal or neonatal infarcts. Ex-vacuo dilatation of the atria of lateral ventricles associated thinned posterior half of the corpus callosum.

MRI done on 10 January 2001 showed bilateral parietal

ASSESSMENT AND RECOMMENDATION

Axis I

None

Axis II

Mental Retardation, mild to moderate type

Axis III

None

Axis IV

None at present

Axis V

Current GAF = 50-60

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Larry's mental deficiency could be associated with possible perinatal insults, which is consistent with the neuroimaging findings. Mental retardation associated with neurological problems usually has poorer prognosis. Larry is very much dependent on his family for his needs, adaptive functioning, direction and in making major life decisions. At his capacity, he may never understand the nature, the foreseeable risks and benefits, and consequences of the procedure (vasectomy) that his family wants for his protection. Thus, the responsibility of decision making may be given to his parent or guardian.

Marissa B. Pascual, M.D. Psychiatrist 12(12)

Considering the above recommendation, respondent Pedro Aguirre's written consent was deemed sufficient in order to proceed with the conduct of the vasectomy. Hence, on 31 January 2002, respondent Dr. Agatep performed a bilateral vasectomy on Larry.

On 11 June 2002, petitioner Gloria Aguirre, respondent Pedro Aguirre's eldest child, instituted a criminal complaint for the violation of the Revised Penal Code, particularly Articles 172 and 262, both in relation to Republic Act No. 7610 against respondents Pedro Aguirre, Olondriz, Dr. Agatep, Dr. Pascual and several John/Jane Does before the Office of the City Prosecutor of Quezon City.

The Complaint Affidavit, 13(13) docketed as I.S. No. 02-12466, contained the following allegations:

2. Dr. Agatep and Dra. Pascual were (sic) medical

practitioners specializing in urology and psychiatry respectively; while

respondent Pedro B. Aguirre is my father; Michelina S. Aguirre-Olondriz is

is my common law

brother. JOHN and JANE DOES were the persons who, acting upon the apparent instructions of respondents Michelina Aguirre-Olondriz and/or Pedro B. Aguirre, actually scouted, prospected, facilitated, solicited and/or procured the medical services of respondents Dra. Pascual and Dr. Agatep vis-à-vis the intended mutilation via bilateral vasectomy of my common law brother Larry Aguirre subject hereof.

my sister, and the victim Laureano "Larry" Aguirre

xxx

xxx

xxx

4. Sometime in March 2002, however, the Heart of Mary Villa of

the Good Shepherd Sisters was furnished a copy of respondent Dra. Pascual's Psychiatry Report dated 21 January 2004 by the "DSWD", in which my common law brother "Larry" was falsely and maliciously declared

incompetent and incapable of purportedly giving his own consent to the MUTILATION VIA BILATERAL VASECTOMY intended to be

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performed on him by all the respondents.

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xxx

6. Based on the foregoing charade and false pretenses invariably

committed by all of the respondents in conspiracy with each other, on 31 January 2002, my common law brother Larry Aguirre, although of legal age but conspiratorially caused to be declared by respondents to be "mentally deficient" and incompetent to give consent to his BILATERAL VASECTOMY, was then intentionally, unlawfully, maliciously, feloniously and/or criminally placed thereafter under surgery for MUTILATION VIA

., EVEN WITHOUT ANY

"BILATERAL VASECTOMY"

AUTHORIZATION ORDER from the GUARDIANSHIP COURT, nor

personal consent of Larry Aguirre himself.

In addition to the above, the complaint included therein an allegation that

v. without a PRIOR medical examination, professional interview of nor verification and consultation with my mother, Lourdes Sabino-Aguirre, respondent Dra. Pascual baselessly, fraudulently and with obvious intent to defame and malign her reputation and honor, and worse, that of our Sabido family, falsely concluded and diagnosed, via her falsified Psychiatry Report, that my mother Lourdes Sabido-Aguirre purportedly suffers from "BIPOLAR MOOD DISORDER"

To answer petitioner Gloria Aguirre's accusations against them, respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual submitted their respective Counter-Affidavits.

In her defense, 14(14) respondent Olondriz denied that she "prospected, scouted, facilitated, solicited and/or procured any false statement, mutilated or abused" her common-law brother, Larry Aguirre. Further, she countered that:

3.

. vasectomy procedure, there is nothing in the Complaint which explains how the vasectomy amounts to a mutilation.

and admit that Larry went through a

.

While I am aware

.

 

xxx

xxx

xxx

5.

In any case, as I did not perform the vasectomy, I can state with complete confidence that I did not participate in any way in the alleged mutilation.

6.

Neither did I procure or solicit the services of the physician who

performed the vasectomy, Dr. Juvido Agatep

It was my father,

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Pedro Aguirre, Larry's guardian, who obtained his services. I merely acted upon his instructions and accompanied my brother to the physician, respondents Dra. Marissa B. Pascual

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xxx

10.

Neither does the Complaint explain in what manner the Complainant is authorized or has any standing to declare that Larry's consent was not obtained. Complainant is not the guardian or relative of Larry. While she argues that Larry's consent should have been obtained the Complaint does not dispute the psychiatrist's findings about Larry's inability to give consent.

xxx

xxx

xxx

13.

the Complaint does not even state what alleged participation was falsified or the portion of the psychiatric report that allegedly states that someone participated when in fact that person did not so participate.

xxx

xxx

xxx

15.

Again, I had no participation in the preparation of the report of Dr. Pascual

xxx

xxx

xxx

17.

the Complaint does not dispute that he (Larry) is mentally deficient or incompetent to give consent.

xxx

xxx

xxx

19.

I verified that the effect of a vasectomy operation was explained to him (Larry) by both respondent doctors.

20.

I accompanied Larry and obeyed my father on the belief that my father continues to be the legal guardian of Larry. I know of no one

else who asserts to be his legal guardian

15(15)

Alleging the same statement of facts and defenses, respondent Pedro Aguirre argues against his complicity in the crime of mutilation as charged and asserts that:

5.

In any case, as I did not perform the vasectomy, I can state with complete confidence that I did not participate in any way in the alleged mutilation. 16(16)

Nevertheless, he maintains that the vasectomy performed on Larry does not in any

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way amount to mutilation, as the latter's reproductive organ is still completely intact. 17(17) In any case, respondent Pedro Aguirre explains that the procedure performed is reversible through another procedure called Vasovasostomy, to wit:

8. I understand that vasectomy is reversible through a procedure called Vasovasostomy. I can also state with confidence that the procedure enables men who have undergone a vasectomy to sire a child. Hence, no permanent damage was caused by the procedure.

Respondent Pedro Aguirre challenges the charge of falsification in the complaint, to wit:

14.

I did not make it appear that any person participated in any act or proceeding when that person did not in fact participate

xxx

xxx

xxx

16.

I had no participation in the preparation of the report of Dra. Pascual. She arrived at her report independently, using her own professional judgment

xxx

xxx

xxx

31.

What I cannot understand about Petita's Complaint is how Larry is argued to be legally a child under the definition of one law but nonetheless and simultaneously argued to be capacitated to give his consent as fully as an adult. 18(18)

Respondent Pedro Aguirre further clarifies that co-guardianship over Larry had been granted to himself and his wife, Lourdes Aguirre, way back on 19 June 1986 by the Regional Trial Court, Branch 3 of Balanga, Bataan. Respondent Pedro Aguirre contends that being one of the legal guardians, consequently, parental authority over Larry is vested in him. But assuming for the sake of argument that Larry does have the capacity to make the decision concerning his vasectomy, respondent Pedro Aguirre argues that petitioner Gloria Aguirre has no legal personality to institute the subject criminal complaint, for only Larry would have the right to do so.

Just as the two preceding respondents did, respondent Dr. Agatep also disputed the allegations of facts stated in the Complaint. Adopting the allegations of his co-respondents insofar as they were material to the charges against him, he vehemently denied failing to inform Larry of the intended procedure. In his counter-statement of facts he averred that:

wherein I

painstakingly explained what vasectomy is and the consequences thereof;

(b) I scheduled Larry for consultative interview

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I advised his relatives and his

nurse who accompanied him to have Larry examined by a psychiatrist who

can really give his

consent, thus I required them to secure first a psychiatric evaluation and clearance prior to the contemplated procedure.

could properly determine whether or not Larry

but finding signs of mental deficiency,

(c) On January 21, 2002, I was furnished a copy of a psychiatric

In her said report, Dr. Pascual

found Larry to suffer from "mental retardation, mild to moderate type" and

further stated that "at his capacity, he may never understand the nature, the foreseeable risks and benefits and consequences of the procedure

(vasectomy)

his parent or guardian

report prepared by Dr. Marissa Pascual

., thus the responsibility of decision making may be given to

."

(d) I was likewise furnished a copy of an affidavit executed by

Pedro

Pedro Aguirre stating that he was the legal guardian of Larry

Aguirre gave his consent to vasectomize Larry

(e) Only

then,

specifically

January

performed with utmost care and diligence. 19(19)

31,

2002,

vasectomy

was

In defense against the charge of falsification and mutilation, respondent Dr. Agatep argued that subject complaint should be dismissed for the following reasons:

1. The complainant has no legal personality to file this case. As

mentioned above, she is only a common law sister of Larry who has a legal guardian in the person of Pedro Aguirre, one of the herein respondents

2. [t]he allegations in the complaint clearly centers on the

condition of complainant's mother, Lourdes Aguirre, her reputation, and miserably fails to implicate the degree of participation of herein respondent. .

.

.

xxx

xxx

xxx

I strongly aver that this felony does not apply

to me since it clearly gives reference to co-respondent, Dr. Marissa Pascual's Psychiatry Report, dated January 21, 2002, in relation with her field of

profession, an expert opinion. I do not have any participation in the

preparation of said report, proceedings to the damage to document

neither did I utilized (sic) the same in any I also deny using a falsified

(b)

Vasectomy does not in anyway equate to

castration and what is touched in vasectomy is not considered an organ in

the context of law and medicine, it is quite remote from the penis

(c)

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the complaint-affidavit is very vague in

specifying the applicability of said law. It merely avers that Laureano

"Larry" Aguirre is a child, and alleges his father, Pedro Aguirre, has parental

authority over him

(d) Child

20(20)

Similarly, respondent Dr. Pascual denied the criminal charges of falsification and mutilation imputed to her. She stands by the contents of the assailed Psychiatric Report, justifying it thus:

My opinion of Larry Aguirre's mental status was based on my own personal observations, his responses during my interview of him, the results of the two (2) psychological tests conducted by clinical psychologists, the results of laboratory tests, including a CT Scan and MRI, and his personal and family history which I obtained from his sister, Michelina Aguirre-Olondriz

5. the reference in my report concerning Mrs. Lourdes

Aguirre is not a statement of my opinion of Mrs. Aguirre's mental status, . Rather, it is part of the patient's personal and family history as conveyed to me by Mrs. Aguirre-Olondriz.

6. An expression of my opinion, especially of an expert

opinion, cannot give rise to a charge for falsification. A contrary opinion by another expert only means that the experts differ, and does not necessarily reflect on the truth or falsity of either opinion

7. I never stated that I examined Mrs. Aguirre, because I never

did

8. I had no participation in the surgery performed on Larry

Aguirre except to render an opinion on his capacity to give informed consent to the vasectomy

9. Without admitting the merits of the complaint, I submit that

complainants are not the proper persons to subscribe to the same as they are

not the offended party, peace officer or other public officer charged with the

enforcement of the law violated

21(21)

The Assistant City Prosecutor held that the circumstances attendant to the case did not amount to the crime of falsification. He held that —

[T]he claim of the complainant that the Psychiatric Report was falsified, because consent was not given by Larry Aguirre to the vasectomy and/or he was not consulted on said operation does not constitute falsification. It would have been different if it was stated in the report that consent was obtained from Larry Aguirre or that it was written therein that he was consulted on the vasectomy, because that would mean that it was

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made to appear in the report that Larry Aguirre participated in the act or proceeding by giving his consent or was consulted on the matter when in truth and in fact, he did not participate. Or if not, the entry would have been an untruthful statement. But that is not the case. Precisely (sic) the report was made to determine whether Larry Aguirre could give his consent to his intended vasectomy. Be that as it may, the matter of Larry's consent having obtained or not may nor be an issue after all, because complainant's (sic) herself alleged that Larry's mental condition is that of a child, who can not give consent. Based on the foregoing consideration, no falsification can be established under the circumstances. 22(22)

Even the statement in the Psychiatric Report of respondent Dr. Pascual that Lourdes Aguirre had Bipolar Mood Disorder cannot be considered falsification since —

The report did not state that Lourdes Aguirre was in fact personally interviewed by respondent Dr. Pascual and that the latter concluded that Lourdes Aguirre has Bipolar Mood Disorder. The report merely quoted other sources of information with respect to the condition of Lourdes Aguirre, in the same manner that the fact that Lourdes Aguirre was physically abusing Larry Aguirre was also not of Dra. Pascual personal knowledge. But the fact that Dra. Pascual cited finding, which is not of her own personal knowledge in her report does not mean that she committed falsification in the process. Her sources may be wrong and may affect the veracity of her report, but for as long as she has not alleged therein that she personally diagnosed Lourdes Aguirre, which allegation would not then be true, she cannot be charged of falsification. Therefore, it goes without saying that if the author of the report is not guilty, then with more reason the other respondents are not liable. 23(23)

Respecting the charge of mutilation, the Assistant City Prosecutor also held that the facts alleged did not amount to the crime of mutilation as defined and penalized under Article 262 of the Revised Penal Code, i.e., "[t]he vasectomy operation did not in any way deprived (sic) Larry of his reproductive organ, which is still very much part of his physical self." He ratiocinated that:

While the operation renders him the inability (sic) to procreate, the operation is reversible and therefore, cannot be the permanent damage contemplated under Article 262 of the Revised Penal Code. 24(24)

The Assistant City Prosecutor, 25(25) in a Resolution 26(26) dated 8 January 2003, found no probable cause to hold respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual liable for the complaint of falsification and mutilation, more specifically, the violation of Articles 172 and 262 of the Revised Penal Code, in relation to Republic Act No. 7610. Accordingly, the Assistant City Prosecutor recommended the dismissal of petitioner Gloria Aguirre's complaint for

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insufficiency of evidence. The dispositive portion of the resolution reads:

WHEREFORE, it is recommended that the above-entitled case be dismissed for insufficiency of evidence. 27(27)

On 18 February 2003, petitioner Gloria Aguirre appealed the foregoing resolution to the Secretary of the DOJ by means of a Petition for Review. 28(28)

In a Resolution dated 11 February 2004, Chief State Prosecutor Jovencito R. Zuño, for the Secretary of the DOJ, dismissed the petition. In resolving said appeal, the Chief State Prosecutor held that:

Under Section 12, in relation to Section 7, of Department Circular No. 70 dated July 3, 2000, the Secretary of Justice may, motu proprio, dismiss outright the petition if there is no showing of any reversible error in the questioned resolution or finds the same to be patently without merit.

We carefully examined the petition and its attachments and found no error that would justify a reversal of the assailed resolution which is in accord with the law and evidenced (sic) on the matter. 29(29)

Petitioner Gloria Aguirre's Motion for Reconsideration was likewise denied with finality by the DOJ in another Resolution dated 12 November 2004.

Resolute in her belief, petitioner Gloria Aguirre went to the Court of Appeals by means of a Petition for Certiorari, Prohibition and Mandamus under Rule 65 of the Rules of Court, as amended.

On 21 July 2005, the Court of Appeals promulgated its Decision dismissing petitioner Gloria Aguirre's recourse for lack of merit.

The fallo of the assailed decision reads:

WHEREFORE, premises considered, the present petition is hereby DENIED DUE COURSE and accordingly DISMISSED for lack of merit. Consequently, the assailed Resolutions dated February 11, 2004 and November 12, 2004 of the Secretary of Justice in I.S. No. 02-12466 are hereby AFFIRMED. 30(30)

Petitioner Gloria Aguirre's motion for reconsideration proved futile as it was denied by the appellate court in a Resolution dated 5 December 2005.

Hence, the present petition filed under Rule 45 of the Rules of Court, as amended, premised on the following arguments:

I.

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THE COURT OF APPEALS COMMITTED SERIOUS, GRAVE AND REVERSIBLE ERRORS OF LAW WHEN IT CONCLUDED, BASED PURPORTEDLY ON THE INTERNET WHICH RUNS AMUCK

WITH OUR SYSTEM OF THE RULE OF LAW AND THE EVIDENCE ON RECORD, THAT BILATERAL VASECTOMY IS PURPORTEDLY 100% REVERSIBLE BY A FUTURE MEDICAL PROCEDURE HENCE

NOT AMOUNTING TO MUTILATION,

.; AND

xxx xxx

xxx

II.

WORSE, THE COURT OF APPEALS COMMITTED GRAVE, SERIOUS AND REVERSIBLE ERRORS OF LAW WHEN IT REFUSED TO DIRECT THE INDICTMENT OF THE PRIVATE RESPONDENTS

FOR MUTILATION AND FALSIFICATION DESPITE THE EXISTENCE

OF SUFFICIENT PROBABLE CAUSE THEREFOR

31(31)

The foregoing issues notwithstanding, the more proper issue for this Court's consideration is, given the facts of the case, whether or not the Court of Appeals erred in ruling that the DOJ did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when the latter affirmed the public prosecutor's finding of lack of probable cause for respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual to stand trial for the criminal complaints of falsification and mutilation in relation to Republic Act No. 7610.

In ruling that the DOJ did not commit grave abuse of discretion amounting to lack or excess of jurisdiction, the Court of Appeals explained that:

Evidently, the controversy lies in the permanency of sterilization as a result of a vasectomy operation, and the chances of restoring fertility with a reversal surgery

We sustain the DOJ in ruling that the bilateral vasectomy performed on Larry does not constitute mutilation even if intentionally and purposely done to prevent him from siring a child.

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xxx

Sterilization is to be distinguished from castration: in the latter act the reproductive capacity is permanently removed or damaged. 32(32)

It then concluded that:

The matter of legal liability, other than criminal, which private respondents may have incurred for the alleged absence of a valid consent to the vasectomy performed on Larry, is certainly beyond the province of this

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certiorari petition. Out task is confined to the issue of whether or not the Secretary of Justice and the Office of the City Prosecutor of Quezon City committed grave abuse of discretion in their determining the existence or absence of probable cause for filing criminal cases for falsification and mutilation under Articles 172 (2) and 262 of the Revised Penal Code. 33(33)

Petitioner Gloria Aguirre, however, contends that the Court of Appeals and the DOJ failed to appreciate several important facts: 1) that bilateral vasectomy conducted on petitioner's brother, Larry Aguirre, was admitted; 34(34) 2) that the procedure caused the perpetual destruction of Larry's reproductive organs of generation or conception; 35(35) 3) that the bilateral vasectomy was intentional and deliberate to deprive Larry forever of his reproductive organ and his capacity to procreate; and 4) that respondents, "in conspiracy with one another, made not only one but two (2) untruthful statements, and not mere inaccuracies when they made it appear in the psychiatry report" 36(36) that a) Larry's consent was obtained or at the very least that the latter was informed of the intended vasectomy; and b) that Lourdes Aguirre was likewise interviewed and evaluated. Paradoxically, however, petitioner Gloria Aguirre does not in any way state that she, instead of respondent Pedro Aguirre, has guardianship over the person of Larry. She only insists that respondents should have obtained Larry's consent prior to the conduct of the bilateral vasectomy.

In contrast, the Office of the Solicitor General (OSG), for public respondent DOJ, argues that "the conduct of preliminary investigation to determine the existence of probable cause for the purpose of filing (an) information is the function of the public prosecutor". 37(37) More importantly, "the element[s] of castration or mutilation of an organ necessary for generation is completely absent as he was not deprived of any organ necessary for reproduction, much less the destruction of such organ". 38(38)

Likewise, in support of the decision of the Court of Appeals, respondents Pedro Aguirre and Olondriz assert that, fundamentally, petitioner Gloria Aguirre has no standing to file the complaint, as she has not shown any injury to her person or asserted any relationship with Larry other than being his "common law

sister"; further, that she cannot prosecute the present case, as she has not been authorized by law to file said complaint, not being the offended party, a peace officer or a public officer charged with the enforcement of the law. Accordingly, respondents Pedro Aguirre and Olondriz posit that they, together with the other respondents Dr. Agatep and Dr. Pascual, may not be charged with, prosecuted for

and ultimately convicted of: 1) "mutilation

conducted on Larry does not involve castration or amputation of an organ

necessary for reproduction as the twin elements of the crime of mutilation

since the acts allegedly constituting

falsification involve matters of medical opinion and not matters of fact", 40(40) and

absent"; 39(39) and 2) "falsification

since the bilateral vasectomy

are

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that petitioner Gloria Aguirre failed to prove damage to herself or to any other person.

Respondent Dr. Agatep, in the same vein, stresses that vasectomy is not mutilation. He elucidates that vasectomy is merely the "excision of the vas deferens, the duct in testis which transport semen"; 41(41) that it is the penis and the testis that make up the male reproductive organ and not the vas deferens; and additionally argues that for the crime of mutilation to be accomplished, Article 262 of the Revised Penal Code necessitates that there be intentional total or partial deprivation of some essential organ for reproduction. Tubes, seminal ducts, vas deferens or prostatic urethra not being organs, respondent Dr. Agatep concludes, therefore, that vasectomy does not correspond to mutilation.

Anent the charge of falsification of a private document, respondent Dr. Agatep asseverates that he never took part in disclosing any information, data or facts as contained in the contentious Psychiatric Report.

For her part, respondent Dr. Pascual insists that the assailed Psychiatry Report was the result of her independent exercise of professional judgment. "Rightly or wrongly, (she) diagnosed Larry Aguirre to be incapable of giving consent, based on interviews made by the psychiatrist on Larry Aguirre and persons who interacted with him". 42(42) And supposing that said report is flawed, it is, at most, an erroneous medical diagnosis.

The petition has no merit.

Probable cause has been defined as the existence of such facts and circumstances as would excite 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. 43(43) The term does not mean "actual and positive cause" nor does it import absolute certainty. 44(44) It is merely based on opinion and reasonable belief; 45(45) that is, the belief that the act or omission complained of constitutes the offense charged. A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt. 46(46)

The executive department of the government is accountable for the prosecution of crimes, its principal obligation being the faithful execution of the laws of the land. A necessary component of the power to execute the laws is the right to prosecute their violators, 47(47) the responsibility of which is thrust upon the DOJ. Hence, the determination of whether or not probable cause exists to warrant the prosecution in court of an accused is consigned and entrusted to the DOJ. And by the nature of his office, a public prosecutor is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to prop up the averments thereof, or that the evidence at hand points to a

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different conclusion.

Put simply, public prosecutors under the DOJ have a wide range of discretion, the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by (public) prosecutors. 48(48) And this Court has consistently adhered to the policy of non-interference in the conduct of preliminary investigations, and to leave to the investigating prosecutor sufficient latitude of discretion in the determination of what constitutes sufficient evidence as will establish probable cause for the filing of an information against the supposed offender. 49(49)

But this is not to discount the possibility of the commission of abuses on the part of the prosecutor. It is entirely possible that the investigating prosecutor may erroneously exercise the discretion lodged in him by law. This, however, does not render his act amenable to correction and annulment by the extraordinary remedy of certiorari, absent any showing of grave abuse of discretion amounting to excess of jurisdiction. 50(50)

Prescinding from the above, the court's duty in an appropriate case, therefore, is confined to a determination of whether the assailed executive determination of probable cause was done without or in excess of jurisdiction resulting from a grave abuse of discretion. For courts of law to grant the extraordinary writ of certiorari, so as to justify the reversal of the finding of whether or not there exists probable cause to file an information, the one seeking the writ must be able to establish that the investigating prosecutor exercised his power in an arbitrary and despotic manner by reason of passion or personal hostility, and it must be patent and gross as would amount to an evasion or to a unilateral refusal to perform the duty enjoined or to act in contemplation of law. Grave abuse of discretion is not enough. 51(51) Excess of jurisdiction signifies that he had jurisdiction over the case but has transcended the same or acted without authority. 52(52)

Applying the foregoing disquisition to the present petition, the reasons of the Assistant City Prosecutor in dismissing the criminal complaints for falsification and mutilation, as affirmed by the DOJ, is determinative of whether or not he committed grave abuse of discretion amounting to lack or excess of jurisdiction.

In ruling the way he did — that no probable cause for falsification and mutilation exists — the Assistant City Prosecutor deliberated on the factual and legal milieu of the case. He found that there was no sufficient evidence to establish a prima facie case for the crimes complained of as defined and punished under Articles 172, paragraph 2, and 262 of the Revised Penal Code in relation to Republic Act No. 7610, respectively. Concerning the crime of falsification of a

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private document, the Assistant City Prosecutor reasoned that the circumstances attendant to the case did not amount to the crime complained of, that is, the lack of consent by Larry Aguirre before he was vasectomized; or the fact that the latter was not consulted. The lack of the two preceding attendant facts do not in any way amount to falsification, absent the contention that it was made to appear in the assailed report that said consent was obtained. That would have been an untruthful statement. Neither does the fact that the Psychiatric Report state that Lourdes Aguirre has Bipolar Mood Disorder by the same token amount to falsification because said report does not put forward that such finding arose after an examination of the concerned patient. Apropos the charge of mutilation, he reasoned that though the vasectomy rendered Larry unable to procreate, it was not the permanent damage contemplated under the pertinent provision of the penal code.

We agree. Grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the DOJ and the Assistant City Prosecutor was not shown in the present case.

In the present petition, respondents Pedro Aguirre, Olondriz, Dr. Agatep

and Dr. Pascual are charged with violating Articles 172 and 262 of the Revised Penal Code, in relation to Republic Act No. 7610. Article 172, paragraph 2 of the

Revised Penal Code, defines the crime of falsification of a private document, viz

Art. 172. Falsification by private individuals and use of falsified documents. — The penalty of prision correccional in its medium and maximum periods and a fine of not more than 5,000 pesos shall be imposed upon:

xxx

xxx

xxx

2. Any person who, to the damage of a third party, or with the

intent to cause such damage, shall in any private document commit any of the acts of falsification enumerated in the next preceding article.

Petitioner Gloria Aguirre charges respondents with falsification of a private document for conspiring with one another in keeping Larry "in the dark about the foregoing (vasectomy) as the same was concealed from him by the respondents .," 53(53) as well as for falsely concluding and diagnosing Lourdes Aguirre to be suffering from Bipolar Mood Disorder.

A scrutiny, however, of Article 171 of the Revised Penal Code which

defines the acts constitutive of falsification, that is —

Art. 171.

shall falsify a document by committing any of the

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following acts:

1. Counterfeiting

rubric;

or

imitating

any

handwriting,

signature,

or

2. Causing it to appear that persons have participated in any act or

proceeding when they did not in fact so participate;

3. Attributing to persons who have participated in an act or

proceeding statements other than those in fact made by them;

4. Making untruthful statements in a narration of facts;

5. Altering true dates;

6. Making any alteration or intercalation in a genuine document

which changes its meaning;

7. Issuing in an authenticated form a document purporting to be a

copy of an original document when no such original exists, or including in such copy a statement contrary to, or different from, that of the genuine

original; or

8. Intercalating any instrument or note relative to the issuance

thereof in a protocol, registry, or official book.

vis-à-vis the much criticized Psychiatric Report, shows that the acts complained of do not in any manner, by whatever stretch of the imagination, fall under any of the eight (8) enumerated acts constituting the offense of falsification.

In order to properly address the issue presented by petitioner Gloria Aguirre, it is necessary that we discuss the elements of the crime of falsification of private document under the Revised Penal Code, a crime which all the respondents have been accused of perpetrating. The elements of said crime under paragraph 2 of Article 172 of our penal code are as follows: 1) that the offender committed any acts of falsification, except those in par. 7, enumerated in Article 171; 2) that the falsification was committed in any private document; and 3) that the falsification caused damage to a third party or at least the falsification was committed with intent to cause such damage. Under Article 171, paragraph 2, a person may commit falsification of a private document by causing it to appear in a document that a person or persons participated in an act or proceeding, when such person or persons did not in fact so participate in the act or proceeding. On the other hand, falsification under par. 3 of the same article is perpetrated by a person or persons who, participating in an act or proceeding, made statements in that act or proceeding and the offender, in making a document, attributed to such person or persons statements other than those in fact made by such person or persons. And

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the crime defined under paragraph 4 thereof is committed when 1) the offender makes in a document statements in a narration of facts; 2) he has a legal obligation to disclose the truth of the facts narrated by him; 3) the facts narrated by the offender are absolutely false; and 4) the perversion of truth in the narration of facts was made with the wrongful intent of injuring a third person.

Applying the above-stated elements of the crime to the case at bar, in order that respondent Dr. Pascual, and the rest acting in conspiracy with her, to have committed the crime of falsification under par. 3 and 4 of Article 171 of the Revised Penal Code, it is essential that that there be prima facie evidence to show that she had caused it to appear that Larry gave his consent to be vasectomized or at the very least, that the proposed medical procedure was explained to Larry. But in the assailed report, no such thing was done. Lest it be forgotten, the reason for having Larry psychiatrically evaluated was precisely to ascertain whether or not he can validly consent with impunity to the proposed vasectomy, and not to obtain his consent to it or to oblige respondent Dr. Pascual to explain to him what the import of the medical procedure was. Further, that Larry's consent to be vasectomized was not obtained by the psychiatrist was of no moment, because nowhere is it stated in said report that such assent was obtained. At any rate, petitioner Gloria Aguirre contradicts her very own allegations when she persists in the contention that Larry has the mental age of a child; hence, he was legally incapable of validly consenting to the procedure.

In the matter of the supposed incorrect diagnosis of Lourdes Aguirre, with regard to paragraph 2 of Article 171 of the Revised Penal Code, we quote with approval the succinct statements of the Assistant City Prosecutor:

[T]he fact that Dra. Pascual cited finding, which is not of her own personal knowledge in her report does not mean that she committed falsification in the process. Her sources may be wrong and may affect the veracity of her report, but for as long as she has not alleged therein that she personally diagnosed Lourdes Aguirre, which allegation would not then be true, she cannot be charged of falsification. Therefore, it goes without saying that if the author of the report is not guilty, then with more reason the other respondents are not liable. 54(54)

As to the charge of mutilation, Art. 262 of the Revised Penal Code defines the crime as —

Art. 262. Mutilation. — The penalty of reclusion temporal to reclusion perpetua shall be imposed upon any person who shall intentionally mutilate another by depriving him, either totally or partially, of some essential organ for reproduction.

Any other intentional mutilation shall be punished by prision mayor

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in its medium and maximum periods.

A straightforward scrutiny of the above provision shows that the elements

55(55) of mutilation under the first paragraph of Art. 262 of the Revised Penal Code to be 1) that there be a castration, that is, mutilation of organs necessary for generation; and 2) that the mutilation is caused purposely and deliberately, that is, to deprive the offended party of some essential organ for reproduction. According to the public prosecutor, the facts alleged did not amount to the crime of mutilation as defined and penalized above, i.e., "[t]he vasectomy operation did not in any way deprived (sic) Larry of his reproductive organ, which is still very much part of his physical self". Petitioner Gloria Aguirre, however, would want this Court to make a ruling that bilateral vasectomy constitutes the crime of mutilation.

This we cannot do, for such an interpretation would be contrary to the intentions of the framers of our penal code.

A fitting riposte to the issue at hand lies in United States v. Esparcia,

56(56)

in which this Court had the occasion to shed light on the implication of the term mutilation. Therein we said that:

The sole point which it is desirable to discuss is whether or not the crime committed is that defined and penalized by article 414 of the Penal Code. The English translation of this article reads: "Any person who shall intentionally castrate another shall suffer a penalty ranging from reclusion temporal to reclusion perpetua". The Spanish text, which should govern, uses the word "castrare", inadequately translated into English as "castrate". The word "capar", which is synonymous of "castrar", is defined in the Royal Academic Dictionary as the destruction of the organs of generation or conception. Clearly it is the intention of the law to punish any person who shall intentionally deprived another of any organ necessary for reproduction. An applicable construction is that of Viada in the following language:

"At the head of these crimes, according to their order of gravity, is the mutilation known by the name of 'castration' which consists of the amputation of whatever organ is necessary for generation. The law could not fail to punish with the utmost severity such a crime, which, although not destroying life, deprives a person of the means to transmit it. But bear in mind that according to this article in order for 'castration' to exist, it is indispensable that the 'castration' be made purposely. The law does not look only to the result but also to the intention of the act. Consequently, if by reason of an injury or attack, a person is deprived of the organs of generation, the act, although voluntary, not being intentional to that end, it would not come under the provisions of this article, but under No. 2 of article 431." (Viada, Codigo Penal, vol. 3, p. 70. See to same effect, 4 Groizard, Codigo Penal, p. 525.)

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Thus, the question is, does vasectomy deprive a man, totally or partially, of some essential organ of reproduction? We answer in the negative.

In the male sterilization procedure of vasectomy, the tubular passage, called the vas deferens, through which the sperm (cells) are transported from the testicle to the urethra where they combine with the seminal fluid to form the ejaculant, is divided and the cut ends merely tied. 57(57) That part, which is cut, that is, the vas deferens, is merely a passageway that is part of the duct system of the male reproductive organs. The vas deferens is not an organ, i.e., a highly organized unit of structure, having a defined function in a multicellular organism and consisting of a range of tissues. 58(58) Be that as it may, even assuming arguendo that the tubular passage can be considered an organ, the cutting of the vas deferens does not divest or deny a man of any essential organ of reproduction for the simple reason that it does not entail the taking away of a part or portion of the male reproductive system. The cut ends, after they have been tied, are then dropped back into the incision. 59(59)

Though undeniably, vasectomy denies a man his power of reproduction, such procedure does not deprive him, "either totally or partially, of some essential organ for reproduction". Notably, the ordinary usage of the term "mutilation" is the deprivation of a limb or essential part (of the body), 60(60) with the operative expression being "deprivation". In the same manner, the word "castration" is defined as the removal of the testes or ovaries. 61(61) Such being the case in this present petition, the bilateral vasectomy done on Larry could not have amounted to the crime of mutilation as defined and punished under Article 262, paragraph 1, of the Revised Penal Code. And no criminal culpability could be foisted on to respondent Dr. Agatep, the urologist who performed the procedure, much less the other respondents. Thus, we find sufficient evidence to explain why the Assistant City Prosecutor and the DOJ ruled the way they did. Verily, We agree with the Court of Appeals that the writ of certiorari is unavailing; hence, should not be issued.

It is once more apropos to pointedly apply the Court's general policy of non-interference in the conduct of preliminary investigations. As it has been oft said, the Supreme Court cannot order the prosecution of a person against whom the prosecutor does not find sufficient evidence to support at least a prima facie case. 62(62) The courts try and absolve or convict the accused but, as a rule, have no part in the initial decision to prosecute him. 63(63) The possible exception to this rule is where there is an unmistakable showing of a grave abuse of discretion amounting to lack or excess of jurisdiction that will justify judicial intrusion into the precincts of the executive. But that is not the case herein.

WHEREFORE, premises considered, the instant petition is DENIED for

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lack of merit. The assailed 21 July 2005 Decision and 5 December 2005 Resolution, both of the Court of Appeals in CA-G.R. SP No. 88370 are hereby AFFIRMED. Costs against petitioner Gloria Aguirre.

SO ORDERED.

Ynares-Santiago, Austria-Martinez, Corona *(64) and Reyes, JJ., concur.

Footnotes

1.

Rollo, pp. 39-89.

2.

Penned by Court of Appeals Associate Justice Martin S. Villarama, Jr. with Associate Justices Rosmari D. Carandang and Lucenito N. Tagle, concurring; Annex "A" of the Petition; id. at 90-108.

3.

Annex "A-1"; id. at 110.

4.

Id. at 157.

5.

Id. at 159.

6.

Annex "B" of the Petition; id. at 161-163.

7.

Originally named as Jose Miguel Garcia.

8.

Report of Neuropsychological Evaluation conducted by Lourdes K. Ledesma, Ph.D.; rollo, pp. 299-304.

9.

Conducted by Dr. Ma. Teresa Gustilo-Villasor, a clinical psychologist. Id. at

294-298.

10.

Id.

11.

Id. at 232.

12.

Id. at 230-232.

13.

Id. at 212-224.

14.

Id. at 275-278.

15.

Id.

16.

Id. at 287.

17.

Id.

18.

Id. at 288-291.

19.

Id. at 314-316.

20.

Id. at 309-312.

21.

Id. at 279-281.

22.

Id. at 162.

23.

Id.

24.

Id.

25.

Gibson T. Araula, Jr.

26.

Rollo, pp. 161-163.

27.

Id. at 163.

28.

Id. at 164-206.

29.

Id. at 157.

30.

Id. at 107.

31.

Id. at 51-54.

32.

Id. at 105-106.

33.

Id. at 107.

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34. Id. at 53.

35. Id.

36. Id.

37. Id. at 659.

38. Id. at 660.

39. Id. at 764-765.

40. Id. at 765.

41. Id. at 863.

42. Id. at 733.

43. R.R. Paredes v. Calilung, G.R. No. 156055, 5 March 2007, 517 SCRA 369, 394.

44. Id.

45. Id.

46. Webb v. Hon. De Leon, 317 Phil. 758, 789 (1995).

47. R.R. Paredes v. Calilung, supra note 43 at 394.

48. Webb v. Hon. De Leon, supra note 46 at 800.

49. Andres v. Cuevas, G.R. No. 150869, 9 June 2005, 460 SCRA 38, 52.

50. D.M. Consuji, Inc. v. Esguerra, 328 Phil. 1168, 1185 (1996).

51. R.R. Paredes v. Calilung, supra note 43 at 397.

52. Sarigumba v. Sandiganbayan, G.R. Nos. 154239-41, 16 February 2005, 451 SCRA 533, 549.

53. Rollo, pp. 235-243.

54. Id. at 208.

55. Reyes, The Revised Penal Code, Book Two (13th ed.), p. 457.

56. 36 Phil. 840, 840-841 (1917).

57. Solis, Legal Medicine (1987 ed.), p. 623.

58. Clugston, Dictionary of Science (1998 ed.), p. 558.

59. Schwartz, Shires, Spencer, Storer, Principle of Surgery, Vol. Two (4th ed.), pp.

1729-1730.

60. Webster's Third New International Dictionary (1993 ed.), p. 1493.

61. Id. at 349.

62. Sanchez v. Demetriou, G.R. Nos. 111771-77, 9 November 1993, 227 SCRA 627,

643.

63. Id.

* Justice Renato C. Corona was designated to sit as additional member replacing Justice Antonio Eduardo B. Nachura per Raffle dated 10 December 2007.

FIRST DIVISION

[G.R. No. 168486. June 27, 2006.]

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NOE

PHILIPPINES, respondent.

S.

ANDAYA,

petitioner,

vs.

NOE PHILIPPINES , respondent . S. ANDAYA , petitioner , vs . YNARES-SANTIAGO , J p

YNARES-SANTIAGO, J p:

D E C I S I O N

PEOPLE

OF

THE

This is a petition for review on certiorari from the September 29, 2004 Decision 1(65) of the Court of Appeals in CA-G.R. CR No. 26556, affirming the January 29, 2002 Decision 2(66) of the Regional Trial Court, Branch 104 of Quezon City in Criminal Case No. 92-36145, convicting petitioner Noe S. Andaya of falsification of private document, and the April 26, 2005 Resolution 3(67) denying the motion for reconsideration.

Complainant Armed Forces and Police Savings and Loan Association, Inc. (AFPSLAI) is a non-stock and non-profit association authorized to engage in savings and loan transactions. In 1986, petitioner Noe S. Andaya was elected as president and general manager of AFPSLAI. During his term, he sought to increase the capitalization of AFPSLAI to boost its lending capacity to its members. Consequently, on June 1, 1988, the Board of Trustees of AFPSLAI passed and approved Resolution No. RS-88-006-048 setting up a Finder's Fee Program whereby any officer, member or employee, except investment counselors, of AFPSLAI who could solicit an investment of not less than P100,000.00 would be entitled to a finder's fee equivalent to one percent of the amount solicited.

In a letter 4(68) dated September 1991, the Central Bank wrote Gen. Lisandro C. Abadia, then Chairman of the Board of Trustees, regarding the precarious financial position of AFPSLAI due to its alleged flawed management. As a result, Gen. Abadia requested the National Bureau of Investigation (NBI) to conduct an investigation on alleged irregularities in the operations of AFPSLAI which led to the filing of several criminal cases against petitioner, one of which is the instant case based on the alleged fraudulent implementation of the Finder's Fee Program.

On October 5, 1992, an information for estafa through falsification of commercial document was filed against petitioner, to wit:

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The undersigned accuses NOE S. ANDAYA of the crime of Estafa thru Falsification of Commercial Document, committed as follows:

That on or about the 8th day of April, 1991 in Quezon City, Philippines, the above-named accused, with intent to gain, by means of deceit, false pretenses and falsification of commercial document, did then and there, wilfully, unlawfully and feloniously defraud the ARMED FORCES AND POLICE SAVINGS AND LOAN ASSOCIATION, INC., represented by its Chairman of the Board of Director[s], Gen. Lisandro C. Abadia, AFP, in the following manner, to wit: on the date and in the place aforementioned the said accused being then the President and General Manager of the Armed Forces and Police Savings and Loan Association, Inc., caused and approved the disbursement of the sum of P21,000.00, Philippine Currency, from the funds of the association, by then and there making it appear in Disbursement Voucher No. 58380 that said amount represented the 1% finder's fee of one DIOSDADO J. GUILLAS [Guilas]; when in truth and in fact accused knew fully well that there was no such payment to be made by the association as finder's fee; that by virtue of said falsification, said accused was able to encashed (sic) and received (sic) MBTC Check No. 583768 in the sum of P21,000.00, which amount once in his possession, misapplied, misappropriated and converted to his own personal use and benefit, to the damage and prejudice of the said offended party in the aforesaid sum of P21,000.00, Philippine Currency.

DISHEA

CONTRARY TO LAW. 5(69) (Emphasis supplied)

The case was raffled to Branch 104 of the Regional Trial Court of Quezon City and docketed as Criminal Case No. 92-36145. On May 30, 1994, petitioner was arraigned 6(70) and pleaded not guilty to the charge, after which trial on the merits ensued.

The prosecution presented two witnesses, namely, Diosdado Guilas and Judy Balangue.

Guilas, a general clerk of AFPSLAI's Time Deposit Section, testified that on April 8, 1991, he was informed by Tini Gabriel and Julie Alabansa of the Treasury Department that there was a finder's fee in the amount of P21,000.00 in his name. Subsequently, Judy Balangue, an investment clerk of the Time Deposit Section, told him that the finder's fee was for petitioner. When Guilas went to petitioner's office to inform him about the finder's fee in his (Guilas') name, petitioner instructed him to collect the P21,000.00 and turn over the same to the latter. Guilas returned to the Treasury Department and signed Disbursement Voucher No. 58380 7(71) afterwhich he was issued Metrobank Check No. 683768 8(72) for P21,000.00. After encashing the check, he turned over the proceeds to

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petitioner. On cross-examination, Guilas admitted that there was no prohibition in placing the finder's fee under the name of a person who did not actually solicit the investment.

Balangue also testified that on April 3, 1991, petitioner instructed him to prepare Certificate of Capital Contribution Monthly No. 52178 9(73) in the name of Rosario Mercader for an investment in AFPSLAI in the amount of P2,100,000.00 and to inform Guilas that the finder's fee for the aforesaid investment will be placed in the latter's name. On cross-examination, Balangue confirmed that a P2,100,000.00 worth of investment from Rosario Mercader was deposited in AFPSLAI. He further acknowledged that the Finder's Fee Program did not prohibit the placing of another person's name as payee of the finder's fee.

The defense presented three witnesses, namely, Emerita Arevalo, Ernesto Hernandez and petitioner.

Arevalo, secretary of petitioner in AFPSLAI, explained that the finder's fee was for the P2,100,000.00 investment solicited by Ernesto Hernandez from Rosario Mercader. The finder's fee was placed in the name of Guilas upon request of Hernandez so that the same would not be reflected in his (Hernandez's) income tax return. She alleged that Guilas consented to the arrangement of placing the finder's fee in his (Guilas') name. She also claimed that there was no prohibition in the Finder's Fee Program regarding the substitution of the name of the solicitor as long as there was no double claim for the finder's fee over the same investment.

Hernandez, an associate member of AFPSLAI and vice president of Philippine Educational Trust Plan, Inc. (PETP Plans), testified that sometime in 1991, he was able to solicit from Rosario Mercader an investment of P2,100,000.00 in AFPSLAI. He also asked petitioner to place the finder's fee in the name of one of his employees so that he (Hernandez) would not have to report a higher tax base in his income tax return. On April 8, 1991, petitioner handed to him the finder's fee in the amount of P21,000.00.

Petitioner denied all the charges against him. He claimed that the P21,000.00 finder's fee was in fact payable by AFPSLAI because of the P2,100,000.00 investment of Rosario Mercader solicited by Ernesto Hernandez. He denied misappropriating the P21,000.00 finder's fee for his personal benefit as the same was turned over to Ernesto Hernandez who was the true solicitor of the aforementioned investment. Since the finder's fee was in fact owed by AFPSLAI, then no damage was done to the association. The finder's fee was placed in the name of Guilas as requested by Hernandez in order to reduce the tax obligation of the latter. According to petitioner, Guilas consented to the whole setup. DTaSIc

Petitioner

also

claimed

that

Hernandez

was

an

associate

member

of

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AFPSLAI because his application for membership was approved by the membership committee and the Board of Trustees and was in fact issued an I.D. There was no prohibition under the rules and regulation of the Finder's Fee Program regarding the substitution of the name of the solicitor with the name of another person. On cross-examination, petitioner claimed that he merely approved the substitution of the name of Hernandez with that of Guilas in the disbursement voucher upon the request of Hernandez. He brushed aside the imputation of condoning tax evasion by claiming that the issue in the instant proceedings was whether he defrauded AFPSLAI and not his alleged complicity in tax evasion.

After the defense rested its case, the prosecution presented two rebuttal witnesses, namely, Ma. Victoria Maigue and Ma. Fe Moreno.

Maigue, membership affairs office supervisor of AFPSLAI, testified that Hernandez was ineligible to become a member of AFPSLAI under sections 1 and 2 of Article II of the association's by-laws. However, she admitted that the application of Hernandez as member was approved by the membership committee.

Moreno, legal officer of AFPSLAI at the time of her testimony on January 25, 2000, stated that there are eight criminal cases pending against the petitioner in various branches of the Regional Trial Court of Quezon City. In one case decided by Judge Bacalla of Branch 216, petitioner was convicted of estafa through falsification involving similar facts as the instant case. She further stated that Hernandez was not a member of AFPSLAI under sections 1 and 2 of Article II of the by-laws. On cross-examination, she admitted that the case decided by Judge Bacalla convicting petitioner was on appeal with the Court of Appeals.

The defense dispensed with the presentation of Mercader in view of the stipulation of the prosecution on the fact that Mercader was a depositor of AFPSLAI and that she was convinced to invest in the association by Ernesto Hernandez. 10(74)

On June 20, 2001, the trial court rendered a Decision 11(75) convicting petitioner of falsification of private document. On July 5, 2001, petitioner filed a motion for new trial. 12(76) In an Order 13(77) dated December 20, 2001, the trial court ruled that the evidence submitted by petitioner in support of his motion was inadequate to conduct a new trial, however, in the interest of substantial justice, the case should still be reopened pursuant to Section 24, 14(78) Rule 119 of the Rules of Court in order to avoid a miscarriage of justice.

Petitioner proceeded to submit documentary evidence consisting of the financial statements of AFPSLAI from 1996 to 1999 to show that AFPSLAI did not suffer any damage from the payment of the P21,000.00 finder's fee. He likewise offered the testimony of Paterno Madet, senior vice president of

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AFPSLAI, who testified that he was personally aware that Rosario Mercader invested P2,100,000.00 in AFPSLAI; that Hernandez was a member of AFPSLAI and was the one who convinced Mercader to invest; that the finder's fee was placed in the name of Guilas; that petitioner called him to grant the request of Hernandez for the finder's fee to be placed in the name of one of the employees of AFPSLAI; that there was no policy which prohibits the placing of the name of the solicitor of the investment in the name of another person; that the substitution of the name of Hernandez with that of Guilas was approved by petitioner but he (Madet) was the one who approved the release of the disbursement voucher.

On January 29, 2002, the trial court rendered the assailed Decision convicting petitioner of falsification of private document based on the following findings of fact: Hernandez solicited from Rosario Mercader an investment of P2,100,000.00 for AFPSLAI; Hernandez requested petitioner to place the finder's fee in the name of another person; petitioner caused it to appear in the disbursement voucher that Guilas solicited the aforesaid investment; the voucher served as the basis for the issuance of the check for P21,000.00 representing the finder's fee for the investment of Mercader; and Guilas encashed the check and turned over the money to petitioner who in turn gave it to Hernandez. SITCcE

The trial court ruled that all the elements of falsification of private document were present. First, petitioner caused it to appear in the disbursement voucher, a private document, that Guilas, instead of Hernandez, was entitled to a P21,000.00 finder's fee. Second, the falsification of the voucher was done with criminal intent to cause damage to the government because it was meant to lower the tax base of Hernandez and, thus, evade payment of taxes on the finder's fee.

Petitioner moved for reconsideration but was denied by the trial court in an Order 15(79) dated May 13, 2002. On appeal, the Court of Appeals affirmed in toto the decision of the trial court and denied petitioner's motion for reconsideration; hence, the instant petition challenging the validity of his conviction for the crime of falsification of private document.

Preliminarily, petitioner contends that the Court of Appeals contradicted the ruling of the trial court. He claims that the Court of Appeals stated in certain portions of its decision that petitioner was guilty of estafa through falsification of commercial document whereas in the trial court's decision petitioner was convicted of falsification of private document.

A close reading of the Court of Appeals' decision shows that the alleged points of contradiction were the result of inadvertence in the drafting of the same. Read in its entirety, the decision of the Court of Appeals affirmed in toto the decision of the trial court and, necessarily, it affirmed the conviction of petitioner

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for the crime of falsification of private document and not of estafa through falsification of commercial document.

In the main, petitioner implores this Court to review the pleadings he filed before the lower courts as well as the evidence on record on the belief that a review of the same will prove his innocence. However, he failed to specify what aspects of the factual and legal bases of his conviction should be reversed.

Time honored is the principle that an appeal in a criminal case opens the whole action for review on any question including those not raised by the parties. 16(80) After a careful and thorough review of the records, we are convinced that petitioner should be acquitted based on reasonable doubt.

The elements of falsification of private document under Article 172, paragraph 2 17(81) in relation to Article 171 18(82) of the Revised Penal Code are:

(1) the offender committed any of the acts of falsification under Article 171 which, in the case at bar, falls under paragraph 2 of Article 171, i.e., causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate; (2) the falsification was committed on a private document; and (3) the falsification caused damage or was committed with intent to cause damage to a third party.

Although the public prosecutor designated the offense charged in the information as estafa through falsification of commercial document, petitioner could be convicted of falsification of private document, had it been proper, under the well-settled rule that it is the allegations in the information that determines the nature of the offense and not the technical name given by the public prosecutor in the preamble of the information. We explained this principle in the case of U.S. v.

Lim San

19(83) in this wise:

From a legal point of view, and in a very real sense, it is of no concern to the accused what is the technical name of the crime of which he

stands charged. It in no way aids him in a defense on the

which his attention should be directed, and in which he, above all things

else, should be most interested, are the facts alleged. The real question is not did he commit a crime given in the law some technical and specific name, but did he perform the acts alleged in the body of the information in the

manner therein set

The real and important question to him is, "Did

That to

you perform the acts alleged in the manner alleged?" not, "Did you commit a crime named murder?" If he performed the acts alleged, in the manner stated, the law determines what the name of the crime is and fixes the

penalty

If the accused performed the acts alleged in the manner

alleged, then he ought to be punished and punished adequately, whatever

may be the name of the crime which those acts constitute. 20(84)

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The facts alleged in the information are sufficient to constitute the crime of falsification of private document. Specifically, the allegations in the information can be broken down into the three aforestated essential elements of this offense as follows: (1) petitioner caused it to appear in Disbursement Voucher No. 58380 that Diosdado Guillas was entitled to a finder's fee from AFPSLAI in the amount of P21,000.00 when in truth and in fact no finder's fee was due to him; (2) the falsification was committed on Disbursement Voucher No. 58380; and (3) the falsification caused damage to AFPSLAI in the amount of P21,000.00. AHDTIE

The first element of the offense charged in the information was proven by the prosecution. The testimonies of the prosecution witnesses, namely, Diosdado Guilas and Judy Balangue, as well as the presentation of Disbursement Voucher No. 58380 established that petitioner caused the preparation of the voucher in the name of Guilas despite knowledge that Guilas was not entitled to the finder's fee. Significantly, petitioner admitted his participation in falsifying the voucher when he testified that he authorized the release of the voucher in the name of Guilas upon the request of Ernesto Hernandez. While petitioner did not personally prepare the voucher, he could be considered a principal by induction, had his conviction been proper, since he was the president and general manager of AFPSLAI at the time so that his employees merely followed his instructions in preparing the falsified voucher.

The second element of the offense charged in the information, i.e., the falsification was committed in Disbursement Voucher No. 58380, a private document, is likewise present. It appears that the public prosecutor erroneously characterized the disbursement voucher as a commercial document so that he designated the offense as estafa through falsification of commercial document in the preamble of the information. However, as correctly ruled by the trial court, 21(85) the subject voucher is a private document only; it is not a commercial document because it is not a document used by merchants or businessmen to promote or facilitate trade or credit transactions 22(86) nor is it defined and regulated by the Code of Commerce or other commercial law. 23(87) Rather, it is a private document, which has been defined as a deed or instrument executed by a private person without the intervention of a public notary or of other person legally authorized, by which some disposition or agreement is proved, evidenced or set forth, 24(88) because it acted as the authorization for the release of the P21,000.00 finder's fee to Guilas and as the receipt evidencing the payment of this finder's fee.

While the first and second elements of the offense charged in the information were satisfactorily established by the prosecution, it is the third element which is decisive in the instant case. In the information, it was alleged that petitioner caused damage in the amount of P21,000.00 to AFPSLAI because he

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caused it to appear in the disbursement voucher that Diosdado Guilas was entitled to a P21,000.00 finder's fee when in truth and in fact AFPSLAI owed no such sum to him. However, contrary to these allegations in the information, petitioner was able to prove that AFPSLAI owed a finder's fee in the amount of P21,000.00 although not to Guilas but to Ernesto Hernandez.

It was positively shown that Hernandez was able to solicit a P2,100,000.00 worth of investment for AFPSLAI from Rosario Mercader which entitled him to a finder's fee equivalent to one percent of the amount solicited (i.e., P21,000.00) under the Finder's Fee Program. The documentary evidence consisting of the Certificate of Capital Contribution Monthly No. 52178 25(89) which was presented by the prosecution categorically stated that Rosario Mercader deposited P2,100,000.00 worth of investment in AFPSLAI. In fact, Rosario Mercader was no longer presented as a defense witness in view of the stipulation by the prosecution on the fact that Mercader was a depositor of AFPSLAI and that Hernandez was the one who convinced her to make such deposit. 26(90) Moreover, the defense showed that the disbursement voucher was merely placed in the name of Guilas upon the request of Hernandez so that he would have a lower tax base. Thus, after Guilas received the P21,000.00 from AFPSLAI, he gave the money to petitioner who in turn surrendered the amount to Hernandez.

It was further established that Hernandez was an associate member of AFPSLAI and, thus, covered by the Finder's Fee Program. The prosecution tried to cast doubt on the validity of Hernandez's membership in the association but it merely relied on the unsubstantiated claims of its two rebuttal witnesses, namely, Ma. Victoria Maigue, membership affairs office supervisor of AFPSLAI and Ma. Fe Moreno, legal officer of AFPSLAI, who claimed that Hernandez was disqualified from being an associate member under AFPSLAI's by-laws. However, except for a recital of certain provisions of the by-laws, they failed to support their claims with documentary evidence clearly showing that Hernandez was disqualified from being an associate member. Significantly, Maigue admitted on cross-examination that Hernandez's membership was approved by AFPSLAI's membership committee and was issued an AFPSLAI I.D. card. 27(91) Documentary evidence consisting of Hernandez's I.D. card as well as the oral testimonies of petitioner, Arevalo and Hernandez, and the admission of Maigue on cross-examination, support the claim of the defense that Hernandez was an associate member of AFPSLAI. cSaADC

Considering that Hernandez was able to solicit a P2,100,000.00 investment from Mercader, it follows that he was entitled to receive the finder's fee in the amount of P21,000.00. AFPSLAI suffered no damage because it really owed the P21,000.00 finder's fee to Hernandez albeit the sum was initially paid to Guilas and only later turned over to Hernandez. Clearly then, the third essential element

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of the offense as alleged in the information, i.e., the falsification caused damage to AFPSLAI in the amount of P21,000.00, was not proven by the prosecution.

In all criminal prosecutions, the burden of proof is on the prosecution to establish the guilt of the accused beyond reasonable doubt. 28(92) It has the duty to prove each and every element of the crime charged in the information to warrant a finding of guilt for the said crime or for any other crime necessarily included therein. However, in the case at bar, the prosecution failed to prove the third essential element of the crime charged in the information. Thus, petitioner should be acquitted due to insufficiency of evidence.

The trial court convicted petitioner of falsification of private document, while conceding that AFPSLAI suffered no damage, however, the court reasoned that the third essential element of falsification of private document was present because the falsification of the voucher was done with criminal intent to cause damage to the government considering that its purpose was to lower the tax base of Hernandez and, thus, allow him to evade payment of taxes on the finder's fee.

We find ourselves unable to agree with this ratiocination of the trial court because it violates the constitutional right 29(93) of petitioner to be informed of the nature and cause of the accusation against him. As early as the 1904 case of U.S. v. Karelsen, 30(94) the rationale of this fundamental right of the accused was already explained in this wise:

The object of this written accusation was — First. To furnish the accused with such a description of the charge against him as will enable him to make his defense; and second, to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and third, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. (United States vs. Cruikshank, 92 U.S. 542.) In order that this requirement may be satisfied, facts must be stated, not conclusions of law. Every crime is made up of certain acts and intent; these must be set forth in the complaint with reasonable particularity of time, place, names (plaintiff and defendant), and circumstances. In short, the complaint must contain a specific allegation of every fact and circumstances necessary to constitute the crime charged. 31(95) (Emphasis supplied)

It is fundamental that every element constituting the offense must be alleged in the information. The main purpose of requiring the various elements of a crime to be set out in the information is to enable the accused to suitably prepare his defense because he is presumed to have no independent knowledge of the facts that constitute the offense. 32(96) The allegations of facts constituting the offense charged are substantial matters and an accused's right to question his conviction

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based on facts not alleged in the information cannot be waived. 33(97) No matter how conclusive and convincing the evidence of guilt may be, an accused cannot be convicted of any offense unless it is charged in the information on which he is tried or is necessarily included therein. 34(98) To convict him of a ground not alleged while he is concentrating his defense against the ground alleged would plainly be unfair and underhanded. 35(99) The rule is that a variance between the allegation in the information and proof adduced during trial shall be fatal to the criminal case if it is material and prejudicial to the accused so much so that it affects his substantial rights. 36(100)

Thus, in Alonto v. People, 37(101) Dico v. Court of Appeals 38(102) and Ongson v. People, 39(103) we acquitted the accused for violation of Batas Pambansa Bilang 22 ("The Bouncing Checks Law") because there was a variance between the identity and date of issuance of the check alleged in the information and the check proved by the prosecution during trial:

This Court notes, however, that under the third count, the information alleged that petitioner issued a check dated May 14, 1992 whereas the documentary evidence presented and duly marked as Exhibit "I" was BPI Check No. 831258 in the amount of P25,000 dated April 5, 1992. Prosecution witness Fernando Sardes confirmed petitioner's issuance of the three BPI checks (Exhibits "G," "H," and "I"), but categorically stated that the third check (BPI Check No. 831258) was dated May 14, 1992, which was contrary to that testified to by private complainant Violeta Tizon, i.e., BPI check No. 831258 dated April 5, 1992. In view of this variance, the conviction of petitioner on the third count (Criminal Case No. Q-93-41751) cannot be sustained. It is on this ground that petitioner's fourth assignment of error is tenable, in that the prosecution's exhibit, i.e., Exhibit "I" (BPI Check No. 831258 dated April 5, 1992 in the amount of P25,000) is excluded by the law and the rules on evidence. Since the identity of the check enters into the first essential element of the offense under Section 1 of B.P. 22, that is, that a person makes, draws or issues a check on account or for value, and the date thereof involves its second element, namely, that at the time of issue the maker, drawer or issuer knew that he or she did not have sufficient funds to cover the same, there is a violation of petitioner's constitutional right to be informed of the nature of the offense charged in view of the aforesaid variance, thereby rendering the conviction for the third count fatally defective. 40(104) (Underscoring supplied)

Similarly, in the case of Burgos v. Sandiganbayan, 41(105) we upheld the constitutional right of the accused to be informed of the accusation against him in a case involving a variance between the means of committing the violation of Section 3(e) of R.A. 3019 alleged in the information and the means found by the Sandiganbayan:

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Common and foremost among the issues raised by petitioners is the argument that the Sandiganbayan erred in convicting them on a finding of fact that was not alleged in the information. They contend that the information charged them with having allowed payment of P83,850 to Ricardo Castañeda despite being aware and knowing fully well that the surveying instruments were not actually repaired and rendered functional/operational. However, their conviction by the Sandiganbayan was based on the finding that the surveying instruments were not repaired in accordance with the specifications contained in the job orders.

xxx xxx

xxx

In criminal cases, where the life and liberty of the accused is at stake, due process requires that the accused be informed of the nature and cause of the accusation against him. An accused cannot be convicted of an offense unless it is clearly charged in the complaint or information. To convict him of an offense other than that charged in the complaint or information would be a violation of this constitutional right.

The important end to be accomplished is to describe the act with sufficient certainty in order that the accused may be appraised of the nature of the charge against him and to avoid any possible surprise that may lead to injustice. Otherwise, the accused would be left in the unenviable state of speculating why he is made the object of a prosecution.

xxx xxx

xxx

There is no question that the manner of commission alleged in the information and the act the Sandiganbayan found to have been committed are both violations of Section 3(e) of R.A. 3019. Nonetheless, they are and remain two different means of execution and, even if reference to Section 3(e) of R.A. 3019 has been made in the information, appellants' conviction should only be based on that which was charged, or included, in the information. Otherwise, there would be a violation of their constitutional right to be informed of the nature of the accusation against them. HIcTDE

In Evangelista v. People, a judgment of conviction by the Sandiganbayan, for violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act, was reversed by the Court on the ground that accused was made liable for acts different from those described in the information. The accused therein was convicted on the finding that she failed to identify with certainty in her certification the kinds of taxes paid by Tanduay Distillery, Inc., although the information charged her with falsifying said certificate. The Court said that, constitutionally, the accused has a right to be informed of the nature and cause of the accusation against her. To convict her of an offense other than that charged in the complaint or information would be a violation of this constitutional right.

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Contrary to the stand of the prosecution, the allegations contained in the information and the findings stated in the Sandiganbayan decision are not synonymous. This is clearly apparent from the mere fact that the defenses applicable for each one are different. To counter the allegations contained in the information, petitioners only had to prove that the instruments were repaired and rendered functional/operational. Under the findings stated in the Sandiganbayan decision, petitioners' defense would have been to show not only that the instruments were repaired, but were repaired in accordance with the job order.

xxx

xxx

xxx

This is not to say that petitioners cannot be convicted under the information charged. The information in itself is valid. It is only that the Sandiganbayan erred in convicting them for an act that was not alleged 42(106) (Underscoring supplied)

As in the Burgos case, the information in the case at bar is valid, however, there is a variance between the allegation in the information and proof adduced during trial with respect to the third essential element of falsification of private document, i.e., the falsification caused damage or was committed with intent to cause damage to a third party. To reiterate, petitioner was charged in the information with causing damage to AFPSLAI in the amount of P21,000.00 because he caused it to appear in the disbursement voucher that Guilas was entitled to a P21,000.00 finder's fee when in truth and in fact AFPSLAI owed no such amount to Guilas. However, he was convicted by the trial court of falsifying the voucher with criminal intent to cause damage to the government because the trial court found that petitioner's acts were designed to lower the tax base of Hernandez and aid the latter in evading payment of taxes on the finder's fee.

We find this variance material and prejudicial to petitioner which, perforce, is fatal to his conviction in the instant case. By the clear and unequivocal terms of the information, the prosecution endeavored to prove that the falsification of the voucher by petitioner caused damage to AFPSLAI in the amount of P21,000.00 and not that the falsification of the voucher was done with intent to cause damage to the government. It is apparent that this variance not merely goes to the identity of the third party but, more importantly, to the nature and extent of the damage done to the third party. Needless to state, the defense applicable for each is different.

More to the point, petitioner prepared his defense based precisely on the allegations in the information. A review of the records shows that petitioner concentrated on disproving that AFPSLAI suffered damage for this was the charge in the information which he had to refute to prove his innocence. As previously

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discussed, petitioner proved that AFPSLAI suffered no damage inasmuch as it really owed the finder's fee in the amount of P21,000.00 to Hernandez but the same was placed in the name of Guilas upon Hernandez's request. If we were to convict petitioner now based on his intent to cause damage to the government, we would be riding roughshod over his constitutional right to be informed of the accusation because he was not forewarned that he was being prosecuted for intent to cause damage to the government. It would be simply unfair and underhanded to convict petitioner on this ground not alleged while he was concentrating his defense against the ground alleged. SDHTEC

The surprise and injustice visited upon petitioner becomes more evident if we take into consideration that the prosecution never sought to establish that petitioner's acts were done with intent to cause damage to the government in that it purportedly aided Hernandez in evading the payment of taxes on the finder's fee. The Bureau of Internal Revenue was never made a party to this case. The income tax return of Hernandez was, likewise, never presented to show the extent, if any, of the actual damage to the government of the supposed under declaration of income by Hernandez. Actually, the prosecution never tried to establish actual damage, much less intent to cause damage, to the government in the form of lost income taxes. There was here no opportunity for petitioner to object to the evidence presented by the prosecution on the ground that the evidence did not conform to the allegations in the information for the simple reason that no such evidence was presented by the prosecution to begin with.

Instead, what the trial court did was to deduce intent to cause damage to the government from the testimony of petitioner and his three other witnesses, namely, Arevalo, Hernandez and Madet, that the substitution of the names in the voucher was intended to lower the tax base of Hernandez to avoid payment of taxes on the finder's fee. In other words, the trial court used part of the defense of petitioner in establishing the third essential element of the offense which was entirely different from that alleged in the information. Under these circumstances, petitioner obviously had no opportunity to defend himself with respect to the charge that he committed the acts with intent to cause damage to the government because this was part of his defense when he explained the reason for the substitution of the names in the voucher with the end goal of establishing that no actual damage was done to AFPSLAI. If we were to approve of the method employed by the trial court in convicting petitioner, then we would be sanctioning the surprise and injustice that the accused's constitutional right to be informed of the nature and cause of the accusation against him precisely seeks to prevent. It would be plain denial of due process.

In view of the foregoing, we rule that it was error to convict petitioner for acts which purportedly constituted the third essential element of the crime but

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which were entirely different from the acts alleged in the information because it violates in no uncertain terms petitioner's constitutional right to be informed of the nature and cause of the accusation against him.

No doubt tax evasion is a deplorable act because it deprives the government of much needed funds in delivering basic services to the people. However, the culpability of petitioner should have been established under the proper information and with an opportunity for him to adequately prepare his defense. It is worth mentioning that the public prosecutor has been apprised of petitioner's defense in the counter-affidavit 43(107) that he filed before the NBI. He claimed there that AFPSLAI really owed the P21,000.00 finder's fee not to Guilas but to Hernandez and that the finder's fee was placed in the name of Guilas under a purported financial arrangement between petitioner and Guilas. Yet in his Resolution 44(108) dated September 14, 1992, the public prosecutor disregarded petitioner's defense and proceeded to file the information based on the alleged damage that petitioner caused to AFPSLAI in the amount of P21,000.00 representing unwarranted payment of finder's fee. 45(109) During the trial proper, the prosecution was again alerted to the fact that AFPSLAI suffered no actual damage and that the substitution of the names in the voucher was designed to aid Hernandez in evading the payment of taxes on the finder's fee. This was shown by no less than the prosecution's own documentary evidence — the Certificate of Capital Contribution Monthly No. 52178 in the amount of P2,100,000.00 issued to Rosario Mercader which was prepared and identified by the prosecution witness, Judy Balangue. Later on, the testimonies of the defense witnesses, Arevalo, Hernandez, Madet and petitioner, clearly set forth the reasons for the substitution of the names in the disbursement voucher. However, the prosecution did not take steps to seek the dismissal of the instant case and charge petitioner and his cohorts with the proper information before judgment by the trial court as expressly allowed under Section 19, 46(110) Rule 119 of the Rules of Court. 47(111) Instead, the prosecution proceeded to try petitioner under the original information even though he had an adequate defense against the offense charged in the information. Regrettably, these mistakes of the prosecution can only benefit petitioner. EIDaAH

In closing, it is an opportune time to remind public prosecutors of their important duty to carefully study the evidence on record before filing the corresponding information in our courts of law and to be vigilant in identifying and rectifying errors made. Mistakes in filing the proper information and in the ensuing prosecution of the case serve only to frustrate the State's interest in enforcing its criminal laws and adversely affect the administration of justice.

WHEREFORE, the petition is GRANTED. The September 29, 2004 Decision and April 26, 2005 Resolution of the Court of Appeals in CA-G.R. CR

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No. 26556 are REVERSED and SET ASIDE. Petitioner is ACQUITTED based on reasonable doubt. The Bail Bond is CANCELLED.

SO ORDERED.

Panganiban, C.J., Austria-Martinez, Callejo, Sr. and Chico-Nazario, JJ., concur.

Footnotes

1.

Rollo, pp. 82-100. Penned by Associate Justice Amelita G. Tolentino and concurred in by Associate Justices Roberto A. Barrios and Vicente S.E. Veloso.

2.

Id. at 25-61. Penned by Judge Thelma A. Ponferrada.

 

3.

Id. at 16-18.

4.

Records, pp. 44-47.

5.

Id. at 1-2.

6.

Id. at 116.

7.

Id. at 181.

8.

Id. at 182.

9.

Id. at 186.

10.

Id. at 320.

11.

Id. at 389-407. Penned by Judge Thelma A. Ponferrada.

12.

Id. at 411-413.

13.

Id. at 460-461.

14.

SEC. 24. Reopening. At any time before finality of the judgment of conviction, the judge may, motu proprio or upon motion, with hearing in either case, reopen the proceedings to avoid a miscarriage of justice. The proceedings shall be terminated within thirty (30) days from the order granting it.

15.

Rollo, pp. 520-521.

16.

People v. Yam-id, 368 Phil. 131, 137 (1999).

 

17.

Art. 172. Falsification by private individuals and use of falsified documents. The penalty of prisión correccional in its medium and maximum periods and a fine of not more than 5,000 pesos shall be imposed upon:

 

xxx

xxx

xxx

 

2.

Any person who, to the damage of a third party, or with the intent to cause

such damage, shall in any private document commit any of the acts of falsification enumerated in the next preceding article.

 

xxx

xxx

xxx

18.

Art. 171. Falsification by public officer, employee or notary or ecclesiastic minister. — The penalty of prisión mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking

advantage of his official position, shall falsify a document by committing any of the following acts:

1. Counterfeiting or imitating any handwriting, signature or rubric;

2. Causing it to appear that persons have participated in any act or

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proceeding when they did not in fact so participate;

3. Attributing to persons who have participated in an act or proceeding

statements other than those in fact made by them;

4. Making untruthful statements in a narration of facts;

5. Altering true dates;

6. Making any alteration or intercalation in a genuine document which

changes its meaning;

7. Issuing in an authenticated form a document purporting to be a copy

of an original document when no such original exits, or including in such copy a statement contrary to, or different from, that of the genuine original; or

8. Intercalating any instrument or note relative to the issuance thereof

in a protocol, registry, or official book. The same penalty shall be imposed upon any ecclesiastical minister who shall commit any of the offenses enumerated in the preceding paragraph of this article, with respect to any record or document of such character that its falsification may affect the civil status of persons.

19. 17 Phil. 273 (1910).

20. Id. at 278-279.

21. Citing People v. Francisco, C.A. No. 05130-41-CR, August 23, 1966, 64 O.G. 537, 541, cited in Luis B. Reyes, THE REVISED PENAL CODE, Book II (14th ed., 1998), p. 234. In People v. Francisco, the Court of Appeals ruled that "the cash disbursement vouchers here in question are not negotiable instruments nor are they defined and regulated by the Code of Commerce. They are nothing more than receipts evidencing payment to borrowers of the loans extended to them and as such are private documents only."

22. Monteverde v. People, 435 Phil. 906, 921 (2002), citing Luis B. Reyes, THE REVISED PENAL CODE, Book II (14th ed., 1998), p. 236, citing People v. Lizares, C.A., 65 O.G. 7174.

23. Luis B. Reyes, THE REVISED PENAL CODE, Book II (14th ed., 1998), p. 235, citing People v. Co Beng, C.A., 40 O.G. 1913.

24. U.S. v. Orera, 11 Phil. 596, 597 (1907).

25. Records, p. 186.

26. Id. at 320.

27. TSN, July 20, 1999, pp. 12-13, 16.

28. People v. Caiñgat, 426 Phil. 782, 792 (2002).

29. CONSTITUTION, Article III, Section 14(2).

30. 3 Phil. 223 (1904).

31. Id. at 226.

32. Balitaan v. Court of First Instance of Batangas, Branch 11, 201 Phil. 311, 323

(1982).

33. Burgos v. Sandiganbayan, 459 Phil. 794, 810 (2003).

34. U.S. v. Campo, 23 Phil. 368, 371 (1912).

35. People v. Pailano, G.R. No. 43602, January 31, 1989, 169 SCRA 649, 654.

36. 41 Am Jur 2d § 259, pp. 863-864.

37. G.R. No. 140078, December 9, 2004, 445 SCRA 624.

38. G.R. No. 141669, February 28, 2005, 452 SCRA 441, 454-456.

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39. G.R. No. 156169, August 12, 2005, 466 SCRA 656, 669-671.

40. Alonto v. People, supra at 640-641.

41. Supra note 34.

42. Id. at 804-810.

43. Records, pp. 19-20.

44. Id. at 3-7.

45. The public prosecutor reasoned thus: "We cannot give credence to the protestation of witness for respondent[,] Hernandez[,] that he was able to convince and solicit money from Mrs. Rosario Mercader. We may still believe this if it were a transaction done singly or a couple of times, but the records show that this has become a plan, a scheme through deceitful means to obtain money thus through the years caused a drain to AFPSLAI of its much needed funding. Because of this, Central Bank of the AFPSLAI commenting adversely upon respondent's actuations in allowing the dissipation of the Association's assets thus resulting in a few years of its total collapse. Mrs. Mercader was not called upon to explain if she really was an investor. In cases where corroboration is required, it must be done, otherwise the party will lose his cause where the testimony of a witness is contradicted and the fact sought to be proved is important, corroboration is ."

46. SEC. 19. When mistake has been made in charging the proper offense. — When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or of any other offense necessarily included therein, the accused shall not be discharged if there appears to be good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information.

47. See People v. Uba, 99 Phil. 134 (1956).

necessary

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1. Rollo, pp. 39-89.

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Endnotes

2. Penned by Court of Appeals Associate Justice Martin S. Villarama, Jr. with Associate Justices Rosmari D. Carandang and Lucenito N. Tagle, concurring; Annex "A" of the Petition; id. at 90-108.

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3. Annex "A-1"; id. at 110.

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4. Id. at 157.

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5. Id. at 159.

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6. Annex "B" of the Petition; id. at 161-163.

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7. Originally named as Jose Miguel Garcia.

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8. Report of Neuropsychological Evaluation conducted by Lourdes K. Ledesma, Ph.D.; rollo, pp. 299-304.

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9. Conducted by Dr. Ma. Teresa Gustilo-Villasor, a clinical psychologist. Id. at

294-298.

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10. Id.

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11. Id. at 232.

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12. Id. at 230-232.

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13. Id. at 212-224.

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14. Id. at 275-278.

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15. Id.

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16. Id. at 287.

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17. Id.

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18. Id. at 288-291.

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19. Id. at 314-316.

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20. Id. at 309-312.

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21. Id. at 279-281.

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22. Id. at 162.

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23. Id.

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24.

Id.

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25. Gibson T. Araula, Jr.

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26. Rollo, pp. 161-163.

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27. Id. at 163.

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28. Id. at 164-206.

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29. Id. at 157.

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30. Id. at 107.

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31. Id. at 51-54.

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32. Id. at 105-106.

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33. Id. at 107.

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34. Id. at 53.

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35. Id.

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36. Id.

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37. Id. at 659.

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38. Id. at 660.

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39. Id. at 764-765.

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40. Id. at 765.

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41. Id. at 863.

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42. Id. at 733.

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43. R.R. Paredes v. Calilung, G.R. No. 156055, 5 March 2007, 517 SCRA 369, 394.

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44. Id.

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45. Id.

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46. Webb v. Hon. De Leon, 317 Phil. 758, 789 (1995).

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47. R.R. Paredes v. Calilung, supra note 43 at 394.

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48. Webb v. Hon. De Leon, supra note 46 at 800.

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49. Andres v. Cuevas, G.R. No. 150869, 9 June 2005, 460 SCRA 38, 52.

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50. D.M. Consuji, Inc. v. Esguerra, 328 Phil. 1168, 1185 (1996).

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51. R.R. Paredes v. Calilung, supra note 43 at 397.

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52. Sarigumba v. Sandiganbayan, G.R. Nos. 154239-41, 16 February 2005, 451 SCRA 533, 549.

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53. Rollo, pp. 235-243.

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54. Id. at 208.

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55. Reyes, The Revised Penal Code, Book Two (13th ed.), p. 457.

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56. 36 Phil. 840, 840-841 (1917).

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57. Solis, Legal Medicine (1987 ed.), p. 623.

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58. Clugston, Dictionary of Science (1998 ed.), p. 558.

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59. Schwartz, Shires, Spencer, Storer, Principle of Surgery, Vol. Two (4th ed.), pp.

1729-1730.

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60. Webster's Third New International Dictionary (1993 ed.), p. 1493.

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61. Id. at 349.

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62. Sanchez v. Demetriou, G.R. Nos. 111771-77, 9 November 1993, 227 SCRA 627,

643.

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63. Id.

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* Justice Renato C. Corona was designated to sit as additional member replacing Justice Antonio Eduardo B. Nachura per Raffle dated 10 December 2007.

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1. Rollo, pp. 82-100. Penned by Associate Justice Amelita G. Tolentino and concurred in by Associate Justices Roberto A. Barrios and Vicente S.E. Veloso.

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2. Id. at 25-61. Penned by Judge Thelma A. Ponferrada.

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3.

Id. at 16-18.