G.R. No.

215942

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
KUSAIN AMIN y AMPUAN, a.k.a. "Cocoy,", Accused-Appellant.

DECISION

SERENO, CJ.:

This is an appeal assailing the Decision1 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 01179,
which affirmed the Decision2 of the Regional Trial Court (RTC), Branch 40, Cagayan de Oro City, in
Criminal Case No. 2004-010. The RTC found accused-appellant guilty beyond reasonable doubt of
the crime of illegal sale of prohibited drugs under Section 5, paragraph 1, Article II of Republic Act
(R.A.) No. 9165.

Accused-appellant was charged under the following Information:

That on January 2, 2004, at 5:40 p.m. more or less, at Landless, Colrai, Macabalan, Cagayan de
Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused
without authority of law, did then and there wilfully and feloniously have in his possession custody
and control one (1) small heated-sealed transparent plastic sachet of white crystalline substance
locally known as shabu with approx. weight of 0.09 gram valued to more or less P100 and sold it to a
poseur-buyer of PNP-CDO for a consideration of P100.00 marked money one (1) pc one hundred
pesos bill with serial number FA246643, well knowing it to be a dangerous drug.

Contrary to law. 3

Upon arraignment, accused-appellant, assisted by counsel, pleaded not guilty to the charge.4 Hence,
trial ensued.

On 14 June 2013, the RTC rendered a Decision, 5 the dispositive portion of which is herein quoted:

WHEREFORE, the foregoing considered, the prosecution having established all the elements of the
crime of illegal sale of a dangerous drug, the Court hereby finds the accused, Kusain Amin y
Ampuan GUILTY beyond reasonable doubt of the crime of Violation of Sec. 5, par. 1, Article II of
R.A. 9165, and hereby sentences him to suffer the penalty of LIFE IMPRISONMENT and to pay a
fine of ₱500,000.00. The sachet of shabu described in the Information is ordered confiscated in favor
of the Government to be disposed of in accordance with law and regulations. No pronouncement as
to costs.

SO ORDERED.6

In so ruling, the RTC gave credence to the testimonies of the prosecution witnesses: Police
Inspector (P/Insp.) Penel Ramas; and Senior Police Officers (SPOs)2 Ricky Bagas, Jameson Alvior,
Jr., and Benjamin Dacara (Ret.). 7The trial court held that the prosecution had successfully proved
the existence of all the essential elements of the crime, accused-appellant having been "positively
identified by the police officers who conducted the buy-bust operation as the seller of
the shabu presented in the case."8 Likewise, the prosecution established that the "sale actually
occurred and that one sachet of shahu was sold for the price of ₱100.00." 9 P/Insp. Ramas testified
that he was about 10 to 15 meters away when the confidential informant/poseur-buyer handed the
marked money to accused-appellant in exchange for shahu. 10 After relying on the signal given by the
poseur-buyer (i.e. removing his eyeglasses), they proceeded to frisk accused-appellant and arrest
him immediately. They were able to recover the marked money in the latter’s possession.11

Moreover, the RTC found that the identity of the dangerous drug was sufficiently proven because the
prosecution was able to establish the chain of custody, from the time it was sold by accused-
appellant to when it was presented in court.12 SPO2 Dacara testified that he had personally received
the sachet of shabu from their poseur-buyer at the place of arrest and brought it to their office later.
After making the appropriate markings (the letter "A" and his initials) on the sachet, he turned it over
to SPO2 Bagas for delivery to the Philippine National Police (PNP) Crime Laboratory. 13 SPO2 Alvior
then identified the sachet as the same item that he had received on 3 January 2004 from SPO3
Sagas at the PNP Crime Laboratory Office, and that he later turned over to the examining forensic
chemist, Police Senior Inspector (P/SI) April Garcia Carbajal. 14

In light of the positive testimonies of the prosecution witnesses, the trial court gave scant
consideration to the uncorroborated self-serving allegations of accused-appellant that he had been
framed. He was sentenced to suffer the penalty of life imprisonment and to pay a fine of five hundred
thousand pesos (₱500,000) for the crime of illegal sale of prohibited drugs. 15

Upon intermediate appellate review, the CA rendered a Decision on 16 October 2014, the dispositive
portion of which reads:

WHEREFORE, the appeal is DENIED. The Judgment dated June 14, 2013 of the Regional Trial
Court of Misamis Oriental, 10th Judicial Region, Branch 40 in Criminal Case No. 2004-010 is hereby
AFFIRMED in toto.

SO ORDERED. 16

In convicting appellant of the crimes charged, the CA disregarded his position that there was no valid
buy-bust operation, because the arresting team had not coordinated the matter with the Philippine
Drug Enforcement Agency (PDEA). 17 The appellate court maintained that neither R.A. 9165 nor its
Implementing Rules and Regulations (IRR) required PDEA's participation in any buy-bust operation.
After all, a buy-bust is "just a form of an injlagrante arrest sanctioned by Section 5, Rule 113 of the
Rules of Court [sic], which police authorities may rightfully resort to in apprehending violators x x x. A
buy-bust operation is not invalidated by mere non-coordination with the PDEA." 18

On accused-appellant's contention that the prosecution's failure to present the poseur-buyer

weakened the arresting team's testimonies, the CA held that the non-presentation of the poseur-
buyer is fatal only if there is no other eyewitness to the illicit transaction, as held in People v.
Berdadero. 19 In any case, the testimonies of SPO2 Dacara and P/Insp. Ramas, who were both
within clear seeing distance, "presented a complete picture, providing every detail of the buy-bust
operation."20

Finally, as regards the failure of the police officers to immediately mark the alleged shabu at the
crime scene (but only at the police station), the CA ruled that "failure to strictly comply with Section
21 (1), Article 11 of RA No. 9165 does not necessarily render an accused's arrest illegal or the items
seized or confiscated from him inadmissible."21 It further emphasized that "[w]hat is of utmost
importance is the preservation of the integrity and the evidentiary value of the seized items, as these
would be utilized in the determination of the guilt or innocence of the accused."22

We now resolve the appeal.

ISSUE

From the foregoing, the sole issue before us is whether or not the RTC and the CA erred in finding
the testimonial evidence of the prosecution witnesses sufficient to warrant appellant's conviction for
the crimes charged.

THE COURT'S RULING

We reverse the appellate court.

While prior coordination with the PDEA is not necessary to make a buy-bust operation valid,23 we are
constrained to reverse the findings of the CA because the non-presentation of the poseur-buyer is
fatal to the cause of the prosecution. In People v. Andaya, 24 the importance of presenting the
poseur-buyer's testimony before the trial court was underscored by the Court in this wise:

The justification that underlies the legitimacy of the buy-bust operation is that the suspect is
arrested in flagranti delicto, that is, the suspect has just committed, or is in the act of committing, or
is attempting to commit the offense in the presence of the arresting police officer or private person.
The arresting police officer or private person is favored in such instance with the presumption of
regularity in the performance of official duty.

Proof of the transaction must be credible and complete. In every criminal prosecution, it is the State,
and no other, that bears the burden of proving the illegal sale of the dangerous drug beyond
reasonable doubt. This responsibility imposed on the State accords with the presumption of
innocence in favor of the accused, who has no duty to prove his innocence until and unless the
presumption of innocence in his favor has been overcome by sufficient and competent evidence.25

In the same case, we emphasized that "[t]here would have been no issue against [the buy-bust
operation], except that none of the members of the buy-bust team had directly witnessed the
transaction, if any, between Andaya and the poseur buyer due to their being positioned at a distance
from the poseur buyer and Andaya at the moment of the supposed transaction."26 It was even noted
in that case that the "members of the buy-bust team arrested Andaya on the basis of the pre-
arranged signal from the poseur-buyer."27

While there is a "need to hide [the poseur-buyers] identit[ies] and preserve their invaluable service to
the police,"28this consideration cannot be applied to this case, because, as in Andaya, the "poseur-
buyer and the confidential informant were one and the same. Without the poseur buyer's testimony,
the State did not credibly incriminate [the accused]."29

The testimonies of prosecution witnesses SPO2 Bagas, SPO2 Alvior, Jr., SPO2 Dacara, and P/Insp.
Ramas (who was 10 meters away) cannot be considered as eyewitness accounts of the illegal sale.
There was no indication that they directly saw an illegal drug being sold to the poseur-buyer.
In People v. Guzon, 30 we held that "the police officer, who admitted that he was seven (7) to eight (8)
meters away from where the actual transaction took place, could not be deemed an eyewitness to
the crime." 31

At this juncture, We reiterate our point in Andaya:

Secondly, the reliance on the supposed signal to establish the consummation of the transaction
between the poseur buyer and Andaya was unwarranted because the unmitigatedly hearsay
character of the signal rendered it entirely bereft of trustworthiness. The arresting members of the
buy-bust team interpreted the signal from the anonymous poseur buyer as the sign of the
consummation of the transaction. Their interpretation, being necessarily subjective without the
testimony of the poseur buyer, unfairly threatened the libe1iy of Andaya. We should not allow that
threat to perpetuate itself. And, lastly, the reliance on the signal would deprive Andaya the right to
confront and test the credibility of the poseur buyer who supposedly gave it. 32

This interpretation is premised on the legal reasoning that "when the inculpatory facts and
circumstances are capable of two (2) or more explanations, one of which is consistent with the
innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the
test of moral ce1iainty and is not sufficient to support a conviction."33 In light of the pronouncements
above, We deem it unnecessary to discuss other issues raised by both parties.

WHEREFORE, the Court REVERSES and SETS ASIDE the Court of Appeals Decision dated 16
October 2014 in CA-GR. CR-I-LC. No. 01179 affirming the Decision dated 14 June 2013 issued by
the Regional Trial Court, Branch 40, Cagayan de Oro City, in Criminal Case No. 2004-010;
and ACQUITS accused-appellant KUSAIN AMIN y AMPUAN of the crime charged in Criminal Case
No. 2004-010 on the ground of reasonable doubt. The Director of the Bureau of Corrections is
hereby ORDERED to immediately release accused-appellant KUSAIN AMIN y AMPUAN from
custody, unless he is being detained for some other lawful cause.

SO ORDERED.

MARIA LOURDES P.A. SERENO

Chief Justice

WE CONCUR:

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

MARIANO C. DEL CASTILLO ESTELA M. PERLAS-BERNABE

Associate Justice Associate Justice

ALFREDO BENJAMIN S. CAGUIOA

Associate Justice

CERTIFICATION

Pursuant to the Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court’s Division.

MARIA LOURDES P.A. SERENO

Chief Justice
G.R. No. 211917

NORMA C. GAMARO and JOSEPHINE G. UMALI, Petitioners

vs.
PEOPLE OF THE PHILIPPINES, Respondent

DECISION

PERALTA, J.:

Before us is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Court which seeks the
reversal of the Decision2 dated November 25, 2013, and Resolution3 dated February 21, 2014 of the
Court of Appeals (CA) in CA-G.R. CR No. 34454. The CA affirmed the Decision of the Regional Trial
Court (RTC), Branch 32, San Pablo City in Criminal Case No. 15407 finding petitioner Norma C.
Gamaro guilty of Estafa under Article 315, paragraph 1(b) of the Revised Penal Code, while
exonerating petitioner Josephine G. Umali from the crime charged. The RTC also adjudged the
petitioners jointly and severally liable to pay the monetary awards in favor of private complainant
Joan Fructoza E. Fineza.

The factual antecedents are as follows:

On March 1, 2005, the petitioners were charged with Estafa under Article 315, paragraph 2(a), of the
Revised Penal Code before Branch 3 2 of the RTC of San Pablo City under the following
Information:

That on or about January 2, 2002, in the City of San Pablo, Republic of the Philippines, and within
the jurisdiction of this Honorable Court, the accused above-named, conspiring, confederating and
mutually helping one another, did then and there, defraud one JOAN FRUCTOZA E. FINEZA, in the
following manner, to wit: That Norma C. Gamaro, pretending that she is knowledgeable in the
business of buy and sell of jewelry, other merchandise and financing, assuring complainant of a sure
market and big profit lure and entice complainant Joan Fructoza E. Fineza to enter into the business
and the latter purchased and delivered to her the jewelry amounting to ₱2,292,519.00 with the
obligation to manage the business for private complainant and remit the proceeds of the sale to her,
but accused, far from complying, with her obligation, managed the business as her own, failing to
remit the proceeds of the sale and pledging jewelries to Lluillier Pawnshop where accused
Josephine Umali work while the checks issued by respondent Rowena Gamaro to guarantee their
payment were all dishonoured for having been drawn against insufficient funds, to the damage and
prejudice of the offended party in the aforementioned amount.

CONTRARY TO LAW.4

When arraigned on August 4, 2005, petitioners pleaded not guilty to the crime charged, while
accused Rowena C. Gamaro remained at-large.5 Thereafter, trial on the merits ensued.

The evidence disclosed the following facts:

Sometime in 2002, private complainant Joan Fructoza E. Fineza (Fineza) engaged in a business
venture with petitioner Norma C. Gamaro and her daughters - petitioners Josephine G.
Umali (Umali) and accused Rowena Gamaro Fineza would buy any foreclosed pieces of jewelry
from M. Lhuillier Pawnshop whenever informed by Umali who was then the manager of the said
pawnshop located at Basa St., San Pablo City, Laguna. The pieces of jewelry would then be sold for
profit by Norma Gamaro to her co-employees at the Social Security System (SSS) in San Pablo City.
The proceeds of the sale would then be divided among them in the following manner: fifty percent
(50%) would go to Fineza, while the other fifty percent (50%) would be divided among Umali, Norma
Gamaro and Rowena Gamaro. As security for the pieces of jewelry which were placed in the
possession of Norma Gamaro and her daughter Rowena Gamaro, the two would issue several
checks drawn from their joint bank account in favor of Fineza reflecting the appraised amount of the
pieces of jewelry.6

The business venture was initially successful. However, when Fineza discovered that Norma
Gamaro, together with her daughters Rowena Gamaro and Umali, also engaged in a similar
business with other suppliers of pieces of jewelry, she decided to terminate the business. To wind up
the business, it was agreed that Norma Gamaro and Rowena Gamaro would just dispose or sell the
remaining pieces of jewelry in their possession. But when Fineza tried to encash the checks which
were issued to her by Rowena Gamaro, the same were dishonored because the account of the
Gamaros had been closed. Fineza then confronted petitioner Norma Gamaro about the dishonored
checks, and the latter confessed that she did not have enough money to cover the amount of the
checks. Fineza also learned that the pieces of jewelry were pawned to several pawnshops and
private individuals contrary to what they had agreed upon. Petitioner Norma Gamaro furnished
Fineza with a list of the pawnshops, such that, the latter was compelled to redeem the pieces of
jewelry with her own money. It appeared in the pawnshop tickets that it was the nephew of Norma
Gamaro named Frederick San Diego who pledged the pieces of jewelry.7

To settle the matter, Fineza asked Norma Gamaro to return the remaining pieces of jewelry in her
possession but the latter failed to do so, and instead, offered her house and lot as payment for the
pieces of jewelry. Fineza, however, did not accept the said offer.8

A demand letter was then sent by Fineza to Umali, Norma Gamaro and Rowena Gamaro, dated
February 16, 2004, asking for the return of the amount of ₱2,292,519.00 as payment for all the
pieces of jewelry which were not returned to her, including the cash given by Fineza for the
rediscounting business. The demand letter was left unanswered.9

For her part, Norma Gamaro, averred that she had no involvement in the jewelry business of her
daughters. Umali likewise denied having any business dealings with her sister Rowena Gamaro and
with Fineza. While admitting that there were pieces of jewelry pledged by her cousin, Frederick San
Diego, in the pawnshop where she was the manager, Umali denied that she knew where those
pieces of jewelry came from.10

On July 25, 2011, the RTC issued a Decision, the dispositive portion of which reads:

WHEREFORE, premises considered, this court hereby renders judgment, as follows:

a. FINDING accused Norma Gamaro guilty beyond reasonable doubt of the crime of estafa as
defined and penalized under Section 1 (b), Article 315 of the Revised Penal Code, and hereby
sentences her to suffer the indeterminate prison term of Four (4) Years and Two (2) Months
of Prision Correccional, as Minimum, to Twenty (20) Years of Reclusion Temporal, as Maximum;

b. EXONERATING accused Josephine G. Umali of any criminal liability;

c. DIRECTING both accused Norma Gamaro and Josephine Umali to pay the private complainant
jointly and solidarily the following amounts:

1. ₱1,259,841.46, plus legal interest from date of demand on February 16, 2004, until fully paid;
2. ₱50,000.00 for and by way of moral damages;

3. ₱25,000.00, for and by way of exemplary damages;

4. ₱50,000.00, for and by way of attorney's fees; and

5. To pay the costs.

Let a warrant issue for the arrest of Rowena Gamaro. The Bureau of Immigration is likewise
directed to issue a HOLD DEPARTURE ORDER against ROWENA GAMARO, her personal
circumstances are as follows:

Name: ROWENA C. GAMARO

Former Residence: Lot 20, Block 16, National Housing Authority (NHA), Brgy. San Jose, San Pablo
City

SO ORDERED.11

Aggrieved, petitioners filed an appeal before the CA. In a Decision dated November 25, 2013, the
CA affirmed the Decision of the RTC. The fallo of the Decision states:

WHEREFORE, the instant appeal is DENIED. The assailed Decision dated July 25, 2011 of the
Regional Trial Court, Branch 32, San Pablo City, in Criminal Case No. 15407 is hereby AFFIRMED.

SO ORDERED.12

A motion for reconsideration was filed by the petitioners, but the same was denied by the CA on
February 21, 2014.

Hence, this petition, raising the following errors:

A) THE CA COMMITTED AN ERROR OF LAW AND GRAVE ABUSE OF DISCRETION IN

AFFIRMING THE RTC DECISION FINDING NORMA GAMARO GUILTY OF THE CRIME OF
ESTAFA UNDER SECTION l(B), ARTICLE 315 OF THE REVISED PENAL CODE DESPITE THE
INFORMATION ACCUSING HER OF THE CRIME OF ESTAFA UNDER PARAGRAPH 2(A)
ARTICLE 315 OF THE REVISED PENAL CODE IN GRAVE VIOLATION OF THE PETITIONER'S
CONSTITUTIONAL RIGHT TO BE INFORMED OF THE CHARGE AGAINST HER;

B) THE CA COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN

EXCESS OF JURISDICTION WHEN IT SUSTAINED THE FINDINGS OF THE RTC DESPITE THE
FACT THAT IT (RTC) RELIED ON THE FINDINGS ON THE PROCEEDINGS IN THE
ADMINISTRATIVE CASE WITH SSS AGAINST NORMA GAMARO;

C) THE CA COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN

EXCESS OF JURISDICTION WHEN IT SUSTAINED THE FINDINGS OF THE RTC DESPITE THE
FACT THAT IT (RTC) CONSIDERED THE TESTIMONY OF PROSECUTION WITNESS ATTY.
BALDEO DESPITE CONFLICT OF INTEREST IN THAT SHE (ATTY. BALDEO) GAVE NORMA
GAMARO ADVISE REGARDING HER CASE; AND
D) THE CA COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN
EXCESS OF JURISDICTION WHEN IT UPHELD THE FINDINGS OF FACT OF THE RTC THAT
NORMA GAMARO RECEIVED THE SUBJECT JEWELRIES DESPITE THE INCOMPETENT AND
CONTRADICTORY EVIDENCE OF THE PROSECUTION ITSELF.13

The first issue for resolution is whether a conviction for the crime of Estafa under a different
paragraph from the one charged is legally permissible.

The Bill of Rights of the 1987 Constitution guarantees some rights to every person accused of a
crime, among them the right to be informed of the nature and cause of the accusation, viz.:

Section 14. (1) No person shall be held to answer for a criminal offense without due process
of law.

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to
meet the witnesses face to face, and to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf However, after arraignment, trial may
proceed notwithstanding the absence of the accused provided that he has been duly notified and his
failure to appear is unjustifiable.14

The constitutional provision requiring the accused to be "informed of the nature and cause of the
accusation against him" is for him to adequately and responsively prepare his defense. The
prosecutor is not required, however, to be absolutely accurate in designating the offense by its
formal name in the law. It is hornbook doctrine that what determines the real nature and cause of the
accusation against an accused is the actual recital of facts stated in the information or complaint and
not the caption or preamble of the information or complaint nor the specification of the provision of
law alleged to have been violated, they being conclusions of law.15

The controlling words of the information are found in its body. Accordingly, the Court explained the
doctrine in Flores v. Hon. Layosa16as follows:

The Revised Rules of Criminal Procedure provides that an information shall be deemed sufficient if it
states, among others, the designation of the offense given by the statute and the acts of omissions
complained of as constituting the offense. However, the Court has clarified in several cases that the
designation of the offense, by making reference to the section or subsection of the statute punishing,
it [sic] is not controlling; what actually determines the nature and character of the crime charged
are the facts alleged in the information. The Court's ruling in US. v. Lim San is instructive:

x x x Notwithstanding the apparent contradiction between caption and body, we believe that we
ought to say and hold that the characterization of the crime by the fiscal in the caption of the
information is immaterial and purposeless, and that the facts stated in the body of the pleading must
determine the crime of which the defendant stands charged and for which he must be tried. The
establishment of this doctrine is permitted by the Code of Criminal Procedure, and is thoroughly in
accord with common sense and with the requirements of plain justice x x x.17

In the instant case, the crime of estafa charged against petitioners is defined and penalized by
Article 315, paragraph 2 (a) of the Revised Penal Code, viz.:

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

2nd. The penalty of prision correccional in its minimum and medium periods, if the amount of the
fraud is over 6,000 pesos but does not exceed 12,000 pesos;

3rd. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period
if such amount is over 200 pesos but does not exceed 6,000 pesos; and

4th. By arresto mayor in its maximum period, if such amount does not exceed 200 pesos, provided
that in the four cases mentioned, the fraud be committed by any of the following means:

x x xx

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

(a) By using fictitious name, or falsely pretending to possess power, influence, qualifications,
property, credit, agency, business or imaginary transactions, or by means of other similar
deceits.18

The elements of the said crime are as follows: (1) there must be a false pretense, fraudulent acts or
fraudulent means; (2) such false pretense, fraudulent act or fraudulent means must be made or
executed prior to or simultaneously with the commission of the fraud; (3) the offended party must
have relied on the false pretense, fraudulent act or fraudulent means and was thus induced to part
with his money or property; and (4) as a result thereof, the offended party suffered damage.19

However, the crime petitioner Norma Gamaro was convicted of is estafa under Article 315,
paragraph l(b) of the Revised Penal Code:

Article 315. Swindling (estafa).

x x x x the fraud be committed by any of the following means:

1. With unfaithfulness or abuse of confidence, namely:

x x xx

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any

other personal property received by the offender in trust or on commission, or for
administration, or under any other obligation involving the duty to make delivery of or to
return the same, even though such obligation be totally or partially guaranteed by a bond; or
by denying having received such money, goods, or other property.

x x x20
The elements of estafa under Article 315, paragraph 1 (b) are as follows: (1) that money, goods, or
other personal properties are received by the offender in trust, or on commission, or for
administration, or under any other obligation involving the duty to make delivery of, or to return, the
same; (2) that there is a misappropriation or conversion of such money or property by the offender or
a denial of the receipt thereof; (3) that the misappropriation or conversion or denial is to the prejudice
of another; and (4) that there is a demand made by the offended party on the offender.21

The question then is whether the facts in the Information do indeed constitute the crime of which
petitioner Norma Gamaro was convicted. In other words, was the RTC correct in convicting her of
estafa under Article 315, paragraph l(b) instead of paragraph 2(a)?

What is of vital importance to determine is whether or not petitioner Norma Gamaro was convicted of
a crime charged in the Information as embraced within the allegations contained therein. A reading
of the Information yields an affirmative answer. The Information filed sufficiently charges estafa
through misappropriation or conversion. Fineza entrusted petitioner Norma Gamaro with the pieces
of jewelry amounting to ₱2,292,5l 9.00 on the condition that the same will be sold for profit.
Petitioner Nonna Gamaro was under obligation to turn over the proceeds of the sale to Fineza.
However, instead of complying with the obligation, she pawned the pieces of jewelry to M. Lhuillier
Pawnshop where petitioner Umali worked as Branch Manager and kept the proceeds thereof to the
damage and prejudice of Fineza.

Paragraph 1 (b) provides liability for estafa committed by misappropriating or converting to the
prejudice of another money, goods, or any other personal property received by the offender in trust
or on commission, or for administration, or under any other obligation involving the duty to make
delivery of or to return the same, even though that obligation be totally or partially guaranteed by a
bond; or by denying having received such money, goods, or other property. This, at least, is very
clearly shown by the factual allegations of the Information.22

There is, therefore, no ambiguity in the Information. The factual allegations therein sufficiently inform
petitioners of the acts constituting their purported offense and satisfactorily allege the elements of
estafa by misappropriation. Petitioners are fully apprised of the charge against them and for them to
suitably prepare their defense. Therefore, petitioner Norma Gamaro was not deprived of any
constitutional right. She was sufficiently apprised of the facts that pertained to the charge and
conviction for estafa, because the RTC has the discretion to read the Information in the context of
the facts alleged. In the case of Flores v. Hon. Layosa,23 We explained the rationale behind this
discretion in this manner:

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
merits. Whatever its purpose may be, its result is to enable the accused to vex the court and
embarrass the administration of justice by setting up the technical defense that the crime set forth in
the body of the information and proved in the trial is not the crime characterized by the fiscal in the
caption of the information. That to 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 forth. If he
did, it is of no consequence to him, either as a matter of procedure or of substantive right, how the
law denominates the crime which those acts constitute. The designation of the crime by name in the
caption of the information from the facts alleged in the body of that pleading is a conclusion of law
made by the fiscal. In the designation of the crime the accused never has a real interest until the trial
has ended. For his full and complete defense he need not know the name of the crime at all. It is of
no consequence whatever for the protection of his substantial rights ... If he performed the acts
alleged, in the manner, stated, the law determines what the name of the crime is and fixes the
penalty therefore. It is the province of the court alone to say what the crime is or what it is
named x x x. 24

Also, the prosecution was able to prove the crime of estafa under paragraph 1 (b). As held by the
CA, Fineza positively and categorically testified on the transaction that transpired between her and
petitioners and accused Rowena Gamaro. The failure to account upon demand, for funds or property
held in trust, is circumstantial evidence of misappropriation. As mentioned, petitioner Norma Gamaro
failed to account for, upon demand, the jewelry which was received by her in trust. This already
constitutes circumstantial evidence of misappropriation or conversion to petitioner's own personal
use. The failure to return upon demand the properties which one has the duty to return is tantamount
to appropriating the same for his own personal use.25 As in fact, in this case, Fineza, herself
redeemed the pieces of jewelry using her own money.

The essence of this kind of estafa is the appropriation or conversion of money or property received
to the prejudice of the entity to whom a return should be made. The words convert and
misappropriate connote the act of using or disposing of another's property as if it were one's own, or
of devoting it to a purpose or use different from that agreed upon. To misappropriate for one's own
use includes not only conversion to one's personal advantage, but also every attempt to dispose of
the property of another without right. In proving the element of conversion or misappropriation, a
legal presumption of misappropriation arises when the accused fails to deliver the proceeds of the
sale or to return the items to be sold and fails to give an account of their whereabouts.26

Thus, petitioners having been adequately informed of the nature and cause of the accusation
against them, petitioner Norma Gamaro could be convicted of the said offense, the same having
been proved.

Furthermore, We are not persuaded by the argument raised by petitioners that the testimony of
prosecution witness Atty. Baldeo violated the rule on "privileged communication between attorney
and client" for the reason that Atty. Baldeo allegedly gave petitioner Norma Gamaro "advise"
regarding her case.

The factors essential to establish the existence of the privilege are:

(1) There exists an attorney-client relationship, or a prospective attorney-client relationship, and it is

by reason of this relationship that the client made the communication;

(2) The client made the communication in confidence;

(3) The legal advice must be sought from the attorney in his professional capacity.27

The mere relation of attorney and client does not raise a presumption of confidentiality. The client
must intend the communication to be confidential. A confidential communication refers to information
transmitted by voluntary act of disclosure between attorney and client in confidence and by means
which, so far as the client is aware, discloses the information to no third person other than one
reasonably necessary for the transmission of the information or the accomplishment of the purpose
for which it was given. The communication made by a client to his attorney must not be intended for
mere information, but for the purpose of seeking legal advice from his attorney as to his rights or
obligations. The communication must have been transmitted by a client to his attorney for the
purpose of seeking legal advice.28
Applying the rules to the case at bar, We hold that the evidence on record fails to substantiate
petitioner's allegation. The testimony of Atty. Baldeo consisted merely of observations that petitioner
Norma Gamaro was indeed engaged in the business of selling jewelry supplied by private
complainant Fineza. We note that the testimony is merely corroborative to the testimony of private
complainant Fineza. Atty. Baldeo is an officemate of petitioner Norma Gamaro. Atty. Baldeo testified
primarily on the fact that she personally saw petitioner Gamaro, on several occasions, showing the
jewelry for sale to their officemates. As in fact, Atty. Baldeo was offered to buy the pieces of jewelry
on some instances, and she was told by petitioner Norma Gamaro that the pieces of jewelry came
from Fineza.29

The aforesaid testimony of Atty. Baldeo was considered by the RTC to dispute the defense of
petitioner Norma Gamaro that she had no involvement in the jewelry business of her daughters:

Thus, based on the testimony of Atty. Baldeo in this case and in the aforementioned administrative
case, accused Norma Gamaro's defense of denial of her participation in the business transaction
involving the sale of jewelry supplied by private complainant, fall flat on its face.30

Lastly, the argument of petitioner Norma Gamaro that the RTC erred in finding that she was the one
who received the pieces of jewelry is a finding of fact. It is a well-entrenched doctrine that factual
findings of the trial court, especially when affirmed by the appellate court, are accorded the highest
degree of respect and are considered conclusive between the parties. Though jurisprudence
recognizes highly meritorious exceptions, none of them obtain herein which would warrant a reversal
of the challenged Decision.31

We stick to the findings of fact of the RTC which was sustained by the CA that petitioner Norma
Gamaro received some pieces of jewelry from Fineza, and accused Rowena Gamaro pawned the
jewelry entrusted to them by Fineza which is a clear act of misappropriation, thus:

x x x x. The attempt of the defense to exculpate Norma and Josephine through the testimony of
Frederick San Diego is understandable. The argument, however, that it was Frederick San Diego,
1âwphi1

upon instructions of RowenaGamaro who pledged the jewelry, without the knowledge of Norma or
Josephine is unavailing. The records show that Frederick San Diego is not only a mere nephew of
Norma, and cousin to Rowena and Josephine, but also the messenger and collector of Rowena,
who had knowledge of the fact that Rowena's partner was the private complainant, Frederick San
Diego also knew that the private complainant went to the house of Norma asking the missing
jewelry.

As earlier stressed, some of the jewelry were delivered by the private complainant to Norma
Gamaro, not Rowena Gamaro. Yet the defense admits that Frederick San Diego pledged the same
pieces of jewelry to M. Lhuillier Pawnshop, Cebuana Lhuillier, and the owner of Collette's upon
instructions of Rowena Gamaro. Clearly then, Norma turned over the said jewelry to Rowena with
knowledge that they will be pledged to the pawnshops and to the owner of Collette's. To hold
otherwise would run counter to human nature and experience.32

It must be stressed that the prosecution offered in evidence the eighteen (18) index cards given by
accused Rowena Gamaro to Fineza stating the pieces of jewelries that were given to them by
Fineza, with the corresponding appraised values. The due dates of the checks issued in favor of
Fineza (Exhibits "F" to "F-7"and "F-11""F-27") were also indicated on the index cards.33 The pieces of
jewelry were pawned to various pawnshops and individuals, instead of offering them for sale. Hence,
petitioner Norma Gamaro failed to return the jewelry to the damage and prejudice of Fineza. She
even offered her house and lot to Fineza as payment for the jewelry.
We agree with the findings of the RTC and the CA that petitioner Norma Gamaro was guilty beyond
reasonable doubt of estafa. The CA ruled that the prosecution's evidence showed that Fineza
entrusted the possession of the jewelry to petitioner. The CA observed that the prosecution duly
proved petitioner's misappropriation by showing that she failed to return the diamond ring upon
demand. That misappropriation took place was strengthened when petitioner Norma Gamaro
informed Fineza that they pawned the jewelry, an act that ran counter to the terms of their business
agreement.

Likewise, as to the civil liability of Umali despite her acquittal, We note the declaration of the RTC
that Umali had knowledge as to who owned the jewelry pledged with M. Lhuiller Pawnshop. The
RTC further pointed out that Umali was part of the business transaction between Norma Gamaro
and Rowena Gamaro with Fineza, as she too signed the Joint Solidary Account Agreement with
Banco Filipino to enable them to open a checking account. It was against this account that Norma
and Rowena Gamaro drew the checks that they issued to guarantee the share of Fineza from the
proceeds of the sale of the pieces of jewelry. These findings support the conclusion of the CA that
Umali's acquittal was based on reasonable doubt. Hence, Umali's civil liability was not extinguished
by her discharge.34 We, therefore, concur with the findings of the CA:

On the other hand, We likewise find appellant Umali civilly liable to private complainant Fineza. As
may be recalled, appellant Umali was exonerated from the crime of estafa. Notwithstanding, she is
not entirely free from any liability towards private complainant Fineza. It has been held that an
acquittal based on reasonable doubt that the accused committed the crime charged does not
necessarily exempt her from civil liability where a mere preponderance of evidence is
required.35 There is no question that the evidence adduced by the prosecution is preponderant
enough to sustain appellant Umali's civil liability. Accordingly, We agree with the court a
quo’s ratiocination in this wise:

"What militates against the posture of Josephine is the admission by Frederick that it was Rowena
Gamaro who instructed him to pledge the jewelry to M. Lhuiller Pawnshop. If this were true, then,
with more reason Josephine had knowledge as to who owns the jewelry. It may well be pointed out,
as earlier stated, that Josephine is part of the business transaction between Norma and Rowena
with the private complainant, as she too signed the Joint Solidary Account Agreement with Banco
Filipino purposely to enable them to open a checking account, and it was against this account that
Norma and Rowena drew the checks that they issued to guarantee the share of Joan from the
proceeds of the sale of the jewelry. It follows then that Josephine also knows beforehand who owns
the jewelry pledged with her (sic) M. Lhuillier Pawnshop Branch. x x x"

With the foregoing premises considered, We sustain the court a quo’s ruling that herein appellants
be held jointly and solidarily liable to herein private complainant Fineza. Thus, there is no cogent
reason to depart from the ruling of the court a quo.36

There is no reason for this Court to review the findings when both the appellate and the trial courts
agree on the facts.37 We, therefore, adopt the factual findings of the lower courts in totality, bearing in
mind the credence lent to their appreciation of the evidence.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated November 25,
2013, and its Resolution dated February 21, 2014 in CA-G.R. CR No. 34454 are AFFIRMED.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
G.R. No. 224900

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs
NESTOR M. BUGARIN, Accused-Appellant

DECISION

PERALTA, J.:

This case seeks to reverse and set aside the Decision1 dated July 31, 2015 of the Court of Appeals
(CA) in CA-G.R. CEB-CR-HC No. 01530. The CA affirmed and modified the Joint Judgment2 of the
Regional Trial Court (RTC) of Cebu City, Branch 12, dated July 5, 2012 in Criminal Case Nos. CBU-
83610, CBU-83611, and CBU-83613, which found accused-appellant Nestor Bugarin y Martinez
guilty beyond reasonable doubt of the crimes of double murder and attempted murder.

Informations were filed charging Bugarin with two (2) counts of murder and one (1) count of
attempted murder, which read:

Criminal Case No. CBU-83610

For: Murder

That on the 30th day of May 2008 at about 8:50 o'clock in the evening, in the City of Cebu,
Philippines and within the jurisdiction of this Honorable Court, the said accused, armed with an
unlicensed firearm of undetermined caliber, with deliberate intent, with intent to kill, with treachery
and evident premeditation, did then and there suddenly and unexpectedly attack, assault and use
personal violence upon one ESMERALDO B. PONTANAR by shooting him repeatedly with the use
of said firearm and hitting him on the different parts of his body as a consequence of which said
ESMERALDO B. PONTANAR died [a] few minutes thereafter due to "HYPOVOLEMIC SHOCK
SECONDARY TO MULTIPLE GUNSHOT WOUNDS."

CONTRARY TO LAW.

Criminal Case No. CBU-83611

For: Murder

That on the 30th day of May 2008 at about 8:50 o'clock in the evening, in the City of Cebu,
Philippines and within the jurisdiction of this Honorable Court, the said accused, armed with an
unlicensed firearm of undetermined caliber, after having just shot one Esmeraldo B. Pontanar with
the use of said firearm for which the accused is also being separately charged with Murder, with
deliberate intent, with intent to kill, with treachery and evident premeditation, and without regard to
rank and age of victim did then and there suddenly and unexpectedly attack, assault and use
personal violence upon one CRISTITO C. PONTANAR, a 72-year old father-in-law of the accused,
by shooting him with the use of said firearm when the latter came to the rescue of his said son,
Esmeraldo B. Pontanar, by pleading to the accused to stop the shooting, thereby hitting him on the
abdomen as a consequence of which said CRIS TITO C. PONT ANAR died [a] few minutes
thereafter due to "HEMORRHAGIC SHOCK SECONDARY TO GUNSHOT WOUND."

CONTRARY TO LAW.
Criminal Case No. CBU-83613

For: Attempted Murder

That on the 30th day of May 2008 at about 8:50 o'clock in the evening, in the City of Cebu,
Philippines and within the jurisdiction of this Honorable Court, the said accused, armed with an
unlicensed firearm of undetermined caliber, after having just shot one Esmeraldo B. Pontanar with
the use of said firearm for which the accused is also being separately charged with murder and
frustrated murder, with deliberate intent, with intent to kill, with treachery and evident premeditation,
did then and there suddenly and unexpectedly attack, assault and use personal violence upon one
Maria Glen Neis Pontanar by shooting her, thereby inflicting upon her the following injuries:

"THROUGH & THROUGH GUNSHOT WOUND DISTAL THIRD, LEFT THIGH thus, commencing
the commission of the felony directly by overt acts but which nevertheless did not perform all the
acts of execution which would have produced the crime of murder by reason of some cause or
accident other than his own spontaneous desistance, that is, by the timely act of said Maria Glen
Neis Pontanar in running away and taking shelter inside a nearby house.

CONTRARY TO LAW.3

Upon arraignment, Bugarin pleaded not guilty to the charges. He admitted having shot Esmeraldo,
Cristito, and Maria Glen, all surnamed Pontanar, but insisted that he acted in self-defense. Hence,
pursuant to Section 11 (e), Rule 119 of the Rules of Court, a reverse trial ensued.

The factual and procedural antecedents of the case are as follows:

Bugarin contended that what he had done was merely an act of selfdefense. At the time of the
incident, he was watching television at home when his wife, Anecita went out to walk their dogs.
Then he heard her having an altercation with Maria Glen. At first, he did not want to intervene but
then he saw his brother-in-law and Maria Glen's husband, Esmeraldo, approaching and carrying a 9
mm pistol, a .45 caliber gun, and an M16 rifle. Then Esmeraldo started shouting in front of their
house, challenging him to go out. Bugarin hesitated to go out at first since Esmeraldo could easily
shoot him with his firearms. He changed his mind when his son convinced him to go out and help his
mother. So Bugarin went out and shouted angrily at Esmeraldo, then the latter began to draw his
gun. This prompted Bugarin to draw his own gun and shoot Esmeraldo twice. Esmeraldo was thrown
backwards and when he was about to fall to the ground, Bugarin shot him one more time.
Thereafter, his father-in-law, Cristito, came rushing towards his son. He confronted Bugarin and tried
to slap him, but he was able to avoid getting hit. Cristito then looked at his son's body on the ground.
Believing that Cristito would get his son's firearm and shoot him, Bugarin acted quickly and shot him
first. Then Esmeraldo's son, Paulo, threw stones at Bugarin. This angered him so he likewise shot
him. Thereafter, he saw Maria Glen with a pipe, who was about to strike Anecita with it, so he also
shot her, hitting her in the leg.

On the other hand, the prosecution alleged that the Pontanars and the Bugarins had been harboring
ill-feelings towards each other. On the evening of May 30, 2008, the spouses Esmeraldo and Maria
Glen were on their way to the house of their father, Cristito, which was likewise near the house of the
Bugarins. When they were close to the house of the Bugarins, Esmeraldo's sister, Anecita, then
started throwing gravel and sand at them. Esmeraldo asked her to stop but she refused to listen.
Thereafter, Bugarin, Anecita' s husband, came out of their house and suddenly shot Esmeraldo
several times. Esmeraldo sustained two (2) gunshot wounds in the back and one (1) in his left side,
which later took his life. Maria Glen immediately ran and hid behind a parked car to save herself.
She then saw her father-in-law, Cristito, running out of his house towards Esmeraldo's direction.
Cristito raised his hands and begged Bugarin to stop shooting. But Bugarin also shot him, causing
his death. Bugarin then looked for Maria Glen and when he finally found her, he also shot her.
Fortunately, Maria Glen was only hit in her thigh.

On July 5, 2012, the RTC of Cebu City found Bugarin guilty beyond reasonable doubt of double
murder and attempted murder in Criminal Case

Nos. CBU-83610, CBU-83611, and CBU-83613, with the special aggravating circumstance of the
use of unlicensed firearm in all three (3) cases, thus:

WHEREFORE, judgment is hereby rendered as follows:

1. In Criminal Case No. CBU-83610, the court finds the accused NESTOR MARTINEZ BUGARIN
guilty beyond reasonable doubt of the offense of Murder defined and penalized under Art. 248 of the
Revised Penal Code as amended by Sec. 6 of Republic Act 7659 as charged in the Information, and
hereby sentences him to suffer the penalty of Reclusion Perpetua; to indemnify the heirs of the
deceased Esmeraldo B. Pontanar the sum of ₱75,000.00 as civil indemnity for his death and
₱50,000.00 as Moral Damages for the pain and anguish suffered by the heirs as a result of his
death; Exemplary damages in the amount of ₱25,000.00 and actual damages in the total sum of
₱245,490.00, all indemnifications are without subsidiary imprisonment in case of insolvency.

2. In Criminal Case No. CBU-83611, the court finds the accused NESTOR MARTINEZ
BUGARIN guilty beyond reasonable doubt of the offense of Murder defined and penalized under Art.
248 of the Revised Penal Code as amended by Sec. 6 of Republic Act 7659 as charged in the
Information, and hereby sentences him to suffer the penalty of Reclusion Perpetua; to indemnify the
heirs of the deceased Cristito C. Pontanar the sum of ₱75,000.00 as civil indemnity for his death and
₱50,000.00 as Moral Damages for the pain and anguish suffered by the heirs as a result of his
death, all indemnifications are without subsidiary imprisonment in case of insolvency.

3. In Criminal Case No. CBU-83613, the court finds the accused NESTOR MARTINEZ BUGARIN
guilty beyond reasonable doubt of the offense of Attempted Murder as charged in the Information,
and hereby sentences him to suffer the penalty of imprisonment of an indeterminate sentence
ranging from six (6) years prision correccional as minimum to twelve (12) years of prision mayor as
maximum to indemnify the offended party Maria Glen Neis Pontanar the amount of ₱l0,000.00 as

Moral damages; and actual damages in the amount of ₱30,909.48, all indemnifications are without
subsidiary imprisonment in case of insolvency.

In the service of his sentence, accused, who is a detention prisoner, shall be credited with the entire
period during which he has undergone preventive imprisonment.

No costs.

SO ORDERED.4

This prompted Bugarin to appeal before the CA. On July 31, 2015, the CA denied Bugarin's appeal
and affirmed the RTC Decision with modifications, thus:

WHEREFORE, the instant appeal is DENIED. The assailed Joint Judgment dated July 5, 2012 of the
Regional Trial Court of Cebu City, Branch 12 is hereby AFFIRMED with MODIFICATION as follows:
1. In Criminal Case No. CBU-83610, the guilt of Nestor M. Bugarin for the crime of murder and the
corresponding penalty imposed upon him are AFFIRMED. The grant of civil indemnity, actual
damages, and moral damages, in the amount determined by the trial court, is AFFIRMED. The
award of exemplary damages is INCREASED to ₱30.000.00.

2. In Criminal Case No. CBU-83611, Nestor M. Bugarin is found GUILTY of HOMICIDE and
accordingly imposed an indeterminate penalty often (10) years and one (1) day of prision mayor as
minimum to twenty (20) years of reclusion temporal as maximum. Bugarin is ORDERED to pay the
heirs of Cristito the amount of ₱50,000.00 as civil indemnity; ₱50,000.00 as moral damages; and
₱30,000.00 as exemplary damages.

3. In Criminal Case No. CBU-83613, Nestor M. Bugarin is found GUILTY of ATTEMPTED

HOMICIDE and accordingly imposed an indeterminate penalty of six (6) months of arresto mayor as
minimum to six (6) years of prision correccional as maximum. The awards for actual damages and
moral damages as imposed by the trial court AFFIRMED.

4. The aggregate amount of the monetary awards awarded herein shall earn interest at the rate of
six percent (6%) per annum from the finality of this Decision until the same is fully paid.

SO ORDERED.5

Bugarin is now before the Court, maintaining his innocence in all the instant cases.

The appeal is bereft of merit.

Self-defense is an affirmative allegation and offers exculpation from liability for crimes only if
satisfactorily proved.6Having admitted the shooting of the victims, the burden shifted to Bugarin to
prove that he indeed acted in self-defense by establishing the following with clear and convincing
evidence: (1) unlawful aggression on the part of the victims; (2) reasonable necessity of the means
employed to prevent or repel the aggression; and (3) lack of sufficient provocation on his
part.7 Bugarin, however, miserably failed to discharge this burden. One who admits killing or fatally
injuring another in the name of self-defense bears the burden of proving the aforementioned
elements. While all three elements must concur, self-defense relies first and foremost on proof of
unlawful aggression on the part of the victim. If no unlawful aggression is proved, no self-defense
may be successfully pleaded.8 Contrary to his claims, the evidence of the case shows that there was
no unlawful aggression on the part of the victims. His version of the events was found to be less
credible by the trial court. His testimony is incoherent, incredible, and specious. On the other hand,
the trial court found Maria Glen's testimony to be more convincing. As the lone surviving victim, she
affirmed that Bugarin suddenly fired at them, without any provocation on their part. As a rule, the
appellate courts must give full weight and respect to the determination by the trial court on the
credibility of witnesses, since the trial judge has the best opportunity to observe their demeanor.
While it is true that this rule admits of certain exceptions, none of such are extant in this case.9

Self-defense cannot be justifiably appreciated when it is extremely doubtful by itself. Indeed, in

invoking self-defense, the burden of evidence is shifted and the accused claiming self-defense must
rely on the strength of his own evidence and not on the weakness of the prosecution.10 In the case at
bar, Bugarin likewise failed to sufficiently establish that Esmeralda was actually carrying three (3)
firearms and that he attempted to pull out one of his guns to shoot him. However, when asked what
happened to the other firearms or where they went when Esmeraldo pulled out one of the guns,
Bugarin answered that he did not know. Also, Anecita herself testified that she did not see
Esmeraldo carrying anything. He merely held the railings of their gate when Bugarin went out of their
house and shot him. Indeed, nothing in this act would reveal that there was unlawful aggression on
Esmeraldo' s part. Maria Glen also never actually struck or attempted to strike Anecita with the steel
pipe. Neither can Cristito's alleged act of trying to slap Bugarin and thereafter staring at the wounded
body of his son on the ground be considered unlawful aggression that he must necessarily repel.
Bugarin simply assumed and imagined that Cristito would get his son's gun to shoot him.

Murder is committed by any person who, not falling within the provisions of Article 246, shall kill
another with treachery, taking advantage of superior strength, with the aid of armed men, or
employing means to weaken the defense or of means or persons to insure or afford impunity.11 There
is treachery when the offender commits any of the crimes against persons, employing means,
methods or forms which tend directly and specially to ensure its execution, without risk to himself
arising from the defense which the offended party might make. Treachery is not presumed but must
be proved as conclusively as the crime itself.12 Bugarin suddenly fired at Esmeraldo without reason
or warning. According to the medical report, Esmeraldo' s wounds would establish that he was shot
in the back twice and also in his left side, giving him no means of retaliation or escape, and without
any risk to Bugarin. In fact, Bugarin himself said that when Esmeraldo was thrown backwards and
was about to fall to the ground, he shot him again to make sure he was "finished."13 A finding of the
existence of treachery should be based on clear and convincing evidence. Such evidence must be
as conclusive as the fact of killing itself and its existence cannot be presumed.14 In the absence of
proof beyond reasonable doubt that treachery attended the killing of the victim, the crime is
homicide, not murder.15

As to the shooting of Cristito and Maria Glen, however, the Court has arrived at the conclusion that
the trial court was correct in appreciating treachery as a qualifying circumstance. While the CA found
Bugarin guilty for the lesser crimes of homicide and attempted homicide, respectively, the Court is
constrained to review the entire records of the case pursuant to the well-settled rule that when an
accused appeals from the sentence of the trial court, he waives his constitutional safeguard against
double jeopardy and throws the entire case open to the review of the appellate court, which is then
called upon to render such judgment as the law and justice dictate, whether favorable or unfavorable
to him.16 The essence of treachery is the sudden and unexpected attack by the aggressor on the
unsuspecting victims, depriving the latter of any real chance to defend themselves, thereby ensuring
its commission without risk to the aggressor, and without the slightest provocation on the part of the
victims.17

Here, Bugarin' s attack on Cristito was sudden and unexpected. The alleged provocation on
Cristito's part was uncorroborated and not proven. While Bugarin claims that Cristito attempted to
1âwphi1

slap him, Anecita testified that she did not see this as she was already inside their house when
Bugarin shot her father. The trial court gave more credence to Maria Glen's narration that Cristito
was raising his hands and pleading for Bugarin to stop when the latter shot him at close range. More
importantly, Bugarin himself stated that when he shot Cristito in the chest, the latter was looking
down at the dead body of his son sprawled on the ground. He shot him "dahil konsintidor, hindi
marunong makisama, magsama na silang mag-ama, because he is siding (sic) his son,"18 clearly
manifesting that he knowingly chose his mode of attack and intended it to accomplish his wicked
intent of likewise killing the father rather than a mere impulsive reaction to a surprising turn of
events. In order for the qualifying circumstance of treachery to be appreciated, the following
requisites must be shown: (1) the employment of means, method, or manner of execution would
ensure the safety of the malefactor from the defensive or retaliatory acts of the victim, no opportunity
being given to the latter to defend himself or to retaliate, and (2) the means, method, or manner of
execution was deliberately or consciously adopted by the offender. The qualifying circumstance of
treachery or alevosia does not even require that the perpetrator attack his victim from behind. Even
a frontal attack could be treacherous when unexpected and on an unarmed victim who would be in
no position to repel the attack or avoid it. The essence of treachery is that the attack comes without
a warning and in a swift, deliberate, and unexpected manner, affording the hapless, unarmed, and
unsuspecting victim no chance to resist or escape the sudden blow. Indubitably, Cristito was
unarmed and had no inkling that an attack was forthcoming. He neither had a chance to mount a
defense. In such a rapid motion, Bugarin shot Cristito, affording the latter no opportunity to defend
himself or fight back. The deliberate swiftness of Bugarin's attack significantly diminished the risk to
himself that may be caused by the retaliation of the victim.19 The evidence sufficiently established
that Bugarin deliberately and consciously adopted the means of executing the crime against his
defenseless 72-year-old father-in-law.

Lastly, with respect to Maria Glen, it is true that after having seen what Bugarin had done to her
husband and father-in-law, she was already forewarned of the danger to her life. She actually
managed to flee and hide after she was shot. While such ability to avoid greater harm by running
away may be an indicator that no treachery exists,20treachery may still be appreciated where the
victim was unarmed, defenseless, and unable to flee at the time of the infliction of the coup de
grace,21 as in this case. Bugarin already commenced his attack with a manifest intent to kill Maria
Glen but failed to perform all the acts of execution by reason of causes independent of his
will, i.e., poor aim. Maria Glen was likewise not in any position to defend herself or repel the attack
since she was unarmed. Thus, the trial court aptly appreciated treachery as a circumstance to
qualify the crimes to murder and attempted murder.

With respect to the penalties in Criminal Case Nos. CBU-83610 and CBU-83611, the Court upholds
the ones that the RTC imposed, but modifies the amount of damages according to the most recent
jurisprudence.22 Bugarin admitted that he used an unlicensed .45 caliber gun in shooting the victims.
Presidential Decree No. 1866,23 as amended by Republic Act (R.A.) No. 8294, treats the
unauthorized use of a licensed firearm in the commission of the crimes of homicide or murder as a
special aggravating circumstance. Thus, the same cannot be offset by an ordinary mitigating
circumstance24 such as voluntary surrender, as in the instant case. In both Criminal Case Nos. CBU-
83610 and CBU-83611, Bugarin must pay Esmeraldo and Cristito's heirs ₱l00,000.00 as civil
indemnity, ₱l00,000.00 as moral damages, and ₱l00,000.00 as exemplary damages. In Criminal
Case No. CBU-83613, however, the lower court should not have appreciated the use of the
unlicensed firearm as a special aggravating circumstance since at the time the tragic incident took
place, R.A. No. 8294 on illegal possession of firearm was then the applicable law, and as held in the
case of People v. Ladjaalam,25 the use of unlicensed firearm may only be considered if the same is
used in the killing. Hence, in the absence of the special aggravating circumstance of the use of
unlicensed firearm and any other aggravating circumstance, the mitigating circumstance of voluntary
surrender should be appreciated in favor of Bugarin. The penalty for attempted murder is prision
mayor, which is two (2) degrees lower from the penalty of reclusion perpetua to death for
consummated murder. Since the mitigating circumstance of voluntary surrender is present in this
case, the maximum penalty shall be taken from the minimum period of prision mayor which is six (6)
years and one (1) day to eight (8) years. Applying the Indeterminate Sentence Law, the minimum
penalty shall be taken from any of the periods of the penalty next lower in degree which is prision
correccional. Thus, the penalty of four (4) years, two (2) months, and one (1) day of prision
correccional, as minimum, to eight (8) years of prision mayor, as maximum, would be appropriate.
Also, Bugarin must pay Maria Glen ₱25,000.00 as civil indemnity, ₱25,000.00 as moral damages,
₱25,000.00 as exemblary damages, and actual damages in the amount of ₱30,909.48.

WHEREFORE,PREMISES CONSIDERED, the Court ADOPTS the findings and conclusions of law
in the Decision dated July 31, 2015 of the Court of Appeal in CA-G.R. CEB-CR-HC No. 01530
and AFFIRMS with MODIFICATION said Decision finding accused-appellant Nestor

Bugarin y Martinez guilty beyond reasonable doubt as follows:

1. In Criminal Case No. CBU-83610, Bugarin is found guilty beyond reasonable doubt of the crime of
Murder and is sentenced to suffer the penalty of reclusion perpetua, without eligibility for parole, and
ordered to pay Esmeraldo Pontanar's heirs ₱l00,000.00 as civil indemnity, ₱100,000.00 as moral
damages, ₱100,000.00 as exemplary damages,26 and actual damages in the amount of
₱245,490.00;

2. In Criminal Cease No. CBU-83611, Bugarin is found guilty beyond reasonable doubt of the crime
of Murder and is sentenced to suffer the penalty of reclusion perpetua,without eligibility for parole,
and ordered to pay Cristito Pontanar's heirs ₱l00,000.00 as civil indemnity, ₱l00,000.00 as moral
damages, ₱l00,000.00 as exemplary damages; and

3. In Criminal Case No. CBU-83613, Bugarin is found guilty beyond reasonable doubt of the crime of
Attempted Murder and is sentenced to suffer the indeterminate penalty of four (4) years, two (2)
months, and one (1) day of prision correccional, as minimum, to eight (8) years of prision mayor, as
maximum, and ordered to pay Maria Glen Neis Pontanar ₱25,000.00 as civil indemnity, ₱25,000.00
as moral damages, ₱25,000.00 as exemplary damages, and actual damages in the amount of
₱30,909.48.

All of the monetary awards shall incur an interest rate of six percent (6%) per annum from the finality
of this judgment until fully paid.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice
G.R. No. 225593

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs
PALA TOUKYO y PADEP, Accused-Appellant

RESOLUTION

PERLAS-BERNABE, J.:

Before the Court is an ordinary appeal1 filed by accused-appellant Pala Toukyo y Padep (Toukyo)
assailing the Decision2 dated July 3, 2015 of the Court of Appeals (CA) in CA-G.R. CR HC No.
05510, which modified the Decision3 dated March 6, 2012 of the Regional Trial Court of Baguio City,
Branch 61 (RTC) in Criminal Case No. 31270-R, and accordingly, found him guilty beyond
reasonable doubt of the crime of Illegal Possession of Dangerous Drugs, defined and penalized
under Section 11 of Republic Act No. (RA) 9165,4 otherwise known as the "Comprehensive
Dangerous Drugs Act of 2002."

The Facts

On November 23, 2010, an Information5 was filed before the RTC charging Toukyo of Illegal Sale of
Dangerous Drugs, defined and penalized under Article 5 of RA 9165, viz.:

That on or about the 22nd day of November, 2010, in the City of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, did then and there willfully,
unlawfully and feloniously deliver one (1) piece marijuana, a dangerous drug, in brick form wrapped
in brown packaging tape weighing 1,000 grams, to Agent Ryan Peralta, a member of the PDEA-CAR
who acted as poseur buyer, knowing the same to be a dangerous drug, in violation of the
aforementioned provision of law.

CONTRARY TO LAW.6

The prosecution alleged that on November 22, 2010, Agent Ryan Peralta (Agent Peralta) of the
Philippine Drug Enforcement Agency - Cordillera Administrative Region (PDEA-CAR) received
information from a civilian informant regarding the illegal drug selling activities of Toukyo. After
confirming via text message that Toukyo was indeed selling a brick of marijuana for ₱2,000.00, the
PDEA-CAR sent a buy-bust team comprised of

Agents Peralta, John Kay-an (Agent Kay-an), and Santino Awichen (Agent Awichen) to entrap
Toukyo. In the afternoon of even date near a restaurant located at Burnham Park, Agent Peralta and
the informant met with Toukyo. After Toukyo showed Agent Peralta the brick of marijuana, Agent
Peralta executed the pre-arranged signal, leading to Toukyo's arrest. Agents Kay-an and Awichen
immediately marked the seized marijuana at the place of arrest, and thereafter, Agent Peralta took
the marijuana as well as the backpack where it is placed. Upon reaching the PDEA-CAR field office,
Agent Peralta turned over the backpack containing the seized marijuana to Agent Dick Dayao (Agent
Dayao), who in tum, executed the proper documentation and delivered the seized item to the Crime
Laboratory.7 A qualitative examination reveals that the backpack indeed contains one (1)
kilogram/1,000 grams of marijuana.8

For his part, Toukyo invoked the defenses of denial and frame-up. He averred that on November 21,
2010, he was at the Igorot Garden when he overheard a certain Bonifacio and a companion
regarding a possible work opportunity. After inquiring if he could join them in the said opportunity,
Bonifacio replied in the affirmative and told him to wait for his text the next day. On the day he was
arrested, Toukyo met with Bonifacio and they rode a jeepney together towards Burnham Park. Upon
reaching Burnham Park, Bonifacio asked Toukyo to wait for him as he will just go to the restroom,
with the former leaving his backpack to the latter. While holding Bonifacio's backpack, Toukyo was
1âwphi1

suddenly grabbed by police agents and asked where his companion is. Toukyo then pointed at the
restroom but Bonifacio was no longer there, prompting the police to bring him to the PDEA-CAR
office. Thereat, Toukyo was mauled to force him to admit ownership of the contents of the bag but
he refused. After taking the cash from his wallet, Toukyo was fingerprinted, taken to the hospital for
a "check-up," and returned to the PDEA-CAR office. After he again denied ownership of the contents
of the backpack, he was brought to the detention cell and was told to wait for his transfer to the
Baguio City Jail.9

The RTC Ruling

In a Decision10 dated March 6, 2012, the RTC found Toukyo guilty beyond reasonable doubt of the
crime charged, and accordingly, sentenced to suffer the penalty of life imprisonment and to pay a
fine in the amount of ₱5,000,000.00.11

The RTC found that the PDEA-CAR agents successfully executed a buy-bust operation which
resulted in Toukyo's arrest as the seller of the seized marijuana. In this regard, the RTC found
untenable Toukyo's defenses of denial and frame-up in view of the clear and convincing evidence
against him as well as the presumption of regularity in the official duties of the PDEA-CAR agents
who arrested him.12

Aggrieved, Toukyo appealed to the CA.13

The CA Ruling

In a Decision14 dated July 3, 2015, the CA modified Toukyo's conviction, finding him guilty beyond
reasonable doubt of Illegal Possession of Dangerous Drugs defined and penalized under Section 11
of RA 9165, and accordingly, sentenced him to suffer the penalty of life imprisonment and to pay a
fine in the amount of ₱500,000.00.15

Contrary to the RTC's findings, the CA ruled that there was no valid buy-bust operation that took
place, especially in light of the fact that upon seeing the brick of marijuana, Agent Peralta
prematurely executed the prearranged signal which led to Toukyo's arrest. Since no actual
transaction took place before Toukyo's arrest, i.e., the exchange of the marijuana and the marked
money between the poseur-buyer and the seller, Toukyo cannot be convicted of the crime of Illegal
Sale of Dangerous Drugs. This notwithstanding, the CA convicted Toukyo of the crime of Illegal
Possession of Dangerous Drugs defined and penalized under Section 11 of RA 9165, as: (a) he
clearly had no authority to possess the one (1) kilogram/1,000 grams worth of marijuana seized from
him; and (b) case law has consistently ruled that the crime of Illegal Possession of Dangerous Drugs
is necessarily included in the crime of Illegal Sale of Dangerous Drugs, the crime charged in the
Information.16

In this relation, the CA held that the PDEA-CAR agents complied with the chain of custody rule,
considering that: (a) the marking of the seized items were immediately made at the scene of the
arrest; (b) Agent Peralta took custody of the seized marijuana and handed it over to Agent
Dayao; (c) Agent Dayao conducted an actual inventory of the seized item in the presence of and
signed by the representatives of the DOJ, barangay, and the media; and (d) thereafter, Agent Dayao
delivered the seized item to the Crime Laboratory where it was received by the Forensic Chemical
Officer, Police Senior Inspector Alex Diwas Biadang, Jr.17

Hence, the instant appeal.

The Issue Before the Court

The core issue for the Court's resolution is whether or not Toukyo is guilty beyond reasonable doubt
of the crime of Illegal Possession of Dangerous Drugs, defined and penalized under Section 11 of
RA 9165.

The Court's Ruling

At the outset, it appears from the records that in a letter18 dated January 26, 2017, Director General
Atty. Benjamin C. De Los Santos of the Bureau of Corrections informed the Court that Toukyo had
already died on October 15, 2014, attaching thereto a Certification19 issued by Mr. Jose Ramon C.
Padua, the Bureau's Officer-in-Charge for its Rehabilitation Operations Division, as well as the Death
Report20 issued on even date by Dr. Ursicio D. Cenas, Medical Officer III of the same Bureau.

Therefore, the criminal case against Toukyo, including the instant appeal, is hereby dismissed.

Under Paragraph 1, Article 89 of the Revised Penal Code, the consequences of Toukyo's death are
as follows:

Art. 89. How criminal liability is totally extinguished. - Criminal liability is totally extinguished:

1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability
therefore is extinguished only when the death of the offender occurs before final judgment.

In People v. Bayotas,21 the Court eloquently summed up the effects of the death of an accused
pending appeal on his liabilities, as follows:

From this lengthy disquisition, we summarize our ruling herein:

1. Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as
the civil liability based solely thereon. As opined by Justice Regalado, in this regard, "the death of
the accused prior to final judgment terminates his criminal liability and only the civil liability directly
arising from and based solely on the offense committed, i.e., civil liability ex delicto in senso
strictiore."

2. Corollarily, the claim for civil liability survives notwithstanding the death of accused, if the same
may also be predicated on a source of obligation other than delict. Article 1157 of the Civil Code
enumerates these other sources of obligation from which the civil liability may arise as a result of the
same act or omission:

a) Law

b) Contracts

c) Quasi-contracts
 d) xxx

e) Quasi-delicts

3. Where the civil liability survives, as explained in Number 2 above, an action for recovery therefor
may be pursued but only by way of filing a separate civil action and subject to Section 1, Rule 111 of
the 1985 Rules on Criminal Procedure as amended. This separate civil action may be enforced
either against the executor/administrator or the estate of the accused, depending on the source of
obligation upon which the same is based as explained above.

4. Finally, the private offended party need not fear a forfeiture of his right to file this separate civil
action by prescription, in cases where during the prosecution of the criminal action and prior to its
extinction, the private-offended party instituted together therewith the civil action. In such case, the
statute of limitations on the civil liability is deemed interrupted during the pendency of the criminal
case, conformably with provisions of Article 1155 of the Civil Code, that should thereby avoid any
apprehension on a possible privation of right by prescription.22

Thus, upon Toukyo's death pending appeal of his conviction, the criminal action is extinguished
inasmuch as there is no longer a defendant to stand as the accused.23 Notably, there is no civil
liability that arose from this case, there being no private complainant to begin with.

WHEREFORE, the Court RESOLVES to: (a) SET ASIDE the appealed Decision dated July 3, 2015
of the Court of Appeals (CA) in CAG. R. CR HC No. 05510; (b) DISMISS Criminal Case No. 31270-
R before the Regional Trial Court of Baguio City, Branch 61 by reason of the death of accused-
appellant Pala Toukyo y Padep; and (c) DECLARE the instant
case CLOSED and TERMINATED. No costs.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice
G.R. No. 200396

MARTIN VILLAMOR y TAYSON, and VICTOR BONAOBRA y GIANAN, Petitioners

vs
PEOPLE OF THE PIDLIPPINES, Respondents

DECISION

DEL CASTILLO, J.:

The Constitution guarantees the right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature and for any purpose.1 A
mere tip from an unnamed informant does not vest police officers with the authority to barge into
private homes without first securing a valid warrant of arrest or search warrant. While there are
instances where arrests and searches may be made without a warrant, the Court finds that the
constitutionally-protected right against unreasonable searches and seizures was violated in the case
at bar.

This Petition for Review under Rule 45 of the Rules of Court seeks to set aside the June 13, 2011
Decision2 of the Court of Appeals (CA) in CA-G.R. CR No. 30457 which affirmed the October 25,
2006 Judgment3 of the Regional Trial Court (RTC), Branch 43 of Virac, Catanduanes in Criminal
Case Nos. 3463 and 3464) convicting both petitioners for Violation of Presidential Decree (PD) No.
1602 as amended by Republic Act (RA) No. 9287, otherwise known as "An Act Increasing the
Penalties for Illegal Numbers Games Amending Certain Provisions of PD 1602 and for Other
Purposes." Petitioner Martin T. Villamor (Villamor) was convicted as a collector of bets in the illegal
numbers game of "lotteng" under Section 3(c) of RA 9287, while petitioner Victor G. Bonaobra
(Bonaobra) was convicted as a coordinator, controller, or supervisor under Section 3(d) of the said
Jaw. The RTC sentenced Villamor to suffer the penalty of imprisonment from eight (8) years and one
(1) day as minimum to nine (9) years as maximum, while Bonaobra was sentenced to suffor the
penalty of imprisonment of ten (10) years and one (1) day as minimum to eleven (11) years as
maximum.

Factual Antecedents

Villamor was charged with violation of Section 3(c) of RA 9287 for collecting and soliciting bets for an
illegal numbers game locally known as "lotteng' and possessing a list of various numbers, a
calculator, a cellphone, and cash. The charge stemmed from the following lnformation:4

That on or ahout the 17th day of June 2005 in the morning, in barangay Francia, municipality of Virac,
province of Catanduanes, Philippines, \vi thin the jurisdiction of this Honorable Court the said
accused with intent [to] gain thru illegal means did then and there, [ willfully ], unlawfully and
feloniously engage, collect [and] solicit x x x bets for illegal numbers game locally known as
"Lotteng" by having in his possession [a] calculator, cellphone, [list] of various numbers and money
and lotteng paraphernalias.

CONTRARY TO LAW.

Another Information5 was filed in the same court charging Bonaobra with violation of the same law,
committed as follows:
That on or about the 17th day of June 2005 in the morning, in barangay Francia, municipality of
Virac, province of Catanduanes, Philippines, within the jurisdiction of this Honorable Court the said
accused with intent [to] gain thru illegal means did then and there, [willfully], unlawfully and
feloniously maintain and operate illegal numbers game locally known as "lotteng" while in
possession of gambling paraphernalias, such as [a] calculator, cellphone, list of various numbers
and cash in the amount of ₱1,500.00 representing collection of bets.

CONTRARY TO LAW.

Petitioners filed t1eir respective Motions for Reinvestigation, which were both granted by the RTC.
Subsequently, the Office of the Provincial Prosecutor issued separate Resolutions both dated
September 13, 2005 amending the Informations in both cases.

In the Amended Information, the phrase "acting as a collector" was included to charge Villamor as a
collector in an illegal numbers game. The Amended Information6 provides:

That on or about the 17th day of June 2005 in the morning, in barangay Francia, municipality of
Virac, province of Catanduanes, Philippines, within the jurisdiction of this Honorable Court the said
accused acting as a collector with intent [to] gain thru illegal means[,] did then and there, willfully,
unlawfully and foloniously engage, collect and solicit bets for illegal numbers game locally known as
"Lotteng" by having in his possession [a] calculator, cellphone, [list] of various numbers and money
and lotteng paraphernalias.

CONTRARY TO LAW.

On the other hand, Bonaobra was charged as a manager or operator in the Amended
Info1mation,7 the incriminatory paragraph of which states:

That on or about the 17th day of June 2005 in the morning, in barangay Francia, municipality of
Virac, province of Catanduanes, Philippines, within the jurisdiction of this Honorable Court the said
accused acting as manager and operator with intent [to] gain thru illegal means did then and there,
[willfully], unlawfully and feloniously maintain and operate illegal numbers game locally known as
"lotteng" while in possession of gambling paraphernalia, such as [a] calculator, cellphone, lists of
variott5 numbers and cash in the amount of ₱l,500,00 representing colleciion of bets.

CONTRARY TO LAW.

When separately arraigned, Villamor, on October 4, 2005 and Bonaobra, on November 29, 2005,
both pleaded not guilty to the respective charges filed against them. After the pre-trial conference, a
joint trial on the merits followed.

Version of the Prosecution

The prosecution presented four witnesses, namely: Domingo Tejerero (Tejerero), Provincial Director,
Police Superintendent Francisco Penaflor (PD Peñaflor), SP04 Severino Malasa, Jr., and POI David
Adrian Saraspi (POI Saraspi). Culled from the records were the following facts:

On June 17, 2005, at around 9:00 a.m., PD Peñaflor received a call from an infonnant regarding an
ongoing illegal numbers game at Barangay Francia, Virac, Catanduanes, specifically at the
residence of Bonaobra. A team composed of PD Peñaflor, Saraspi, PO 1 Rolando Ami, a driver, and
a civilian asset proceeded to Bonaobra's residence to confirm the report.
Upon arrival at the target area, the team parked their service vehicle outside the compound fenced
by bamboo slats installed two inches apart which allowed them to see the goings on inside.
According to the police officers, they saw petitioners in the act of counting bets, described by the
Bicol term "revisar," which means collating and examining numbers placed in "papelitos," which are
slips of paper containing bet numbers, and counting money bets.

When they entered the gate of the compound, they introduced themselves as police officers and
confiscated the items found on the table consisting of cash amounting to ₱l,500.00 in different
denominations, the "papelitos," a calculator, a cellular phone, and a pen. Petitioners were then
brought to Camp Francisco Camacho where they were investigated for illegal gambling.
Subsequently, a case was filed against the petitioners before the Office of the Provincial Prosecutor.

Version of the Defense

The defense presented six witnesses, namely Villamor, Bonaobra, Demetrio Bonaobra. the brother
of Bonaobra, Florencio Bonaobra (Florencio), the father of Bonaobra, Juan Vargas, and Jonah
Bonaobra (Jonah), the wife of Bonaobra. Their testimonies are summarized below.

On June 17, 2005, at around 8:30 a.m., Villamor went to Bonaobra's house to pay a debt he owed to
the latter's wife, Jonah. At that time, Bonaobra was having coffee with his father Florencio inside
their house. Villamor gave Bonaobra ₱2,000.00 which the latter placed on top of the table. Bonaobra
then went outside the house to answer his cellphone. When Bonaobra was at the door, a man later
identified as PD Peñaflor kicked the fence of Bonaobra's house, grabbed Bonaobra's right arm, and
said, "Caught in the act ka!" Florencio went outside and asked PD Peñaflor if he had a search
warrant. Two more men entered the house and took the money from the table. Petitioners were then
made to board the service vehicle and brought in for investigation at the police headquarters.

Ruling of the Regional Trial Court

On October 25, 2006, the RTC of Virac, Catanduanes, Branch 43 rendered its Judgment finding
petitioners guilty beyond reasonable doubt of committing illegal numbers game locally known
as ''lotteng," a variant of the game Last Two,8 respectively as a collector or agent under Section 3(c),
and as a coordinator, controller, or supervisor under Section 3(d), of RA 9287.

The RTC gave credence to the testimonies of the arresting officers and held that petitioners were
caught in flagrante delicto committing an illegal numbers game locally known as "lotteng," a variant
of Last Two. The RTC held that petitioners were seen by the arresting officers in the act of counting
bets before the arrest was made inside Bonaobra' s compound. 1he petitioners were also caught
holding "'papelitos," which contained the three rows of two-number combinations. Since the winning
combination in "lotteng" is taken from the first two numbers of the winning combinations in the daily
draw of the lotto in the Philippine Charity Sweepstakes, the RTC held that the number combinations
shown in the ''papelitos" were meant to correspond to the lotto results.

The RTC further held that Villamor's participation in the illegal numbers game was that of a collector
since he brought bet money to Bonaobra while the latter was that of a coordinator, controller, or
supervisor after it was shown that he received the money from Villamor.

The dispositive part of the Judgment of the RTC reads:

WHEREFORE, applying the Indeterminate Sentence Law, this Court hereby SENTENCES Martin
Villamor to suffer a penalty of imprisonment from eight (8) years and one (1) day as minimum to nine
(9) years as maximum, and Victor Bonaobra to suffer a penalty of ten (10) years and one (1) day as
minimum to eleven (11) years as maximum. Likewise, the money amounting to ₱l,500.00 and the
other personal properties used as gambling paraphernalia, like the calculator, ballpen and cellular
phone are confiscated in favor of the state.

SO ORDERED9

Ruling of the Court of Appeals

On June 13, 2011, the CA affirmed the RTC's Decision. The CA brushed aside Bonaobra's
argument that his right to due process was violated when he was convicted of a crime different from
that with which he was charged. The CA held that the classification of a maintainer, manager, or
operator includes a coordinator, controller, or supervisor.10The CA ratiocinated that to hold a
maintainer guilty of the lesser offense of acting as a coordinator will not be violative of his right to be
informed of the nature and cause of his accusation since the graver offense of acting as a maintainer
necessarily includes being a coordinator.

With respect to Villamor, the CA gave more weight and credence to the testimonies of the arresting
officer who were presumed to have acted regularly in the performance of their official functions. The
CA held that Villamor' s denials cannot prevail over the positive assertions of the police officers who
caught him in the act of revising and counting bets.

The CA disposed the case as follows:

IN VIEW OF THE FOREGOING, the decision appealed from is affirmed.

SO ORDERED.11

Hence, this Petition.

Issue

The main issue in this case is whether the petitioners' conviction for violation of RA 9287 as collector
or agent under Section 3(c) for Villamor, and as coordinator, controller, or supervisor m1der Section
3(d) for Bonaobra, should be upheld.

Our Ruling

We find the Petition meritorious.

In criminal cases, an appeal throws the entire "case wide open for review and the reviewing tribunal
can correct errors, though unassigned in the appealed judgment, or even reverse the trial court's
decision [based on] x x x grounds other than those that the parties raised as errors."12

The Court finds that the right of the petitioners against unreasonable searches and seizures was
violated by the arresting officers when they barged into Bonaobra's compound without a valid
warrant of arrest or a search warrant. While there are exceptions to the rule requiring a warrant for a
valid search and seizure, none applies in the case at bar. Consequently, the evidence obtained by
the police officers is inadmissible against the petitioners, the same having been obtained in violation
of the said right.
Section 2, Article Ill of the 1987 Constitution requires a judicial warrant based on the existence of
probable cause before a search and an arrest may be effected by law enforcement agents. Without
the said warrant, a search or seizure becomes unreasonable within the context of the Constitution
and any evidence obtained on the occasion of such unreasonable search and seizure shall be
inadmissible in evidence for any purpose in any proceeding.13"Evidence obtained and confiscated on
the occasion of such an unreasonable search and seizure is tainted and should be excluded for
being the proverbial fruit of the poisonous tree."14

In this case, the apprehending officers claim that petitioners were caught in flagrante delicto, or
caught in the act of committing an offense. PD Peñaflor and his team of police officers claim that
petitioners were committing the offense of illegal numbers game when they were arrested without a
warrant.

We are not persuaded.

Under Section 5 of Rule 113 of the Rules of Court, a lawful arrest may be effected even without a
warrant of arrest in the following instances:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a
warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while his
case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance
with Section 7 of Rule 112.

In warrantless arrests made pursuant to Section 5(a), Rule 113, two elements must concur, namely
"(a) the person to be arrested must execute an overt act indicating that he has just committed, is
actually committing, or is attempting to commit a crime; and (b) such overt act is done in the
presence or within the view of the arresting officer."15

After a judicious review of the records of the case, the Court finds that there was no valid
warrantless arrest on petitioners. It was not properly established that petitioners had just committed,
1âw phi 1

or were actually committing, or attempting to commit a crime and that said act or acts were done in
the presence of the arresting officers. Based on the testimonies of PO1 Saraspi and PD Peñaflor,
they were positioned some 15 to 20 meters away from petitioners. PO 1 Saraspi's testimony during
cross examination reveals the following:

ATTY. SAMONTE:
Q While you were outside the compound of Bonaobra, what was your distance to accused Martin
Villamor and Victor Bonaobra?

A More or less fifteen (15) to twenty (20) meters.

Q Is it not that the compound of Bonaobra is surrounded with fence?

A Yes, sir.

Q Bamboo fence, right?

A Yes, sir, without a gate.

Q Are you sure it's without a gate?

A Probably it was open.

Q Can you determine the height of the fence?

A Between 5'7" to 5'9".

Q More than your height?

A Yes, sir.

Q Can you tell us whether you can see what the person is doing inside the compound while you are
outside?

A The fence is made up [sic] of bamboo and there were gaps as far as the fence is concerned that is
why when we alighted from the Frontier we saw what was inside the compound.

Q And the space of each bamboo, can you determine [sic]?

A One and half to two inches apart.

Q When you were already outside the compound what were the accused doing?

A They were sitting and they were revising.

Q Were they seated with [sic] a table?

A They were sitting and Victor Bonaobra was without a shirt.

Q What were they holding?

A 'Papelitos'.

Q What else?

A While they were holding 'papelitos' the monies were just on the table.
Q At the distance of 15 to 10 meters can you determine the contents of the 'papelitos'?

A No, sir.

Q So you are not sure whether those are gambling paraphernalia?

A No, sir.

Q Because you do not know the contents of that and you are not sure whether those are gambling
paraphernalia you went inside, is that right?

A After we introduced ourselves that we are [sic] police officers we entered the compound.

Q Meaning to say you were outside the compound and saying you are policemen?

A We entered first and we introduced ourselves.

Q Which is first, going inside or introducing yourselves?

A While entering we were also introducing ourselves simultaneously.

Q When you reached inside, what did you determine?

A We determined that there were lotteng paraphernalia on the table.

Q That is the only time that you determined that those were gambling paraphernalia?

A No, even on the [sic] outside we identified it already.

Q A while ago you said at a distance of 15 to 10 meters you can determine whether they were in
possession of the illegal gambling paraphernalia?

A What I am trying to say is that I cannot identify those that are written on the 'papelitos' at the
distance and I saw the calculator, the money bets.

Q So what you saw within a distance of 15 to 10 meters are calculators, money and cellphone?

A Yes, sir.

Q Do you consider money gambling paraphernalia?

A Yes, sir.

Q So every time you see money you will consider that a gambling paraphernalia?

A In other situations.

Q How about calculator, do you consider calculator gambling paraphernalia?

A Yes, sir.
Q When you go to a department store there are calculators, do you consider those calculators
gambling paraphernalia?

A If you are going to consolidate all these items in a table all of these are gambling paraphernalia

Q So when you consolidate these items and papers and calculators, if you see those items at
Century Trading, will you consider those as gambling paraphernalia?16

Considering that 15 to 20 meters is a significant distance between the police officers and the
petitioners, the Court finds it doubtful that the police officers were able to determine that a c1iminal
activity was ongoing to allow them to validly effect an in flagrante delicto warrantless arrest and a
search incidental to a warrantless arrest thereafter. The police officers even admitted that the
compound was surrounded by a bamboo fence 5'7" to 5'9" in height, which made it harder to see
what was happening inside the compound. It appears that the police officers acted based solely on
the information received from PD Peñaflor's informant and not on personal knowledge that a crime
had just been c01m11itted, was actually being committed, or was about to be committed in their
presence. The Court finds it doubtful that the police officers witnessed any overt act before entering
the private home of Bonaobra immediately preceding the arrest. PO1 Saraspi even admitted that
from his position outside the compound, he could not read the contents of the so-called "papelitos;"
yet, upon seeing the calculator, phone, papers and money on the table, he readily concluded the
same to be gambling paraphernalias.

On the part of PD Peñaflor, he likewise admitted that from his position outside the compound, he
could not determine the activities of the persons inside. It was only after he had illegally entered the
compound, since he was not armed with a warrant, that he supposedly saw the gambling
paraphernalia. PD Peñaflor's testimony in this regard is as follows:

Q Can you tell the Honorable Court, Mr. Witness, the distance of the house of Victor Bonaobra to
that place where you parked your vehicle when you arrived in the vicinity?

A When I parked my vehicle in front of the compound because that is a street, the distance from the
street to that place where there is an on-going 'revisar' of 'lotteng', more or less 15 to 20 meters, I
believe, from the gate.

Q So, you did not immediately go inside the compound of Victor Bonaobra?

A Yes, sir. I verified first if there is really [sic] persons in the compound.

Q So, at that distance of 15 to 20 meters, you were able to verify what they were doing on the
particular 1ime, Mt. Witness?

A No, sir.17

During his direct examination, Bonaobra testified that he was only answering his cellphone when PD
Peñaflor barged into his compound and arrested him. The relevant portions of his testimony reveals
the following:

ATTY SAMONTE:

Q At around 9:00 a.m. of June 17, 2005, what were you doing if you still remember?
A I stood up and I went out and made [sic] three steps from the door to answer the cellphone and
later on I was surprised when the police whom I could not identify, kicked the door.

Q Mr. Witness, which door [are you] referring to [that] was kicked by the police?

A The gate outside of our fence.

xxxx

Q You said a while ago that the policeman kicked the door of your fence x

xx who was that policeman, if you know him?

A: Provincial Director Peñaflor.

Q: Who was with PD Peñaflor on [sic] that particular time, if any, Mr. Witness?

A Two (2) persons in civilian clothes.

xx xx

Q After PD Peñaflor kicked the door of your fence, what happened next, Mr. Witness?

A He held my hand and he seized my cellphone.

xxxx

Q After PD Peñaflor seized your cellphone, what else did he do?

A He said, "caught in the act."

Q Which comes first, Mr. Witness, the utterance made by PD Peñaflor that you were caught in the
act or the utterance made by your father whether they had a warrant?

A When my father asked them whether they have a warrant.

Q And what was the answer of PD Peñaflor when your father asked that question?

A He said, "caught in the act."

Q And what was the reply of your father?

A My father said that what you am doing is wrong, that is prohibited.

Q And what did PD Peñaflor answered [sic] to your father?

A He shouted at my father, "Di na kailangan yan" (That is not needed).18

From the circumstances above, it is highly suspect that PD Peñaflor had witnessed any overt act
indicating that the petitioners were actually committing a crime. While PD Peñaflor claims that he
caught the petitioners in the act of collecting bets and counting bet money, this observation was
highly improbable given the distance of the police from the petitioners and the fact that the
compound was surrounded by a bamboo fence.

For his part, Villamor claimed that he was at the Bonaobra compound to repay his loan to Jonah.
The prosecution, through Prosecutor Tañon, even admitted this fact during Jonah's direct
examination. The following exchange between the prosecution and the defense was quite revealing:

ATTY. SAMONTE:

Your Honor, please, [may] I respectfully offer the testimony of Jona[h] Bonaobra to show that she is
the ·wife of Victor Bonaobra; that at around 8:30 a.m. of June 17, 2005 she was inside their
residence at Bonaobra's compound, Francia, Virac, Catanduances and on that particular time and
date, Martin Villamor arrived to pay his debt and she personally witnessed the unlawful act
committed by the policemen who entered their dwelling on that particular lime and date and such
other matters relative thereto, Your Honor.

COURT:

Any comment from the prosecution?

PROS. TAÑON:

We will admit that she is the wife of Victor Bonaobra; that on Jw1e 17, 2005 at 8:30 in the morning
she was inside the residence of Bonaobra's compound; that accused Martin Villamor arrived to pay
his debt. We are to contest on that she personally witnessed the unlawful act.

A1TY. SAMONTE:

To clarify that, the prosecution is admitting the fact that Martin arrived to pay the loan on that
particular day?

PROS. TAÑON:

Yes, Your Honor.

COURT:

Okay, so that we can proceed to the other matters.19 (Emphasis supplied)

From the exchange above, it is clear that the prosecution admitted that Villamor went to Bonaobra's
house to pay his loan to Jonah. Thus, at the exact moment of the arrest, neither Bonaobra, who was
answering his cellphone, nor Villarr1or, who was paying his loan. was performing any overt act
constitutive of a crime.

Verily, the warrantless arrest conducted by PD Peñaflor and his team was unlawful as the same
does not satisfy the requirements of an in flagrante delicto arrest. Consequently, the search and
seizure of the effects found inside the house of Bonaobra are likewise illegal since there could be no
valid search incident to an illegal warrantless arrest. Thus, evidence seized from Bonaobra's house
is inadmissible for being a fruit of the poisonous tree.
The Court is aware that any question regarding the legality of a warrantless arrest must be raised
before arraignment. Failure to do so constitutes a waiver of the right to question the legality of the
arrest especially when the accused actively participated during trial as in this case. However, we
have clarified that such waiver is only confined to the defects of the arrest and not on the
inadmissibility of the evidence seized during an illegal arrest. In People v. Racho,20 the Court held
that:

Obviously, this is an instance of seizure of the 'fruit of the poisonous tree', hence, the confiscated
item is inadmissible in evidence consonant with Article III, Section 3(2) of the 1987 Constitution, 'any
evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose
in any proceeding'.

Without the confiscated shabu, appellant's conviction cannot be sustained based on the remaining
evidence. Thus, an acquittal is warranted, despite the waiver of appellant of his right to question the
illegality of his arrest by entering a plea and his active participation in the trial of the case. As earlier
mentioned, the legality of an arrest affects only the jurisdiction of the court over the person of the
accused. A waiver of an illegal, warrantless arrest does not carry with it a waiver of the
inadmissibility of evidence seized during an illegal warrantless arrest. (Emphasis supplied)

In this case, the prosecution failed to clearly establish the acts that constitute the offense of illegal
gambling as a collector or an agent under Section 3(c), and as a coordinator, controller, or
supervisor under Section 3(d), of RA 9287. Under the said law, a collector or agent is "any person
who collects, solicits or produces bets in behalf of his/her principal for any illegal numbers game who
is usually in possession of gambling paraphernalia."21 On the other hand, a coordinator, controller, or
supervisor is defined as, ''any person who exercises control and supervision over the collector or
agent."22 The prosecution merely relied on the alleged illegal gambling paraphernalia found and
confiscated inside the house of Bonaobra and not on the specific overt acts that constitute the
offense.

All told, the evidence purportedly seized from the Bonaobra compound is inadmissible in evidence
since it was obtained in violation of Section 3(2), Article III of the 1987 Constitution. Since the
alleged illegal gambling paraphernalia is the very corpus delicti of the crime charged, the Court
acquits petitioners.

WHEREFORE, the June 13, 2011 Decision of the Court of Appeals in CA-G.R. CR No. 30457 which
affirmed the Judgment of the Regional Trial Court of Virac, Catanduanes, Branch 43 in Criminal
Case Nos. 3463 and 3464 is hereby REVERSED and SET ASIDE. Petitioners Martin
Villamor y Tayson and Victor Bonaobra y Gianan are ACQUITTED and are ordered to be
immediately RELEASED from detention, unless they are confined for any other lawful cause.

The Director of the Bureau of Corrections is DIRECTED to IMPLEMENT this Decision and to report
to this Court the action taken hereon within five days from receipt.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice
may