People v Pepino People v Pepino [full text]

G.R. No. 174471 BRION, J.:

FACTS:
This is an appeal filed by Jerry Pepino (Pepino) and Preciosa
Two men and a woman entered the office of Edward Tan at Gomez (Gomez) assailing the June 16, 2006 decision1 of the
Kilton Motors Corporation in Sucat, Parafiaque City, and Court of Appeals (CA) in CA-G.R. CR-HC No. 02026.
pretended to be customers. When Edward was about to
receive them, one of the men, eventually identified as Pepino ANTECEDENTS
pulled out a gun. Thinking that it was a holdup, Edward told
Pepino that the money was inside the cashier's box. Pepino
The prosecution evidence showed that at 1:00 p.m., on June
and the other man looted the "'cashier's box, handcuffed
28, 1997, two men and a woman entered the office of Edward
Edward, and forced him to go with them. The abductors then
Tan at Kilton Motors Corporation in Sucat, Parafiaque City, and
confined Edward in an apartment in Quezon City where they
pretended to be customers. When Edward was about to
insisted on asking ransom from Edward’s father.
receive them, one of the men, eventually identified as Pepino
pulled out a gun. Thinking that it was a holdup, Edward told
The exchange was performed eventually with the abductors
Pepino that the money was inside the cashier's box. Pepino
and Edward’s wife Jocelyn wherein after the exchange of
and the other man looted the "'cashier's box, handcuffed
money and Edward being released, the victim reported the
Edward, and forced him to go with them.2 From the hallway,
kidnapping to Teresita Ang See, a known anti-crime crusader.
Jocelyn Tan (mentioned as "Joselyn" in some parts of the
After five months, the National Bureau of record), Edward's wife, saw Pepino take her husband. She
Investigation (NBI!) informed Edward that they had went to the adjoining room upon Edward's instructions.3
apprehended some suspects, and invited him to identify them
from a lineup consisting of seven persons: five males and two Pepino brought Edward to a metallic green Toyota Corolla
females. Edward positively identified Pepino, Gomez, and one where three other men were waiting inside. The woman (later
Mario Galgo. Jocelyn likewise identified Pepino. identified as Gomez) sat on the front passenger seat.4 The
abductors then placed surgical tape over Edward's eyes and
Pepino and Gomez did not testify for their defense. The made him wear sunglasses. After travelling for two and a half
defense instead presented Zeny Pepino, Reynaldo Pepino who hours, they arrived at an apartment in Quezon City. The
alleged that they were arrested without a valid warrant of arrest abductors removed the tape from Edward's eyes, placed him in
leading to a violation of their rights. a room, and then chained his legs. Pepino approached Edward
and asked for the phone number of his father so that he could
ISSUE: ask for ransom for his (Edward's) liberty. Edward told Pepino to
negotiate with his wife, but the latter insisted on talking to his
Whether or not the illegal arrest of an accused is sufficient father.5
cause for setting aside a valid judgment rendered upon a
sufficient complaint after a trial free from error. At around 5:00 p.m. of the same day, the kidnappers called
Edward's father and demanded a P40 million ransom for his
RULING: release. Edward's father told the kidnappers that he did not
have that amount. The abductors negotiated with Jocelyn who
No.The Court pointed out at the outset that Gomez did not
eventually agreed to a P700,000.00 ransom. The kidnappers
question before arraignment the legality of her warrantless
told Jocelyn to pack the money into two packages and to drop
arrest or the acquisition of RTC's jurisdiction over her person.
these at a convenience store in front of McDonald's at
Thus, Gomez is deemed to have waived any objection to her
Mindanao Avenue. They further demanded that Edward's
warrantless arrest.
vehicle be used to bring the money.6
It is settled that any objection to the procedure followed in the
matter of the acquisition by a court of jurisdiction over the After four days, or on July 1, 1997, Antonio Gepiga (the family
person of the accused must be opportunely raised before he driver) brought the agreed amount to the 7-Eleven
enters his plea; otherwise, the objection is deemed waived. convenience store at Mindanao A venue as instructed.7 That
evening, three men and Gomez blindfolded Edward, made him
A]ppellant is now estopped from questioning any defect in the board a car, and drove around for 30 minutes. Upon stopping,
manner of his arrest as he failed to move for the quashing of they told Edward that he could remove his blindfold after five
the information before the trial court. Consequently, any minutes. When Edward removed his blindfold, he found himself
irregularity attendant to his arrest was cured when he inside his own car parked at the UP Diliman Campus. He drove
voluntarily submitted himself to the jurisdiction of the trial court home and reported his kidnapping to Teresita Ang See, a
by entering a plea of "not guilty" and by participating in the trial. known anti-crime crusader.8

At any rate, the illegal arrest of an accused is not sufficient After five months, the National Bureau of Investigation (NBI!)
cause for setting aside a valid judgment rendered upon a informed Edward that they had apprehended some suspects,
sufficient complaint after a trial free from error. Simply put, the and invited him to identify them from a lineup consisting of
illegality of the warrantless arrest cannot deprive the State of seven persons: five males and two females. Edward positively
its right to prosecute the guilty when all other facts on record identified Pepino, Gomez, and one Mario Galgo.9 Jocelyn
point to their culpability. It is much too late in the day to likewise identified Pepino.10
complain about the warrantless arrest after a valid information
had been filed, the accused had been arraigned, the trial had
commenced and had been completed, and a judgment of Pepino and Gomez did not testify for their defense. The
conviction had been rendered against her. defense instead presented Zeny Pepino, Reynaldo Pepino,
NBI Special Investigator Marcelo Jadloc and P/Sr. Insp. occupants of the house refused to open the ground floor door.
Narciso Quano (mentioned as "Qano" in some parts of the During their search at the second floor, the operatives found an
record). armalite and a .45 caliber gun. The members of the team
handcuffed Gomez and Reynaldo, and then brought them to
Zeny testified that she and her husband, Jerry Pepino, were Camp Crame.14
inside their house in Cebu City on December 7, 1997, when
about 20 heavily armed men entered their house looking for The prosecution charged Preciosa Gomez, Jerry Pepino,
Jerry. When Jerry asked them if they had a warrant of arrest, Reynaldo Pepino, Jessie Pepino, George Curvera, Boy
one of the men pointed a gun at him and handcuffed him; the Lanyujan, Luisito "Tata" Adulfo, Henriso Batijon (a.k.a. Dodoy
armed men then hit him with the butt of an armalite and Batijon), Nerio Alameda, and an alias Wilan Tan with
punched him. The men also took Pepino' s wristwatch and kidnapping for ransom and serious illegal detention before the
wallet, as well as Zeny's bag and watch. Some of the armed Regional Trial Court (RTC), Branch 259, Paranaque City.15
men searched the second floor of the house, and found a .45 Reynaldo was subsequently discharged after reinvestigation.
caliber gun. The armed men brought Zeny and Pepino outside Only Pepino, Gomez, and Batijon were arraigned; their other
their house where Zeny saw Renato Pepino and Larex Pepino co-accused remained at large.
already handcuffed. The armed men brought them to the Cebu
City Police Headquarters before bringing them to the NBI In its May 15, 2000 decision, the RTC convicted Pepino and
Headquarters in Manila. The following day, Jerry, Renato, and Gomez of kidnapping and serious illegal detention under
Larex were brought to the Department of Justice (DO.I). Zeny, Article 267 of the Revised Penal Code (as amended) and
on the other hand, was released after being detained at the sentenced them to suffer the death penalty. The RTC also
NBI for three (3) days.11 ordered them to pay Edward P700,000.00 representing the
amount extorted from him; P50,000.00 as moral damages; and
Reynaldo's testimony was summarized by the CA as follows: P50,000 as exemplary damages. The trial court acquitted
Batijon for insufficiency of evidence.
x x x On December 6, 1997, he accompanied accused-
appellant Gomez to his brother's sister-in-law who happens to The R TC held that Edward positively identified Pepino and
work in a recruitment agency. While they were inside the Gomez as two of the persons who forcibly abducted him at
latter's house at Lot 2, Block 15, Marikina Heights, Marikina gunpoint inside Kilton Motors, and who consequently detained
City, they heard a noise at the gate. When he peeped through him somewhere in Quezon City for four (4) days until he was
the window, he saw two (2) motorcycles and two (2) Vannette released inside the UP Diliman Campus after the payment of
vans. Shortly thereafter, someone kicked the back door and ransom. The RTC added that Jocelyn corroborated Edward's
several armed men emerged therefrom and announced their testimony on material points. It also pointed out that Edward
arrest. When he asked them if they had any warrant, they identified both Pepino and Gomez at the lineup conducted
replied: "Walang warrant, warrant. Walang search, search." inside the NBI compound, although Jocelyn only recognized
They were then hogtied and made to lie face down. Five (5) of Gomez.
them then went upstairs and seized his personal belongings
together with his briefcase which contained P45,000.00, The R TC further ruled that the accused were already
documents of accused-appellant Gomez, and his .45 caliber estopped from questioning the validity of their arrest after they
pistol as well as his license and permit to carry the same. No entered their respective pleas.
receipts were issued for their personal effects which were
confiscated. They were subsequently brought to Camp Crame
and subjected to torture. The following day, they were brought The case was automatically elevated to this Court in view of
to the Department of Justice and a case for kidnapping was the death penalty that the R TC imposed. We referred the case
filed against him. Upon reinvestigation, however, he was to the CA for intermediate review pursuant to our ruling in
discharged from the Information and the court dismissed the People v. Mateo.16
case against him.12
In its decision dated June 16, 2006, the Court of Appeals
SI Jadloc and Police Senior Inspector Quano, Jr. were affirmed the RTC decision with the modification that the
presented as hostile witnesses. amounts of moral and exemplary damages were increased
from P300,000.00 and Pl00,000.00, respectively.
Jadloc declared on the witness stand that NBI Assistant
Director Edmundo Arugay dispatched a team to Cebu City to The CA held that Pepino and Gomez were deemed to have
investigate a kidnap-for-ransom case. The team immediately waived any objection to the illegality of their arrests when they
conducted surveillance operations when they arrived at Calle did not move to quash the information before entering their
Rojo, Lahug, Cebu City. One of the team members saw plea, and when they participated at the trial.
Renato and Larex Pepino with guns tucked in their waists.
When the team approached them, the two men ran inside their The CA further ruled that Pepino and Gomez conspired with
house. The team went after them and on entering the house, each other to attain a common objective, i.e., to kidnap Edward
they saw Jerry in possession of a .45 caliber gun. The team in exchange for ransom.
arrested Jerry, Renato and Larex, and then brought them to
the NBI Headquarters in Manila.13 While the case was under review by the Supreme Court,
Pepino filed an urgent motion to withdraw his appeal, which the
Quano testified that he was designated as the leader of a team Court granted.17 Only Gomez's appeal is now pending before
tasked to arrest members of a kidnap-for-ransom group at their us.
safe house in Lot 2, Block 50, Marikina Heights, Marikina City.
When they arrived there, they introduced themselves as police In her brief18 and supplemental brief,19 Gomez maintained
officers. The police forcibly opened the door after the that it was impossible for Edward to have seen her in the front
seat of the getaway car because he (Edward) was blindfolded. detention is immaterial. Likewise, if the victim is kidnapped and
She also alleged that the prosecution failed to prove that she illegally detained for the purpose of extorting ransom, the
had conspired with the other accused. duration of his detention is also of no moment and the crime is
qualified and becomes punishable by death even if none of the
Gomez further claimed that Edward's identification of her circumstances mentioned in paragraphs 1 to 4 of Article 267 is
during trial "may have been preconditioned x x x by suggestive present.25
identification"20 made at the police lineup. She further argued
that the death penalty imposed on her is no longer proper due All these elements have been established by the prosecution.
to the enactment of Republic Act No. 9346. Edward positively identified Gomez and Pepino - both private
individuals - as among the three persons who entered his
THE COURT'S ·RULING office and pretended to be Kilton Motors'customers. He further
declared that Pepino pointed a gun at him, and forcibly took
him against his will. To directly quote from the records:
We affirm Gomez's conviction, but we modify the penalty
imposed and the awarded indemnities.
ATTY. WILLIAM CHUA:
Illegality of the Arrest
Q: Can you tell us if anything unusual happened to you on
June 28, 1997?
We point out at the outset that Gomez did not question before
arraignment the legality of her warrantless arrest or the
acquisition of RTC's jurisdiction over her person. Thus, Gomez EDWARD TAN:
is deemed to have waived any objection to her warrantless
arrest. A: I was kidnapped.

It is settled that [a]ny objection to the procedure followed in the xxxx

matter of the acquisition by a court of jurisdiction over the
person of the accused must be opportunely raised before he Q: Can you tell this Court how the kidnapping was initiated?
enters his plea; otherwise, the objection is deemed waived.21
As we held in People v. Samson:22
A: At around 1:00 o'clock in the afternoon, there were three
persons who entered the office of Kilton Motors and pretended
[A ]ppellant is now estopped from questioning any defect in the to be customers.
manner of his arrest as he failed to move for the quashing of
the information before the trial court. Consequently, any
irregularity attendant to his arrest was cured when he Q: What was the gender of these three persons that you are
voluntarily submitted himself to the jurisdiction of the trial court referring to?
by entering a plea of "not guilty" and by participating in the
trial.23 A: Two men and a woman.

At any rate, the illegal arrest of an accused is not sufficient Q: After they pretended to be customers, tell us what
cause for setting aside a valid judgment rendered upon a happened?
sufficient complaint after a trial free from error. Simply put, the
illegality of the warrantless arrest cannot deprive the State of A: · They told me they were going to pay but instead of pulling
its right to prosecute the guilty when all other facts on record out money, they pulled out a gun.
point to their culpability. It is much too late in the day to
complain about the warrantless arrest after a valid information
had been filed, the accused had been arraigned, the trial had Q: How many people pulled out guns as you said?
commenced and had been completed, and a judgment of
conviction had been rendered against her.24 A: Only one, sir.

Sufficiency of the Prosecution Evidence Q: Will you look around this courtroom now and tell us if the
person who pulled out a gun is in court?
a. Elements of kidnapping proved
A: (WITNESS POINTED TO A PERSON AT THE RIGHT
The elements of kidnapping and serious illegal detention under SECTION, SECOND ROW WHO, WHEN ASKED HIS NAME,
Article 267 of the Revised Penal Code, as amended, are: (1) ANSWERED JERRY PEPINO)
the offender is a private individual; (2) he kidnaps or detains
another or in any other manner deprives the latter of his liberty; Q: Now, you said that there were two men and a woman who
(3) the act of detention or kidnapping must be illegal; and (4) in went up the Kilton Motors Office and you pointed to one of the
the commission of the offense, any of the following men as Jerry Pepino, can you look around the courtroom and
circumstances is present: (a) the kidnapping or detention lasts tell us if any of the two others are in court?
for more than three (3) days; or (b) it is committed by
simulating public authority; or (c) serious physical injuries are
A: (WITNESS POINTED TO A WOMAN INSIDE THE
inflicted upon the person kidnapped or detained or threats to
COURTROOM WHO, WHEN ASKED HER NAME,
kill him are made; or (d) the person kidnapped or detained is a ANSWERED AS PRECIOSA GOMEZ)
minor, female, or a public officer. If the victim of kidnapping
and serious illegal detention is a minor, the duration of his
 xxxx companion brought him downstairs and out of the building, and
made him board a car; and the kidnappers demanded ransom
Q: You said Mr. Pepino pulled out his gun, what happened in exchange for Edward's release.
after he pulled out his gun?
Both the RTC and the CA found the respective testimonies of
A: He told me just to be quiet and go with him. Edward and Jocelyn credible and convincing. We affirm the
credibility accorded by the trial court (and affirmed by the CA)
to these prosecution witnesses, in the absence of any showing
Q: What was your reaction when he pointed a gun to you and that this factual finding had been arbitrarily arrived at. There is
he stated those words? nothing in the records that would put the testimonies of Edward
and Jocelyn under suspicion. We recall that Edward had close
A: I thought it was only a holdup and so I told him there was contacts with Pepino at Kilton Motors and at the safe house.
money with the cashier and told him to get it. He also saw Gomez (a) seated at the front seat of the getaway
Toyota Corolla vehicle; (b) at the safe house in Quezon City;
Q: What happened after you told him the money was in the and (c) inside the car before the kidnappers released him.
cashier's box?
Jocelyn, for her part, stated that she was very near Pepino
A: His companion took the money and told me to still go with while he was taking away her husband.
them.
In People v. Pavillare,28 the Court found the testimonies of the
Q: When they told you to go with them, what happened next? private complainant Sukhjinder Singh and his cousin, Lakhvir
A: I told them why should I still go with them and then, I was Singh, to be credible and convincing, and reasoned out as
handcuffed and was forced to go down. follows:

xxxx Both witnesses had ample opportunity to observe the

kidnappers and to remember their faces. The complainant had
close contact with the kidnappers when he was abducted and
Q: As they were bringing you down, what happened next, Mr. beaten up, and later when the kidnappers haggled on the
Witness? amount of the ransom money. His cousin met Pavillare face to
face and actually dealt with him when he paid the ransom
A: When we went down nearing his car, I was boarded on [in] money. The two-hour period that the complainant was in close
his car. contact with his abductors was sufficient for him to have a
recollection of their physical appearance. Complainant
admitted in court that he would recognize his abductors if he
xxxx
sees them again and upon seeing Pavillare he immediately
recognized him as one of the malefactors as he remembers
Q: When they boarded you inside that car, what did they do to him as the one who blocked his way, beat him up, haggled with
you, Mr. Witness? the complainant's cousin and received the ransom money. x x
x It bears repeating that the finding of the trial court as to the
A: They put surgical tape on my eyes and also sunglasses. credibility of witnesses is given utmost respect and as a rule
will not be disturbed on appeal because it had the opportunity
to closely observe the demeanor of the witness in court.29
xxxx

b. Admissibility of Identification
Q: Who was at the passenger's front seat of the car?

We find no merit in Gomez's claim that Edward's identification

A: It was Preciosa Gomez.26
of her during trial might have been preconditioned by the
"suggestive identification" made during the police lineup.
xxxx
In People v. Teehankee, Jr.,30 the Court explained the
Edward further declared on the witness stand that Pepino, procedure for out-of-court identification and the test to
Gomez, and their other co-accused brought him to a safe determine the admissibility of such identifications in this
house in Quezon City; detained him there for four (4) days; and manner:
demanded ransom from his (Edward's) family.
Out-of-court identification is conducted by the police in various
It is settled that the crime of serious illegal detention consists ways. It is done thru show-ups where the suspect alone is
not only of placing a person in an enclosure, but also in brought face to face with the witness for identification. It is
detaining him or depriving him of his liberty in any manner. For done thru mug shots where photographs are shown to the
there to be kidnapping, it is enough that the victim is restrained witness to identify the suspect. It is also done thru lineups
from going home. Its essence is the actual deprivation of the where a witness identifies the suspect from a group of persons
victim's liberty, coupled with indubitable proof of the intent of lined up for the purpose x x x In resolving the admissibility of
the accused to effect such deprivation.27 and relying on out-of-court identification of suspects, courts
have adopted the totality of circumstances test where they
Notably, Jocelyn corroborated Edward's testimony on the consider the following factors, viz: (1) the witness' opportunity
following points: Pepino poked a handgun at Edward while to view the criminal at the time of the crime; (2) the witness'
they were on the second floor of Kilton; Pepino and his degree of attention at that time; (3) the accuracy of any prior
description given by the witness; (4) the level of certainty xxxx
demonstrated by the witness at the identification; (5) the length
of time between the crime and the identification; and (6) the A TTY. ESTRUCO:
suggestiveness of the identification procedure.31
Q: When Jerry Pepino was at Kilton Motors, he embraced your
Applying the totality-of-circumstances test, we find Edward's husband?
out-of-court identification to be reliable and thus admissible. To
recall, when the three individuals entered Edward's office, they
initially pretended to be customers,32 and even asked about JOCELYN SY TAN:
the products that were for sale.33 The three had told Edward
that they were going to pay, but Pepino "pulled out a gun" A: Yes, sir. And pointed a gun at my husband.
instead.34 After Pepino' s companion had taken the money
from the cashier's box, the malefactors handcuffed Edward and Q: And he was not blindfolded at that time?
forced him to go down to the parked car. From this sequence
of events, there was thus ample opportunity for Edward -
before and after the gun had been pointed at him - to view the A: No, he was not blindfolded, he was only wearing a cap.
faces of the three persons who entered his office. In addition,
Edward stated that Pepino had talked to him "[a]t least once a Q: You are very sure that he is Jerry Pepino?
day"35 during the four days that he was detained.
A: Yes, I am very, very sure. I could not forget his face.
Edward also saw Gomez seated at the front seat of the
getaway metallic green Toyota Corolla vehicle. In addition, the
Q: You are very sure?
abductors removed the tape from Edward's eyes when they
arrived at the apartment, and among those whom he saw there
was Gomez. According to Edward, he was able to take a good A: Yes, sir. Kahit sa nightmare ko, kasama siya.
look at the occupants of the car when he was about to be
released. xx x x36

On the part of Jocelyn, she was firm and unyielding in her We add that no competing event took place to draw Edward's
identification of Pepino as the person who pointed a gun at her and Jocelyn's attention from the incident. Nothing in the
husband while going down the stairs, and who brought him records shows the presence of any distraction that could have
outside the premises of Kilton Motors. She maintained that she disrupted the witnesses' attention at the time of the incident.37
was very near when Pepino was taking away her husband; and
that she could not forget Pepino's face. For accuracy, we quote
Jurisprudence holds that the natural reaction of victims of
from the records:
criminal violence is to strive to see the appearance of their
assailants and observe the manner the crime was committed.
ATTY. CORONEL: As the Court held in People v. Esoy:38

Q: You stated that you were able to see one of the persons It is known that the most natural reaction of a witness to a
who kidnapped your husband, if you see this person again, crime is to strive to look at the appearance of the perpetrator
would you be able to identify him? and to observe the manner in which the offense is perpetrated.
Most often the face of the assailant and body movements
JOCELYN SY TAN: thereof, create a lasting impression which cannot be easily
erased from a witness's memory. Experience dictates that
precisely because of the unusual acts of violence committed
A: Yes, sir.
right before their eyes, eyewitnesses can remember with a
high degree of reliability the identity of criminals at any given
Q: Can you look around the courtroom and see if the person time.39
you are referring to is here today?
While this pronouncement should be applied with great
A: Yes, sir. caution, there is no compelling circumstance in this case that
would warrant its non-application.
Q: Can you point to him?
Contrary to what Gomez claimed, the police lineup conducted
A: (WITNESS POINTED TO A MALE PERSON INSIDE THE at the NBI was not suggestive. We note that there were seven
COURTROOM WHO WHEN ASKED HIS NAME ANSWERED people in the lineup; Edward was not compelled to focus his
AS JERRY PEPINO). attention on any specific person or persons. While it might
have been ideal if there had been more women included in the
lineup instead of only two, or if there had been a separate
Q: Ms. Witness, what role did this person whom you identified lineup for Pepino and for Gomez, the fact alone that there were
and gave his name as Jerry Pepino, what role did he play in five males and two females in the lineup did not render the
the kidnapping of your husband? procedure irregular. There was no evidence that the police had
supplied or even suggested to Edward that the appellants were
A: Siya po bale 'yang nakayakap sa husband ko tapos the suspected perpetrators.
nakatutok ng baril.
The following exchanges at the trial during Edward's cross- A: None, sir.
examination prove this point:
Q: Without any glass cover?
ATTY. ESTURCO:
A: See-through glass window.
Q: When they were lined up at the NBI, where were they
placed, in a certain room? Q: One-way mirror?

EDWARD TAN: A: Not one way, see-through.

A: Yes, sir. Q: And before you were asked to pinpoint the alleged
kidnappers, you were already instructed by the NBI what
Q: With a glass window? One way? to do and was told who are the persons to be lined up?

A: No, sir. A: No, sir.

Q: You mean to say you were face to face with the alleged xxxx
kidnappers?
Q: And between the alleged length of time, you were still
A: Yes, sir. very positive that it was Gerry (sic) Pepino inside the NBI
cell?
Q: And before you were asked to pinpoint the persons who
allegedly kidnapped you, you conferred with the NBI agents? A: At first, I did not know that he was Jerry Pepino but we
know his face.
A: The NBI agents told me not to be afraid.
Q: At first, you did not know that it was Jerry Pepino?
Q: No, my question is, you conferred with the NBI agents?
A: Yes, sir.
A: Yes, sir.
xxxx
Q: What is the name of the NBI agent?
Q: It was the NBI officer who told you that the person is
A: I cannot remember, sir. Jerry Pepino, am I correct?

Q: And how many were lined up? A: They identified that the person we identified was Jerry
Pepino. We first pinpointed na heto ang mukha at saka
sinabi na 'yan si Jerry Pepino.
A: Seven, sir.
xx x x41
Q: And the NBI agent gave the names of each of the seven?
These exchanges show that the lineup had not been attended
A: No, sir.40 by any suggestiveness on the part of the police or the NBI
agents; there was no evidence that they had supplied or even
We also note that Jocelyn's and Edward's out-of-court suggested to either Edward or Jocelyn that the appellants were
identifications were made on the same day. While Jocelyn only the kidnappers.
identified Pepino, the circumstances surrounding this out-of-
court identification showed that the whole identification process We are not unaware that the Court, in several instances, has
at the NBI was not suggestive. To directly quote from the acquitted an accused when the out-of-court identification is
records: fatally flawed. In these cases, however, it had been clearly
shown that the identification procedure was suggestive.
ATTY. ESTURCO:
In People v. Pineda,42 the Court acquitted Rolando Pineda
Q: How about the alleged kidnappers, where were they placed because the police suggested the identity of the accused by
during that time? showing only the photographs of Pineda and his co-accused
Celso Sison to witnesses Canilo Ferrer and Jimmy Ramos.
JOCELYN TAN: According to the Court, "there was impermissible suggestion
because the photographs were only of appellant and Sison,
focusing attention on the two accused."43
A: They were in front of us.
Similarly, the Court in People v. Rodrigo44 acquitted appellant
Q: Without any cover? Lee Rodrigo since only a lone photograph was shown to the
witness at the police station. We thus held that the appellant's
in-court identification proceeded from, and was influenced by, Whether Edward and Jocelyn could have seen Pepino and
impermissible suggestions in the earlier photographic Gomez in various media fora that reported the presentation of
identification. the kidnapping suspects to the media is not for the Court to
speculate on. The records merely show that when defense
The lack of a prior description of the kidnappers in the present counsel, Atty. Caesar Esturco, asked Jocelyn during cross-
case should not lead to a conclusion that witnesses' examination whether she was aware that there were several
identification was erroneous. The lack of a prior description of kidnap-for-ransom incidents in Metro Manila, the latter
the kidnappers was due to the fact that Jocelyn (together with answered that she "can read in the newspapers."50 At no time
other members of Edward's family), for reasons not made did Jocelyn or Edward ever mention that they saw the
known in the records, opted to negotiate with the kidnappers, appellants from the news reports in print or on television.
instead of immediately seeking police assistance. If members
of Edward's family had refused to cooperate with the police, At any rate, the appellants' respective convictions in this case
their refusal could have been due to their desire not to were based on an independent in-court identification made
compromise Edward's safety.45 In the same manner, Edward, by Edward and Jocelyn, and not on the out-of-court
after he was freed, chose to report the matter to Teresita Ang identification during the police lineup. We reiterate that the
See, and not to the police. RTC and the CA found the court testimonies of these
witnesses to be positive and credible, and that there was no
Given these circumstances, the lack of prior description of the showing that their factual findings had been arrived at
malefactors in this case should not in any way taint the .arbitrarily. The in-court identification thus cured whatever
identification that Edward and Jocelyn made. irregularity might have attended the police lineup.

c. The Right to Counsel As the Court ruled in People v. Algarme:51

The right to counsel is a fundamental right and is intended to Even assuming arguendo the appellants' out-of-court
preclude the slightest coercion that would lead the accused to identification was defective, their subsequent identification in
admit something false. The right to counsel attaches upon the court cured any flaw that may have initially attended it. We
start of the investigation, i.e., when the investigating officer emphasize that the "inadmissibility of a police lineup
starts to ask questions to elicit information and/or confessions identification x x x should not necessarily foreclose the
or admissions from the accused.46 admissibility of an independent in-court identification." We also
stress that all the accused-appellants were positively identified
by the prosecution eyewitnesses during the trial.
Custodial investigation commences when a person is taken
into custody and is singled out as a suspect in the commission
of the crime under investigation.47 As a rule, a police lineup is It is also significant to note that despite the overwhelming
not part of the custodial investigation; hence, the right to evidence adduced by the prosecution, Pepino and Gomez did
counsel guaranteed by the Constitution cannot yet be invoked not even testify for their respective defenses.1âwphi1
at this stage. The right to be assisted by counsel attaches only
during custodial investigation and cannot be claimed by the d. The Presence of Conspiracy
accused during identification in a police lineup.
Conspiracy exists when two or more persons come to an
Our ruling on this point in People v. Lara48 is instructive: agreement concerning the commission of a crime and decide
to commit it. It may be proved by direct or circumstantial
x x x The guarantees of Sec. 12(1 ), Art. III of the 1987 evidence consisting of acts, words, or conduct of the alleged
Constitution, or the so-called Miranda rights, may be invoked conspirators before, during and after the commission of the
only by a person while he is under custodial investigation. felony to achieve a common design or purpose.
Custodial investigation starts when the police investigation is
no longer a general inquiry into an unsolved crime but has Proof of the agreement does not need to rest on direct
begun to focus on a particular suspect taken into custody by evidence, as the agreement may be inferred from the conduct
the police who starts the inte1Togation and propounds of the parties indicating a common understanding among them
questions to the person to elicit incriminating statements. with respect to the commission of the offense. Corollarily, it is
Police line-up is not part of the custodial investigation; hence, not necessary to show that two or more persons met together
the right to counsel guaranteed by the Constitution cannot yet and entered into an explicit agreement setting out the details of
be invoked at this stage.49 an unlawful scheme or the details by which an illegal objective
is to be carried out.52
Defense witness Reynaldo, however, maintained that Pepino
and Gomez were among those already presented to the In the present case, the records establish the following facts:
media as kidnapping suspects by the DOJ a day before the Pepino, Gomez, and another man entered Edward's office, and
police lineup was made. In this sense, the appellants were initially pretended to be customers; the three told Edward that
already the focus of the police and were thus deemed to be they were going to pay, but Pepino pulled out a gun. After
already under custodial investigation when the out-of-court Pepino' s companion took the money from the cashier's box,
identification was conducted. the malefactors handcuffed him and forced him to go down to
the parked car; Gomez sat at the front passenger seat of the
Nonetheless, the defense did not object to the in-court car which brought Edward to a safe house in Quezon City; the
identification for having been tainted by an irregular out- abductors removed the tape from Edward's eyes, placed him in
of-court identification in a police lineup. They focused, a room, and then chained his legs upon arrival at the safe
instead, on the legality of the appellants' arrests. house; the abductors negotiated with Edward's family who
eventually agreed to a P700,000.00 ransom to be delivered by
the family driver using Edward's own car; and after four days, WHEREFORE, in the light of all the foregoing, we AFFIRM the
three men and Gomez blindfolded Edward, made him board a challenged June 16, 2006 decision of the Court of Appeals in
car, drove around for 30 minutes, and left him inside his own CA-G.R. CR-HC No. 02026 with the following
car at the UP Diliman campus. MODIFICATIONS:

The collective, concerted, and synchronized acts of the (1) the penalty imposed on Gomez and Pepino shall be
accused before, during, and after the kidnapping constitute reduced from death to reclusion perpetua without eligibility for
undoubted proof that Gomez and her co-accused conspired parole;
with each other to attain a common objective, i.e., to kidnap
Edward and detain him illegally in order to demand ransom for (2) they are jointly and severally ordered to pay the
his release. reduced amount of PI00,000.00 as moral damages;

The Proper Penalty: (3) Gomez is further ordered to pay the victim
Pl00,000.00 as civil indemnity; and
Article 267 of the Revised Penal Code, as amended, mandates
the imposition of the death penalty when the kidnapping or (4) the awarded amounts shall earn interest at the
detention is committed for the purpose of extorting ransom rate of six percent (6%) per annum from the date of
from the victim or any other person. Ransom, as employed in the finality of the Court's Decision until fully paid.
the Jaw, is so used in its common or ordinary sense; meaning,
a sum of money or other thing of value, price, or consideration
paid or demanded for redemption of a kidnapped or detained SO ORDERED.
person, a payment that releases one from captivity.53

In the present case, the malefactors not only demanded but

received ransom for Edward's release. The CA thus correctly
affirmed the RTC's imposition of the death penalty on Pepino
and Gomez.

With the passage of Republic Act No. 9346, entitled ''An Act
Prohibiting the Imposition of Death Penalty in the Philippines"
(signed into law on June 24, 2006), the death penalty may no
longer be imposed. We thus sentence Gomez to the penalty of
reclusion perpetua without eligibility for parole pursuant to A.M.
No. 15-08-02-SC.54

The reduced penalty shall likewise apply to the non-appealing

party, Pepino, since it is more favorable to him.

The Awarded Indemnities:

In the case of People v. Gambao55 (also for kidnapping for

ransom), the Court set the minimum indemnity and damages
where facts warranted the imposition of the death penalty if not
for prohibition thereof by R.A. No. 9346, as follows: (1)
Pl00,000.00 as civil indemnity; (2) Pl00,000.00 as moral
damages which the victim is assumed to have suffered and
thus needs no proof; and (3) Pl00,000.00 as exemplary
damages to set an example for the public good. These
amounts shall earn interest at the rate of six percent (6%) per
annum from the date of the finality of the Court's Resolution
until fully paid.

We thus reduce the moral damages imposed by the CA from

P300,000.00 to Pl00,000.00 to conform to prevailing
jurisprudence on kidnapping cases. This reduced penalty shall
apply to Pepino for being more favorable to him. However, the
additional monetary award (i.e., P100,000.00 civil indemnity)
imposed on Gomez shall not be applied to Pepino.56

We affirm the P700,000.00 imposed by the courts below as

restitution of the amount of ransom demanded and received by
the kidnappers. We also affirm the CA's award of Pl00,000.00
as exemplary damages based on Gambao.
People v Ribadajo counsel de officio, pleaded Guilty, while the other two accused
Federico Basas and Rolando Aunor, alias Rolando Amor, alias
MELENCIO-HERRERA, J.: Rolando Anor, alias Tagalog, entered pleas of Not Guilty. 3
The Information was amended to correct the name of Rolando
Aunor to Rosendo Anor, alias Negro, alias Tagalog.
The death penalty having been imposed by the then Circuit Thereafter, evidence was adduced.
Criminal Court of Pasig, Rizal in Criminal Case No. CCC-VII-
1329-Rizal for Murder, the case is now before us for automatic
review. At the presentation of evidence for the defense, accused
Tobias Ribadajo, Romeo Corpuz, and Rodolfo Torres withdrew
their pleas of Guilty. 4 Accused Corpuz and Ribadajo also
There were originally six (6) accused: Tobias Ribadajo, Romeo denied their participation in the killing of Bernardo Cutamora,
Corpuz, Federico Basas, Rosendo Anor, Rodolfo Torres and and repudiated their confessions, claiming that they had signed
Loreto Rivera, all inmates of the New Bilibid Prison at the same under duress. Accused Federico Basas and Rodolfo
Muntinlupa, Rizal One of the however, Loreto Rivera, died Torres admitted having executed their respective confessions,
during the pendency of the case. 5 while accused Rosendo Anor changed his plea of Not Guilty
to Guilty of the lesser offense of Homicide. 6
We find the facts of the case, as narrated in the Decision of the
trial Court, home by the evidence thus: On November 28, 1974, the Trial Court pronounced a verdict
of guilty, as follows:
From the evidence on record, it is clear that on
November 18, 1971, at about 7:56 o'clock in the WHEREFORE, after determining the degree of
evening, prisoners from brigade 3-C, Muntinlupa, culpability of all the accused, namely: Tobias
Rizal succeeded in opening the door of their dormitory Ribadajo, Romeo Corpuz, Federico Basas, Rosendo
by means of a false key (tin can) and attacked the Anor and Rodolfo Torres, the Court finds them
inmates from dormitory 3-a, while the latter were then GUILTY, beyond reasonable doubt, of the crime of
getting their food rations from the delivery truck Murder, as defined under Article 248 of the Revised
wherein the victim was among them. Records further Penal Code, as charged in the information, and
show that while the victim Bernardo Cutamora, was hereby sentences each one of them to suffer the
getting his ration he was sandwiched by the accused penalty of DEATH; to indemnify the heirs of the victim
who rushed towards the door and stabbed the victim the amount of P12,000.00, jointly and severally; to
simultaneously whereby the latter sustained multiple pay moral damages in the amount of P10,000.00 and
stab wounds on the different parts of his body which another P10,000.00, as exemplary damages, jointly
wounds caused his death as evidenced by Necropsy and severally, and to pay their proportionate shares of
Report marked Exhibit 'A'. To gain exit from their the costs. 7
brigade, accused Tobias Ribadajo used a false key
(tin can) and immediately the door was opened and
his co-accused rushed towards the place where the Appellants claim infirmity of the Trial Court Decision on the
prisoners of brigade 3-a were waiting for their ration following grounds:
and with respective matalas on their hands they
stabbed the victim to death. All the assailants I
confessed participation in the killing claiming that they
did it because they were being mocked by the The Trial Court erred in admitting as evidence, and in
inmates of 3-a who were members of the OXO there giving weight to the supposed extrajudicial confession
was a time when these inmates threw human waste of the accused.
on their brigade shouting that 'you Commando
members could not do anything', and then they would
laugh at them; that in order to avenge this mockery II
the accused headed by Tobias Ribadajo called up a
meeting in the afternoon of November 18, 1971, at The Trial Court erred in finding the presence of the
around 1:00, and they planned to kill any prisoner aggravating circumstances of treachery, evident
from brigade 3-a in the evening and they would do the premeditation and recidivism.
killing at the time they (inmates from 3-a) were waiting
for their 'rancho'. Soon their plan was consummated III
and the victim, Bernardo Cutamora was the unlucky
guy overcome by their respective bladed weapons. 1
The Trial Court erred in convicting the accused and in
imposing the death penalty.
In an investigation conducted by the Investigation Section of
the New Bilibid Prisons on November 20, 1971, all the accused
executed statements admitting their participation in the slaying Appellants submit that their extrajudicial confessions were
of Bernardo Cutamora.2 Consequently, an Information for extracted by force; that they had been exposed for more or
Murder was filed against them on April 24, 1973 with the then less one day to the heat of the sun and the wetness and
Circuit Criminal Court of Pasig, Rizal. The delay in filing was coldness of the rain, and had been subsequently beaten up
due to the separation from the service of a principal and placed in a "bartolina "
investigator.
On their face, however, the individual confessions do not show
Upon arraignment on July 5, 1973, accused Tobias Ribadajo, any suspicious circumstance Casting doubt on their integrity.
Romeo Corpuz, Loreto Rivera (who died on August 15, 1974, On the contrary, they are replete with details only appellants
p. 46, Rollo), and Rodolfo Torres, all with the assistance of could have supplied. In those statements, they called their co-
accused by their nicknames, not knowing their true names, like in finding the existence of the aggravating circumstance of
"Lilat" for Basas, "Manok" for Anor and "Bukid" for Torres. The treachery, evident premeditation and recidivism.
investigators could not have concocted that on November 18,
1971, at around 1:00 P.M., appellants had planned to kill any Treachery was present because the attack on the victim was
prisoner from Brigade 3-a during the distribution of the sudden and unexpected. 19 When the inmates from Brigade 3-
"rancho"; that they are members of the Sigue-Sigue a went out to get their food ration appellants immediately
Commando Gang and their leader is accused Ribadajo; that, rushed out of their own cell and attacked, with their improvised
as planned, on the same date at around 8:00 P.M., Ribadajo weapon, the unsuspecting victim. There was a collective effort
using a false key tin can opened the door of their dormitory and on appellants' part, who were all armed, in assaulting the victim
an the accused rushed towards the place where the inmates who was unarmed, 20 and who was completely deprived of an
from Brigade 3-a were waiting for their food; that they stabbed opportunity to prepare for the attack or to defend himself, 21 or
the victim with their "matalas"; and their motive was to avenge to prepare for a fight or retreat. 22 Evident premeditation was
the throwing of human waste on them by inmates of Brigade 3- also present because the plan to kill any prisoner from Brigade
a. 3-a was hatched around 1:00 o'clock in the afternoon of
November 18, 1971, and the plan was consummated at about
What is more, during the presentation of evidence by the 8:00 in the evening of the same day. Evident premeditation is
defense, they were all admitting their guilt but for the lesser present when murder was contemplated at least one hour prior
offense of Homicide, as manifested by their de officio counsel. to its execution. 23 Appellants had ample time to desist from
the execution of the offense but they clung to their
Atty. Galvan determination to achieve their criminal intent.

Your Honor, inasmuch as I have also conferred with The aggravating circumstance of recidivism has to be
all the accused and that having appointed me as considered because all the accused at the time of the
counsel de oficio before when Fiscal Guerrero was commission of the offense, were serving their respective
here and after a long conference with the accused, sentences by virtue of a final judgment for other crimes
and if the Fiscal will not object if all the accused will embraced in the same Title of the Revised Penal Code
change their former plea of not guilty to that of guilty, (Corpuz for Homicide; Ribadajo for Murder; Basas for Murder;
as that was their proposal and they were very Anor for Murder; and Torres for Homicide).
insistent, that if the Court will allow them to withdraw
their former plea of not guilty and substitute with a No error either was committed by the Trial Court in imposing
plea of guilty to a lesser of homicide, your Honor. 8 the death penalty. The penalty for murder is reclusion temporal
in its maximum period to death. 24 Considering that appellants
Despite counsel's appeal for "humanity sake," the prosecution, committed the present felony after having been convicted by
however, opposed the change of plea because it had already final judgment and while serving their respective sentences,
finished with the presentation of its evidence. they should be punished by the maximum period of the penalty
prescribed by law for the new felony. 25 Given this
circumstance, Anor's change of plea from Guilty to Not Guilty
We find no sufficient basis, therefore, to destroy the will not change his liability besides the fact that it was made
presumption of voluntariness of appellants' confessions. The after the prosecution had rested its case. 26
presumption of the law is in favor of the spontaneity and
voluntariness of an extrajudicial confession of an accused in a
criminal case, 9 for no sane person would deliberately confess The defense contention that appellants should be held guilty
to the commission of a crime unless prompted to do so by truth only for "Death Caused in a Tumultuous Affray" and sentenced
and conscience. 10 The burden of proof is upon the declarant to prision mayor under Article 251 of the Revised Penal Code,
to destroy this presumption. 11 Mere repudiation of confession upon the allegation that the commotion was spontaneous,
by the accused at the trial is not sufficient to disregard his lacks merit. There was no confusion and tumultuous quarrel or
confession. 12 Concrete evidence of compulsion or duress affray, nor was there a reciprocal aggression between both
must be presented to sustain their claim of maltreatment. No parties. 27 Appellants rushed out of their cell with the common
such evidence has been put forward. No report of such purpose of attacking the victim of a rival group, which unity of
maltreatment was made to the prison authorities nor to the purpose indicates appellants' common responsibility for the
Fiscal who conducted the preliminary investigation. During consequences of their aggression. 28
cross-examination, Corpuz admitted that he was not
maltreated. 13 Ribadajo himself did not protest when he was WHEREFORE, the judgment of conviction is hereby
brought to Exequiel Santos, Administrative Officer III, Bureau AFFIRMED. However, for lack of the necessary votes, the
of Prisons, who, in his own words, was "like a father to me." 14 penalty to be imposed on all the accused-appellants is reduced
to reclusion perpetua. The indemnity to be paid to the heirs of
As to appellants' claim that they have not been informed of the deceased is hereby raised to P30,000.00. Proportionate
their right to silence and to counsel during custodial costs against the accused.
investigation, suffice it to state that the proscription against the
admissibility of confessions obtained from an accused during SO ORDERED.
the period of custodial interrogation, in violation of procedural
safeguards, applies to confessions obtained after the effectivity Abad Santos, Feria, Yap, Fernan, Narvasa, Alampay, Cruz and
of the 1973 Constitution. 15 No law gives the accused the right Paras, JJ., concur.
to be so informed before the enactment of the 1973
Constitution, 16 even if presented after January 17, 1973. 17
That Constitutional guaranty relative to confessions obtained Gutierrez, Jr.,* J., took no part.
during custodial investigation does not have any retroactive
effect. 18 The Trial Court committed no reversible error either