G.R. No.

217722

JOMAR ABLAZA y CAPARAS, Petitioner

vs.
PEOPLE OF THE PHILIPPINES, Respondent

DECISION

DEL CASTILLO, J.:

This Petition for Review on Certiorari assails the March 20, 2015 Decision1 of the Court of Appeals
(CA) in CA-G.R. CR No. 36343, which affirmed with modification the December 3, 2013
Judgment2 of the Regional Trial Court (RTC), Branch 75, Olongapo City in Crim. Case No. 384-10
finding Jomar Ablaza y Caparas (petitioner) and his co-accused Jay Lauzon y Parrales (Lauzon)
guilty beyond reasonable doubt of Robbery with Violence Against or Intimidation of Persons under
paragraph 5, Article 294 of the Revised Penal Code (RPC).

Factual Antecedents

Petitioner and Lauzon were charged in an Information3 which reads:

That on or about the twenty-ninth (29th) day of July, 2010, in the City of Olongapo, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating
together and mutually helping one another, with intent to gain, and by means of force and violence
against the person of Rosario S. Snyder, did then and there willfully, unlawfully, feloniously and
forcibly grab, take, steal and carry away three (3) pcs. of necklaces worth ₱43,800.00, ₱12,800.00
and ₱13,500.00. respectively, or in the total amount of ₱70, 100.00 x x x Philippine Currency,
belonging to said complainant, to her damage and prejudice.

CONTRARY TO LAW. 4

Petitioner pleaded not guilty to the charge. 5 Lauzon, who was arrested after the conclusion of the
pre-trial, also entered a plea of not guilty and adopted the pre-trial proceedings insofar as petitioner
was concerned.6 Trial then ensued.

The prosecution presented as its lone witness the victim, Rosario S. Snyder (Snyder). Snyder
narrated that at around 8:30 a.m. of June 29, 2010, she was using her cellphone 7 while walking
along Jolo Street, Barangay Barreto, Olongapo City8 when a motorcycle with two male persons on
board stopped beside her. 9 The backrider then suddenly grabbed her three necklaces: 10 one big
necklace worth ₱43,800.00 and two other necklaces each with pendants worth ₱13,500.00 and
₱12,800.00, respectively, 11 the prices of which were evidenced by the receipts issued by Eleanor
Pawnshop and Jewelry Store where she bought them. 12 Snyder further recounted that after grabbing
her necklaces, the two male persons moved a short distance 13 and then looked back at her to check
if all her necklaces were taken. Recovering from shock, Snyder managed to shout and ask for help.
A tricycle passed by and so the male persons on board the motorcycle immediately sped
away. 14 Snyder asked the tricycle driver to run after the snatchers but he unfortunately missed
them. 15 Thus, Snyder went to the Police Station to report the incident. 16

While at the police station, Snyder was shown some pictures from which she identified petitioner as
the driver of the motorcycle. 17 Snyder was certain about the identity of petitioner since she had a
good look at the robbers' faces when they looked back at her before speeding away and also
because petitioner was not wearing any helmet at that time. 18

On the same day, a policeman accompanied Snyder to the house of petitioner19 who, when asked,
denied any involvement in the snatching incident and claimed that he was asleep at that time. 20 After
a while, Snyder and the policeman discovered that Lauzon, whom Snyder earlier learned to be the
backrider,21 was also in petitioner's house hiding under the kitchen sink. 22 Unfortunately, Snyder was
not able to recover her necklaces. 23

Petitioner served as the sole witness for the defense. Petitioner claimed that on the date and time of
the incident, he and Lauzon were asleep in his house in Purok 6, Lower Kalaklan in front of Ocean
View24 since they had a drinking spree the night before.25 Petitioner only woke up26 when a policeman
arrived asking him if he was Jomar Ablaza. 27 Upon confirming that he was Jomar Ablaza, the
policeman told him that a woman wanted to see him. 28 However, upon seeing petitioner, the woman
told the policeman that he was not the one since the person she was looking for was "tisoy" with
tattoo. 29 Upon hearing this, the policeman reminded the woman that petitioner already had a record
with the police. 30 The policeman and the woman then simply left. 31 After two months, however,
petitioner was arrested in connection with this case. 32

On cross-examination, petitioner testified that he did not know Snyder prior to the alleged incident
and that he was involved in two more cases of robbery and one for theft. 33

Ruling of the Regional Trial Court

In its Judgment34 dated December 3, 2013, the RTC lent credence to Snyder's testimony for being
candid, unwavering, clear, coherent and also because she was without any improper motive to
wrongly implicate petitioner and Lauzon. The trial court also found the elements of the crime of
robbery, to wit: (1) that there is taking of personal property; (2) the personal property belongs to
another; (3) the taking is with animus lucrandi; and (4) the taking is with violence against or
intimidation of persons or force upon things, to be present, ratiocinating as follows:

There is taking for sure. The act of the accused riding in tandem [in] forcibly grabbing the necklaces
of Snyder from her neck exhibits not only animus lucrandi, but also violent taking. The accused did
not simply "snatch" the necklaces: they grabbed them from Snyder's neck. The accused ran away
with the necklaces in an arrogant display of their intention to deprive Snyder of possession and
dominion of her necklaces. And finally, the necklaces belonged to Snyder. She had receipts to prove
her ownership. She bought them at a jewelry store. 35

Petitioner and Lauzon were likewise found to have conspired with each other in committing the crime
charged.

Accordingly, the RTC adjudged petitioner and Lauzon as follows:

WHEREFORE, the court finds JAY LAUZON y FARRALES and JOMAR ABLAZA y CAPJ\R/\S guilty
beyond reasonable doubt of Robbery defined and penalized under Article 294 (5) of the Revised
Penal Code, and sentences them to each suffer the penalty of imprisonment ranging from four (4)
years and two (2) months as minimum to eight (8) years and twenty (20) days as maximum.

The accused are also ordered solidarily to pay Rosario Snyder the amount of Php70, 1 00.00 with
interest at 6% per annum until the full amount is paid; and to pay the cost of suit.
SO DECIDED. 36

Petitioner filed a Notice of Appeal 37 which was given due course in an Order38 dated December 17,
2013.

Ruling of the Court of Appeals

In his Brief,39 petitioner argued that the RTC erred in giving credence to Snyder's testimony which
was incredible and full of inconsistencies. Petitioner pointed out that it was unlikely that, after
grabbing the necklaces and speeding away, he and Lauzon would still look back at their alleged
victim, Snyder. According to him, logic and common experience dictate that they immediately leave
the crime scene and not look back. Second, Snyder herself admitted that she was shocked; hence, it
was highly unlikely that she would have the emotional stability and mental acuity to accurately
remember the robbers' facial features. Also, Snyder did not at the outset describe the physical
appearance of the persons who robbed her; instead, she identified petitioner only after she was
shown the pictures. Moreover, Snyder was looking for a mestizo who was sporting a tattoo which
thus rendered doubtful Snyder's identification of petitioner. Third, there were several inconsistencies
in the testimonies of Snyder which tended to demonstrate the fickleness of her memory. Lastly,
petitioner found it baffling why he was arrested only after two months and not immediately after a
policeman and Snyder went to his house on the day itself of the incident. To petitioner, all these cast
doubt on his supposed guilt.

Petitioner likewise argued that, even assuming he committed the acts imputed against him, the RTC
should have convicted him only of theft citing People v. Concepcion40 where the accused therein who
snatched the victim's bag was held guilty of theft and not robbery.

The CA, however, was not swayed by petitioner's asseverations and found no merit in the appeal. It 1âwphi1

saw no reason not to believe Snyder's testimony and likewise found all the elements of robbery
obtaining. In debunking petitioner's claim that the element of violence was absent, the CA stated that
the only way that the necklaces could have been taken from Snyder was through the use of violence
and physical force. The CA also concurred with the RTC's finding of conspiracy. However, it found fit
to modify the penalty decreed by the trial court and clarified that the 6% interest imposed on the
monetary award should be reckoned from the date of finality of the judgment until fully paid.

The dispositive portion of the assailed CA Decision reads:

WHEREFORE, premises considered, the appeal is hereby DENIED. The Judgment dated December
3, 2013 of the Regional Trial Court, Branch 75, Olongapo City is AFFIRMED WITH MODIFICATION
in that accused-appellant Jomar Ablaza y Caparas is sentenced to suffer imprisonment of four ( 4)
years and two (2) months of prision correccional, as minimum, to eight ( 8) years of prision mayor,
as maximum. He is further ordered to pay private complainant Rosario Snyder interest on the award
or civil liability assessed at the legal rate of six percent (6%) per annum from date or finality of this
judgment until fully paid.

SO ORDERED. 41

In view of the above, petitioner is now before this Court through this Petition for Review
on Certiorari imputing upon the CA the following errors:

X X X THE COURT OF APPEALS GRAVELY ERRED IN CONVICTING THE PETITIONER FOR

THE CRIME CHARGED DESPITE THE FACT TI-II\ THIS GUILT [HAD] NOT BEEN PROVEN
BEYOND REASONABLE DOUBT.
ASSUMING ARGUENDO THAT THE PETITIONER COMMITTED THE ALLEGED ACTS, THE
COURT or APPEALS GRAVEL y ERRED IN FINDING HIM LIABLE FOR ROBBERY INSTEAD OF
THEFT. 42

Petitioner's Arguments

Petitioner argues that the CA erred in relying on Snyder's uncorroborated testimony concerning his
identification as one of the alleged robbers. Said testimony did not inspire belief since, aside from
being highly contrary to human nature and experience, it was tainted with several inconsistencies.
Moreover, the same was insufficient to sustain petitioner's conviction. While petitioner admits that a
lone witness' testimony may be sufficient to convict an accused, this is only true when the testimony
is clear, consistent, and credible, which is not the case here. Also, while a denial cannot overcome a
positive identification of the accused, the positive identification must first come from a credible
witness and the witness's story must be believable and inherently contrived, which again is not true
in this case. These, according to petitioner, negate his guilt beyond reasonable doubt.

Even assuming that he committed the acts imputed against him, petitioner contends that he may
only be held liable for theft. He disagrees with the CA when it held that the only way that the
necklaces could be taken from Snyder was through the use of violence and physical force. Notably,
Snyder testified that her necklaces were grabbed from her. However, a necklace can be "grabbed"
and taken away without the use of violence. In fact, Snyder did not at all allege that she was pushed
or otherwise harmed by the persons who took her necklaces. In this regard, petitioner once again
invokes the ruling in Concepcion which he believes to be squarely applicable to his case.

In sum, petitioner prays that he be acquitted of the crime charged or, in the alternative, that he be
held liable only for theft.

Respondent's Arguments

In its Comment,43 Respondent People of the Philippines, through the Office of the Solicitor General
(OSG), avers that Snyder was able to positively identify petitioner as she saw the faces of the
perpetrators. This easily inspires belief as the incident happened at around 8:30 a.m. or in broad
daylight; the robbers' faces were in open view; and that they were just a short distance away from
Snyder when they looked back at her. Significantly, Snyder made the identification from the
photographs shown to her just immediately after the incident. And, despite being shown several
photographs of persons with police records, she was able to pinpoint petitioner as one of the
perpetrators. On the other hand, that Snyder was allegedly looking for a "tisoy" was a mere
allegation of petitioner. Anent the inconsistencies in Snyder's testimony, the OSG avers that the
same referred to trivial matters that did not affect her credibility. It, thus, posits that the credible and
convincing testimony of Snyder sufficiently established the identity of petitioner as one of the
perpetrators.

The OSG likewise asserts that petitioner was correctly found guilty of robbery. According to
it, Concepcion is not applicable to this case since therein, the victim testified that her shoulder bag
was snatched but no violence, intimidation, or force was used against her by the perpetrators.
However, here, Snyder testified that her necklaces were not merely snatched but grabbed from her.
Hence, violence was used upon her person. In view of these, the OSG prays for the denial of the
petition for lack of merit.

Our Ruling

There is partial merit in the petition.

"As a general rule, the Court's jurisdiction in a petition for review on certiorari under Rule 45 of the
Rules of Court is limited to the review of pure questions of law. Otherwise stated, a Rule 45 petition
does not allow the review of questions of fact because the Court is not a trier of facts."44 Notably
here, the arguments advanced by petitioner to support his contention that his guilt was not proven
beyond reasonable doubt assail Snyder's credibility as witness, specifically with respect to the
latter's identification of him as one of the perpetrators, which essentially is a question of fact. As
held, if a question posed requires the reevaluation of the credibility of witnesses, the issue is
factual. 45 And, although there are several exceptions to the rule that factual questions cannot be
passed upon in a Rule 45 petition, 46 the Court does not find the existence of any in this case. At any
rate, "[t]he assessment of credibility of witnesses is a task most properly within the domain of trial
courts."47

[T]he findings of the trial court carry great weight and respect due to the unique opportunity afforded
them to observe the witnesses when placed on the stand. Consequently, appellate courts will not
overturn the factual findings of the trial court in the absence of facts or circumstances of weight and
substance that would affect the result of the case. Said rule finds an ever more stringent application
where the said findings are sustained by the CA, as in the case at hand[.] 48

Accordingly, the Court shall not depart from the findings of the RTC as affirmed by the CA on the
matter of Snyder's credibility as witness and that of her testimony identifying petitioner as one of the
perpetrators of the crime.

Nevertheless, the Court finds that petitioner should be held liable only for theft. Indeed, the case of
People v. Concepcion49 is on all fours with the present case, viz.:

x x x Article 293 or the I Revised Penal Code (RPC)] defines robbery as a crime committed by 'any
person who, with intent to gain, shall take any personal property belonging to another, by means of
violence against or intimidation of any person, or using force upon anything.' x x x

Theft, on the other hand. is committed by any person who, with intent to gain but without violence
against or intimidation of persons nor force upon things, shall take the personal property of another
without the latter's consent. x x x

By definition in the RPC, robbery can be committed in three ways, by using: (a) violence against any
person; (b) intimidation of any person; and/or (c) force upon anything. Robbery by use of force upon
things is provided under Articles 299 to 305 of the RPC.

The main issue is whether the snatching of the shoulder bag in this case is robbery or theft. Did
Concepcion employ violence or intimidation upon persons, or force upon things, when he snatched
Acampado's shoulder bag?

In People v. Dela Cruz, this Court found the accused guilty of theft for snatching a basket containing
jewelry, money and clothing, and taking off with it, while the owners had their backs turned.

In People v. Tapang, this Court affirmed the conviction of the accused for frustrated theft because he
stole a white gold ring with diamond stones from the victim's pocket, which ring was immediately or
subsequently recovered from the accused at or about the same time it was stolen.

In People v. Omambong, the Court distinguished robbery from theft. The Court held:
Had the appellant then run away, he would undoubtedly have been guilty of theft only, because the
asportation was not effected against the owner’s will, but only without his consent; although, of
course, there was some sort of force used by the appellant in taking the money away from the
owner.

xxxx

What the record does show is that when the offended party made an attempt to regain his money,
the appellant's companion used violence to prevent his succeeding.

xxxx

The crime committed is therefore robbery and not theft, because personal violence was brought to
bear upon the offended party before he was definitely deprived of his money.

The prosecution failed to establish that Concepcion used violence, intimidation or force in snatching
Acarnpado' s shoulder bag. Acampado herself merely testified that Concepcion snatched her
shoulder bag which was hanging on her left shoulder. Acampado did not say that Concepcion used
violence, intimidation or force in snatching her shoulder bag. Given the facts, Concepcion's
snatching of Acampado's shoulder bag constitutes the crime of theft, not robbery. xx x50 (Citations
omit)

Similarly in this case, Snyder's testimony was bereft of any showing that petitioner and his co-
accused used violence or intimidation in taking her necklaces. She merely stated that the
perpetrators grabbed her necklaces without mentioning that the latter made use of violence or
intimidation in grabbing them, viz.:

Q: Do you recall any untoward incident that happened while walking on [July 29, 2010]?

A: Yes, sir.

Q: What is that incident'?

A: Suddenly somebody approached me and took my necklace.

xxxx

Q: Can you tell us how these two persons approached you?

A: While I was walking, a motorcycle stopped[,] xx x [on board it were] the driver and a backrider.

Q: Where did this motorcycle stop?

A: [Beside] me.

Q: In front of you or beside you?

A: [Beside] me.

xxxx
Q: How did these persons grab your necklace?

A: They suddenly grabbed my necklace and I was shocked. 51

The OSG argues that the use of the word "grabbed", by itself, shows that violence or physical force
was employed by the offenders in taking Snyders' necklaces. The Court, however, finds the
argument to be a pure play of semantics. Grab means to take or seize by or as if by a sudden
motion or grasp; to take hastily. 52 Clearly, the same does not suggest the presence of violence or
physical force in the act; the connotation is on the suddenness of the act of taking or seizing which
cannot be readily equated with the employment of violence or physical force. Here, it was probably
the suddenness of taking that shocked Snyder and not the presence of violence or physical force
since, as pointed out by petitioner, Snyder did not at all allege that she was pushed or otherwise
harmed by the persons who took her necklaces.

Besides, the use of force is not an element of the crime of simple robbery committed under
paragraph 5, Article 294 of the RPC.

The crime of robbery is found under Chapter One, Title Ten [Crimes Against Property] of the RPC.
Chapter One is composed of two sections, to wit: Section One - Robbery with violence against or
intimidation of persons; and Section Two - Robbery by the use of force upon things.

Robbery in general is defined under Article 293 of the RPC as follows:

Art. 293. Who are guilty of robbery. - Any person who, with intent to gain, shall take any personal
property belonging to another, by means of violence against or intimidation of any person, or using
force upon anything, shall be guilty of robbery.

"The elements of robbery are thus: (1) there is taking of personal property; (2) the personal property
belongs to another; (3) the taking is with animus lucrandi; and (4) the taking is with violence
against or intimidation of persons or with force upon things."53

Note that while the fourth requisite mentions "with violence against or intimidation of persons" or
"force upon things", only the phrase "with violence against or intimidation of persons" applies to the
kinds of robbery falling under Section One, Chapter One, Title Ten of the RPC. The phrase "with
force upon things", on the other hand, applies to the kinds of robbery provided under Section Two
thereof.

As mentioned, the RTC convicted petitioner of simple robbery under paragraph 5, Article 294, which
article falls under Section One. Article 294 provides:

ART 294. Robbery with violence against or intimidation of persons. - Penalties. - Any person guilty of
robbery with use of violence against or intimidation of any person shall suffer:

1. The penalty of from reclusion perpetua to death, when by reason or on occasion of the robbery,
the crime of homicide, shall have been committed; or when the robbery shall have been
accompanied by rape or intentional mutilation or arson.

2. The penalty of reclusion temporal in its medium period to reclusion perpetua, when or if by reason
or on occasion of such robbery, any of the physical injuries penalized in subdivision 1 of Article 263
[Serious Physical Injuries] shall have been inflicted.
3. The penalty or reclusion temporal when by reason or on occasion of the robbery any of the
physical injuries penalized in subdivision 2 of the article mentioned in the next preceding paragraph,
shall have been inflicted.

4. The penalty of prision mayor in its maximum period to reclusion temporal in its medium period, if
the violence or intimidation employed in the commission or the robbery shall have been carried to a
degree clearly unnecessary for the commission of the crime, or when in the course of its execution,
the offender shall have inflicted upon any person not responsible for its commission any of the
physical injuries covered by subdivisions 3 and 4 of said Article 263.

5. The penalty of prision correccional in its maximum period to prision mayor in its medium
period in other cases.

Hence, in determining the existence of the fourth requisite in cases of simple robbery under Article
294, courts should look into whether the taking of personal property is with violence against or
intimidation of persons and not on whether there was force.

Now, on how to construe the phrase ''by means of violence against or intimidation of persons" as
used in Article 294, the case of People v. Judge Alfeche, Jr. 54 is enlightening:

Accordingly, the phrase ·by means of violence against or intimidation of persons· in Article 312 must
be construed to refer to the same phrase used in Article 294. There are five classes of robbery under
the latter, namely: (a) robbery with homicide (par. 1); (b) robbery with rape, intentional mutilation. or
the physical injuries penalized in subdivision 1 of Article 263 (par. 2): (c) robbery with physical
injuries penalized in subdivision 2 of Article 26) (par. 3): (d) robbery committed with unnecessary
violence or with physical injuries covered by subdivisions 3 and 4 of Article 263 (par. 4); and (e)
robbery in other cases, or simply robbery (par. 5), where the violence against or intimidation of
persons cannot be subsumed by or where it is not sufficiently specified so as to fall under, the first
four paragraphs.

Paragraphs one to four Article 294 indisputably involve the use of violence against persons. The
actual physical force inflicted results in death, rape, mutilation or the physical injuries therein
enumerated. The simple robbery under paragraph five may cover physical injuries not
included in paragraphs two to four. Turns, when less serious physical injuries or slight
physical injuries arc inflicted upon the offended party on the occasion of a robbery, the
accused may be prosecuted for and convicted of robbery under paragraph five.

It seems obvious that intimidation is not encompassed under paragraphs one to four since no actual
physical violence is inflicted; evidently then, it can only fall under paragraph five.

But what is meant by the word intimidation? It is defined in Black's Law Dictionary as 'unlawful
coercion; extortion; duress; putting in fear'. To take, or attempt to take, by intimidation means 'wilfully
to take, or attempt to take, by putting in fear of bodily harm." As shown in United States vs.
Osorio material violence is not indispensable for there to be intimidation, intense fear produced in
the mind of the victim which restricts or hinders the exercise of the wi11 is sufficient. x x x55

Clearly, for the requisite of violence to obtain in cases of simple robbery, the victim must have
sustained less serious physical injuries or slight physical injuries in the occasion of the robbery. Or,
as illustrated in the book of Justice Luis B. Reyes, The Revised Penal Code (Book Two), there
should be some kind of violence exerted to accomplish the robbery, as when:
Snatching money from the hands of the victim and pushing her to prevent her from recovering the
seized property.

xxxx

Where there is nothing in the evidence to show that some kind of violence had been exerted to
accomplish the snatching, and the offended party herself admitted that she did not feel anything at
the time her watch was snatched from her left wrist the crime committed is not robbery but only on
simple theft. 56

In this case, Snyder did not sustain any kind of injury at all. And as already mentioned, her testimony
was bereft of any showing that violence was used against her by petitioner and his co-accused in
that she was pushed, or otherwise harmed on the occasion of the robbery. While one can only
imagine how pulling three necklaces at the same time from the victim's neck could not have caused
any mark, bruise, or pain to the latter, suffice it to state that such a matter must have been
adequately proved by the prosecution during trial as the Court cannot rely on mere assumptions,
surmises, and conjectures especially when it is the life and liberty of the petitioner which is at stake.

As to intimidation, its non-existence in this case is not in dispute. And even if otherwise, the Court
will just the same rule against it. Per the victim's testimony, the act of the perpetrators in grabbing
her necklace was so sudden. Hence, it could not have produced fear or duress in the victim's mind
as to deprive her of the exercise of her wi11.

"Fundamental is the precept in all criminal prosecutions, that the constitutive acts of the offense must
be established with unwavering exactitude and moral certainty because this is the critical and only
requisite to a finding of guilt."57 Here, the fourth requisite of the crime of robbery is not obtaining
considering that the prosecution failed to sufficiently establish that the taking of the necklaces was
with violence against or intimidation of persons. Accordingly, petitioner must be held liable only for
the crime of theft, not robbery.

Under Article 309(3) of the RPC as amended by Republic Act No. 10951,58 any person guilty of theft
shall be punished by the penalty of prision correccional in its minimum and medium periods, if the
value of the property stolen is more than ₱20,000.00 but does not exceed ₱600,000.00. Since
petitioner is guilty of the crime of theft of property valued at P70, 100.00 and, in the absence of any
mitigating or aggravating circumstance, the maximum term of the penalty should be within the range
of one (1) year, eight (8) months and twenty-one (21) days to two (2) years, eleven (11) months and
ten (10) days of prision correccional. Applying the Indeterminate Sentence Law, the minimum term
of the penalty shall be within the range of the penalty next lower to that prescribed by the RPC for
the crime, which is arresto mayor in its medium and maximum periods which ranges from two (2)
months and one (1) day to six (6) months. For this reason, the Court imposes upon petitioner the
indeterminate penalty of six (6) months of arresto mayor as minimum, to two (2) years, eleven (11)
months and ten (10) days of prision correccional as maximum.

WHEREFORE, the Petition for Review on Certiorari is PARTIALLY GRANTED. The assailed March
20, 2015 Decision of the Court of Appeals in CA-G.R. CR No. 36343, which affirmed with
modification the December 3, 2013 Judgment of the Regional Trial Court, Branch 75, Olongapo City
in Criminal Case No. 384-10 finding petitioner Jomar Ablaza y Caparas guilty beyond reasonable
doubt of Robbery with Violence Against or Intimidation of Persons under paragraph 5, A1iicle 294 of
the Revised Penal Code, is MODIFIED in that he is instead found GUILTY beyond reasonable doubt
of the crime of THEFT and sentenced to suffer the indeterminate penalty of six (6) months of arresto
mayor as minimum, to two (2) years, eleven (11) months and ten ( 10) days of prision
correccional as maximum.
SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

TERESITA J. LEONARDO-DE CASTRO

Chief Justice

(On official leave)

LUCAS P. BERSAMIN
FRANCIS H. JARDELEZA
Associate Justice
Associate Justice

NOEL GIMENEZ TIJAM

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.

TERESITA J. LEONARDO-DE CASTRO

Chief Justice

G.R. No. 150873 February 10, 2009

ZENAIDA V. SAZON, Petitioner,

vs.
SANDIGANBAYAN (Fourth Division), Respondent.

DECISION

NACHURA, J.:

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking
to nullify the Decision1 of the Sandiganbayan, dated July 26, 2001, in Criminal Case No. 18257,
finding the petitioner Zenaida V. Sazon guilty beyond reasonable doubt of Robbery
Extortion.2 Likewise assailed is the Sandiganbayan’s Resolution3 dated November 16, 2001 denying
petitioner’s motion for reconsideration.

The facts, as established by the evidence presented, are as follows:

Petitioner was a Senior Forest Management Specialist of the Department of Environment and
Natural Resources (DENR), National Capital Region (NCR).4 On September 24, 1992, the DENR-
NCR issued Travel Order No. 09-92-409 directing the petitioner and a certain Carlos Gubat I (Gubat)
to proceed to Karuhatan and Navotas, both in Metro Manila, to perform the following:

1. To investigate [an] intelligence report on the alleged arrival of illegal shipment of poles and
piles to Navotas, Metro Manila; and

2. [To] verify illegal resaw operation of Honway Lumber, Karuhatan, Metro Manila.5

On September 25, 1992, petitioner and her team, composed of Gubat and Forester Nemesio
Ricohermoso, conducted a surveillance in Karuhatan and Navotas. While looking for the office of
Vifel Shipyard, subject of the travel order, the team chanced upon the R&R Shipyard (R&R) and
asked from the lady guard for Mr. Rodrigo Opena (Mr. Opena), the Operations Manager.6 As the
petitioner knew Mr. Opena, the former wanted to inquire from the latter where Vifel Shipyard was.7 In
the course of their conversation with the lady guard, the team spotted squared logs, which they
claimed to be "dungon" logs piled at the R&R compound. Upon a closer look, the team noticed that
the squared logs were mill-sawn and bore hatchet marks with a number indicating inspection by the
DENR. Since "dungon" logs were banned species, the team asked for the pertinent documents
relative thereto. However, the same could not be produced at that time; hence, they decided to
return on October 1.8

On October 1, 1992, petitioner and her team returned to R&R to check the necessary documents
they were looking for. Yet again, Mr. Opena could not produce the documents as they were then
allegedly in the possession of the auditing section of their main office. Petitioner insisted that the
subject logs were banned species and, thus, threatened Mr. Opena that he could be arrested and
that the logs could be confiscated. Mr. Opena, however, claimed that the logs that were seen by the
petitioner were "yakal" and "tangile" and not "dungon."9

On October 7, 1992, Atty. Teresita Agbi, the lawyer of R&R, met with the petitioner to talk about the
subject logs. Petitioner instructed Atty. Agbi to proceed to the bakeshop at the ground floor of the
former’s office.10 There, Atty. Agbi informed the petitioner that she had in her possession the receipts
covering the subject logs; but the latter averred that the receipts were not sufficient as there were
additional requirements11 to be submitted. Believing that Atty. Agbi could not produce the required
documents, petitioner initially demanded the payment of ₱300,000.00 if no papers would be
submitted; ₱200,000.00 if incomplete; and ₱100,000.00 if the papers were complete.12

On October 13, 1992, petitioner made a final demand of ₱100,000.00 in exchange for the favor of
"fixing" the papers of the alleged "hot logs." She even offered Atty. Agbi ₱25,000.00 as her share in
the amount.13 Atty. Agbi reported the matter to the police. Consequently, an entrapment operation
against the petitioner was planned wherein Atty. Agbi would agree to pay ₱100,000.00 to settle the
issue with the petitioner.14

On October 14, 1992, the day of the scheduled entrapment operation, Atty. Agbi, together with
Senior Police Officer 1 Edwin Anaviso (SPO1 Anaviso), SPO1 Pablo Temena (SPO1 Temena) and
SPO2 Renato Dizon (SPO2 Dizon) went to the Max’s Restaurant in EDSA, Caloocan City, where
they would meet the petitioner.15 Upon seeing Atty. Agbi, petitioner instructed the former to drop the
envelope containing the money in the taxicab parked outside. Atty. Agbi, however, could not comply
since her ₱25,000.00 commission had not yet been segregated from the ₱100,000.00. Petitioner
thus offered to segregate it at the ladies’ room.16 As soon as Atty. Agbi handed over the envelope
containing the money, petitioner placed her wallet and handkerchief inside the envelope;17 then
SPO2 Dizon immediately accosted and handcuffed the petitioner while SPO1 Temena took pictures
of the incident.18

Petitioner, for her part, denied the above accusation. She averred that it was in fact Atty. Agbi who
proposed the settlement which she, however, rejected. When offered a brown envelope containing
money, petitioner allegedly stood up and prepared to leave, but a man came from nowhere and
immediately handcuffed her while another man took pictures.19

At about 11 o’clock in the evening, petitioner was brought to the assistant prosecutor for
inquest.20 Thereafter, an Information for Robbery Extortion was filed against the petitioner, the
accusatory portion of which reads:

That on or about October 14, 1992, in Kalookan City, Metro Manila and within the jurisdiction of this
Honorable Court, the above-named accused, a public officer, being then the supervisor of the
Department of Environment and Natural Resources (D[E]NR), taking advantage of her public
position and which offensed (sic) was committed in relation to her office, by means of intimidation
and with intent to gain, did then and there willfully, unlawfully and feloniously demand, take and
extort from the IRMA FISHING & TRADING COMPANY as represented herein by ATTY. TERESITA
A. AGBI, the amount of ₱100,000.00 to prevent the confiscation of more or less thirty (30) pcs. of
logs, which are found in the compound of RNR Marine Inc., purportedly for unauthorize[d]
possession of the said logs, and belonging to the said Irma Fishing & Trading Company, to the
damage and prejudice of the said owner in the aforementioned amount of ₱100,000.00.

CONTRARY TO LAW.21

Upon arraignment, petitioner entered a plea of "Not Guilty."22

After trial on the merits, the Sandiganbayan rendered a Decision23 convicting the petitioner of the
crime of robbery extortion. The dispositive portion of the assailed decision is quoted hereunder:

WHEREFORE, the accused, ZENAIDA SAZON y VENTURA, is hereby found GUILTY beyond
reasonable doubt of the crime of ROBBERY EXTORTION, defined under Article 293, and penalized
under paragraph 5, Article 294 (as amended by Section 9, Republic Act No. 7659) both of the
Revised Penal Code, and, there being no aggravating or mitigating circumstance that attended the
commission of the crime, she is hereby sentenced, under the Indeterminate Sentence Law, to suffer
the penalty of imprisonment of from Two (2) Years and Three (3) Months of prision correccional, as
minimum, to Seven (7) Years of prision mayor, as maximum, and to pay the costs.

SO ORDERED.24

The court found that the elements of robbery with intimidation were established by the
prosecution.25 It was pointed out that if the interest of petitioner was merely the submission by R&R
of the required documents, she should have required that they meet at her office and not at a
restaurant.26 Her liability, said the court, was not negated by the eventual admission of Irma Fishing
and Trading Co. that the required documents could not be produced.27

Hence, the instant petition on the following grounds:

I. WITH DUE RESPECT, THE RESPONDENT COURT GRAVELY ERRED IN CONCLUDING THAT
THE VERSION OF THE PROSECUTION TENDS TO SHOW THAT ALL THE ELEMENTS OF THE
CRIME OF ROBBERY WITH INTIMIDATION ARE PRESENT.
II. WITH DUE RESPECT, THE RESPONDENT COURT GRAVELY ERRED IN FINDING THE
ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED.28

Apart from the instant criminal case, the DENR filed an administrative complaint against the
petitioner for grave misconduct in the performance of official duty, but the same was dismissed for
lack of interest on the part of the complainant. Another administrative case was filed before the
Office of the Ombudsman, but the same was likewise dismissed.29

Petitioner’s insistence on her acquittal of the crime of robbery with intimidation hinges on the alleged
absence of the elements of the crime. She specifically questions the Sandiganbayan’s conclusion
that she employed intimidation in order to extort ₱100,000.00 from R&R. Petitioner strongly doubts
that the threat of confiscation of the subject logs created fear in the mind of R&R or its employees.
Absent such element, says the petitioner, her exoneration is clearly indicated.30

We do not agree with the petitioner.

In appeals to this Court from the Sandiganbayan, only questions of law may be raised, not issues of
fact. The factual findings of the Sandiganbayan are binding upon this Court.31 The Supreme Court
should not be burdened with the task of re-examining the evidence presented during the trial of the
case. This rule, however, admits of exceptions, to wit: 1) when the conclusion is a finding grounded
entirely on speculation, surmise or conjectures; 2) the inference made is manifestly mistaken; 3)
there is grave abuse of discretion on the part of the lower court or agency; 4) the judgment is based
on a misapprehension of facts; 5) said findings of fact are conclusions without citation of specific
evidence on which they are based; and 6) the findings of fact of the Sandiganbayan are premised on
an absence of evidence on record.32 However, we find no reason to disturb the factual findings of the
Sandiganbayan, as none of these exceptions is present in this case.

Petitioner was charged with robbery defined and penalized under Articles 29333 and 294(5)34 of the
Revised Penal Code (RPC), otherwise known as simple robbery. Simple robbery is committed by
means of violence against or intimidation of persons.35 The elements of robbery as defined in Article
293 of the RPC are the following: a) that there is personal property belonging to another; b) that
there is unlawful taking of that property; c) that the taking is with intent to gain; and d) that there is
violence against or intimidation of persons or force upon things.36

Indeed, the prosecution adequately established the above elements.

As to what was taken, it is undisputed that petitioner demanded and eventually received from R&R
₱100,000.00, a personal property belonging to the latter. The amount was placed inside a brown
envelope and was given to petitioner while inside Max’s Restaurant in EDSA, Caloocan City.

As to how the money was taken, it was proven that ₱100,000.00 was unlawfully taken by the
petitioner from R&R, with intent to gain and through intimidation. In robbery, there must be an
unlawful taking or apoderamiento, which is defined as the taking of items without the consent of the
owner, or by means of violence against or intimidation of persons, or by using force upon
things.37 Taking is considered complete from the moment the offender gains possession of the thing,
even if he has no opportunity to dispose of the same. In the instant case, it was adequately proven
that petitioner received and took possession of the brown envelope containing the money; she even
placed her wallet and handkerchief inside the envelope. At that point, there was already "taking."

As a public officer employed with the DENR, petitioner was tasked to implement forestry laws, rules
and regulations. Specifically, she had the power to make reports on forestry violations which could
result in the eventual confiscation of logs if the possession thereof could not be justified by the
required documents; and the prosecution of violators thereof. Undoubtedly, petitioner could not
demand and eventually receive any amount from private persons as a consideration for the former’s
non-performance of her lawful task. More so, in the instant case where the petitioner threatened the
complainants with possible confiscation of the logs and prosecution if they would not accede to her
demand for ₱100,000.00. Under such circumstances, the eventual receipt of the said amount by the
petitioner makes the taking "unlawful."

To constitute robbery, the taking should be accompanied by intent to gain. Intent to gain, or animus
lucrandi, as an element of the crime of robbery, is an internal act; hence, presumed from the
unlawful taking of things.38 Actual gain is irrelevant as the important consideration is the intent to
gain.39 Having established that the amount of ₱100,000.00 was unlawfully taken by the petitioner
from R&R for her personal benefit, intent to gain was likewise proven.

Lastly, we agree with the Sandiganbayan that petitioner employed intimidation in order to obtain the
amount of ₱100,000.00 from R&R.

Intimidation is defined in Black’s Law Dictionary as unlawful coercion; extortion; duress; putting in
fear.40 In robbery with intimidation of persons, the intimidation consists in causing or creating fear in
the mind of a person or in bringing in a sense of mental distress in view of a risk or evil that may be
impending, real or imagined. Such fear of injury to person or property must continue to operate in the
mind of the victim at the time of the delivery of the money.41

Applying this principle to the pertinent facts of the instant case, it is noteworthy that: On September
25, 1992, petitioner discovered the questioned logs and asked that the supporting documents be
shown; on October 1, she formally demanded the submission of the required documents; on October
7, she demanded payment of a particular sum of money while offering to "fix" the problem; on
October 13, she made the final demand; and on October 14, the representatives of R&R parted with
their ₱100,000.00. While it appears that initially, petitioner only demanded the submission of the
supporting documents to show that R&R’s possession of the subject logs was legal, she agreed to
talk about the matter outside her office. This circumstance alone makes her intentions highly
suspect. The same was confirmed when petitioner eventually demanded from R&R the payment of a
particular sum of money, accompanied by threats of prosecution and confiscation of the logs. 1avv phi 1

From the foregoing, and in light of the concept of intimidation as defined in various jurisprudence, we
find and so hold that the ₱100,000.00 "grease money" was taken by the petitioner from R&R’s
representatives through intimidation. By using her position as Senior Management Specialist of the
DENR, petitioner succeeded in coercing the complainants to choose between two alternatives: to
part with their money, or suffer the burden and humiliation of prosecution and confiscation of the
logs.

Indeed, this Court had, in a number of cases involving substantially the same factual milieu as in the
present case, convicted the accused of the crime of robbery with intimidation. These include the
early cases of People v. Francisco42 and United States v. Sanchez,43 and the more recent cases of
Fortuna v. People44 and Pablo v. People.45

In People v. Francisco, the accused, who was then a sanitary inspector in the Philippine Health
Service, discovered during an inspection of the merchandise in Sy Ham’s store that the lard was
unfit for consumption. He then demanded from Sy Ham the payment of ₱2.00 with threats of
prosecution and arrest. For fear of being arrested, prosecuted, and convicted, Sy Ham immediately
paid the amount demanded.
In United States v. Sanchez, two police officers demanded from a Chinese, who allegedly violated
the Opium Law, ₱500.00, accompanied by threats to take him before the proper authorities and
have him prosecuted. For fear of being sent to prison for a long term, the Chinese paid a negotiated
amount of ₱150.00

In Fortuna v. People and Pablo v. People, three policemen frisked Diosdada and Mario Montecillo,
and accused the latter of illegal possession of a deadly weapon. The policemen threatened Mario
that he would be brought to the police station where he would be interrogated by the police, mauled
by other prisoners and heckled by the press. The apprehending policemen took from Mario
₱1,000.00. They likewise rummaged Diosdada’s bag where they found and eventually pocketed
₱5,000.00. They further demanded from Diosdada any piece of jewelry that could be pawned.
Thereafter, the two were released by the policemen.

In all of the above cases, the Court was convinced that there was sufficient intimidation applied by
the accused on the offended parties inasmuch as the acts of the accused engendered fear in the
minds of their victims and hindered the free exercise of their will.

As in the aforesaid cases, petitioner herein was a public officer who, in the performance of her
official task, discovered the subject logs which she claimed to be banned species. By reason of said
discovery, she had the power to bring the offenders to the proper authorities. As such public officer,
she abused her authority and demanded from the offenders the payment of a particular sum of
money, accompanied by an assurance that the latter would no longer be prosecuted. Eventually,
money was given to the petitioner. We, therefore, find no reason to depart from the above
conclusion.

We would like to stress that the Constitution guarantees that in all criminal prosecutions, the
accused shall be presumed innocent until the contrary is proved. This means proving the guilt of the
accused beyond reasonable doubt. Reasonable doubt is present when, after the comparison and
consideration of all the evidence adduced, the minds of the judges are left in a condition that they
cannot say they feel an abiding conviction, a moral certainty, of the truth of the charge, a certainty
that convinces and directs the understanding, and satisfies the reason and judgment of those who
are bound to act conscientiously upon it.46 To be sure, proof beyond reasonable doubt does not
demand absolute certainty and the exclusion of all possibility of error.47

We find, however, that the Sandiganbayan failed to appreciate the aggravating circumstance of
"abuse of public position."48 The fact that petitioner was Senior Forest Management Specialist of the
DENR situated her in a position to perpetrate the offense. It was on account of petitioner’s authority
that the complainants believed that they could be prosecuted and the subject logs confiscated
unless they gave her what she wanted. Consequently, we find that a modification of the penalty
imposed by the Sandiganbayan is in order.

Article 294(5) of the RPC fixes the penalty for simple robbery at prision correccional in its maximum
period to prision mayor in its medium period, the range of which is from four (4) years, two (2)
months and one (1) day to ten (10) years. Considering the aggravating circumstance of abuse of
public position, the penalty should be imposed in its maximum period; and applying the
Indeterminate Sentence Law, the same should likewise be the maximum term of the indeterminate
penalty. The minimum term, on the other hand, shall be taken from the penalty next lower in degree
which is arresto mayor maximum to prision correccional medium in any of its periods, the range of
which is four (4) months and one (1) day to four (4) years and two (2) months.49

WHEREFORE, premises considered, the petition is DENIED. The Decision of the Sandiganbayan,
dated July 26, 2001, and its Resolution dated November 16, 2001 in Criminal Case No. 18257, are
AFFIRMED WITH THE MODIFICATION that petitioner Zenaida V. Sazon is sentenced to the
indeterminate penalty of Two (2) Years, Ten (10) Months and Twenty-One (21) Days of prision
correccional, as minimum, to Eight (8) Years and Twenty-One (21) Days of prision mayor, as
maximum.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

G.R. No. 206442 July 1, 2015

JOVITO CANCERAN, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari seeking to reverse and set aside the August 10, 2012
Decision1 and the March 7, 2013 Resolution2 of the Court of Appeals (CA), in CA-G.R. CR No.
00559, which affirmed and modified the September 20, 2007 Judgment3 of the Regional Trial Court,
Branch 39, Misamis Oriental, Cagayan de Oro City (RTC), in Criminal Case No. 2003-141,
convicting petitioner Jovito Canceran (Canceran) for consummated Theft.

The records disclose that Canceran, together with Frederick Vequizo and Marcial Diaz, Jr., was
charged with "Frustrated Theft." The Information reads:

That on or about October 6, 2002, at more or less 12:00 noon, at Ororama Mega Center Grocery
Department, Lapasan, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, Jovito Canceran, conspiring, confederating together and mutually
helping one another with his co-accused Frederick Vequizo, URC Merchandiser, and Marcial Diaz,
Jr., a Unilever Philippines merchandiser both of Ororama Mega Center, with intent to gain and
without the knowledge and consent of the owner thereof, did then and there wilfully, unlawfully and
feloniously take, steal and carry away 14 cartons of Ponds White Beauty Cream valued at
₱28,627,20, belonging to Ororama Mega Center, represented by William Michael N. Arcenio, thus,
performing all the acts of execution which would produce the crime of theft as a consequence but,
nevertheless, did not produce it by reason of some cause independent of accused’s will, that is, they
were discovered by the employees of Ororama Mega Center who prevented them from further
carrying away said 14 cartons of Ponds White Beauty Cream, to the damage and prejudice of the
Ororama Mega Center.

Article 308 in relation to Article 309, and 6 of the Revised Penal Code.4

Version of the Prosecution

To prove the guilt of the accused, the prosecution presented Damalito Ompoc (Ompoc),a security
guard; and William Michael N. Arcenio (Arcenio), the Customer Relation Officer of Ororama Mega
Center (Ororama),as its witnesses. Through their testimonies, the prosecution established that on or
about October 6, 2002, Ompoc saw Canceran approach one of the counters in Ororama; that
Canceran was pushing a cart which contained two boxes of Magic Flakes for which he paid
₱1,423.00; that Ompoc went to the packer and asked if the boxes had been checked; that upon
inspection by Ompoc and the packer, they found out that the contents of the two boxes were not
Magic Flakes biscuits, but 14 smaller boxes of Ponds White Beauty Cream worth ₱28,627.20; that
Canceran hurriedly left and a chase ensued; that upon reaching the Don Mariano gate, Canceran
stumbled as he attempted to ride a jeepney; that after being questioned, he tried to settle with the
guards and even offered his personal effects to pay for the items he tried to take; that Arcenio
refused to settle; and that his personal belongings were deposited in the office of Arcenio.5

Version of the Defense

Canceran vehemently denied the charges against him. He claimed that he was a promo
merchandiser of La Tondeña, Inc. and that on October 6, 2002, he was in Ororama to buy
medicinefor his wife. On his way out, after buying medicine and mineral water, a male person
ofaround 20 years of age requested him to pay for the items in his cart at the cashier; that he did not
know the name of this man who gavehim ₱1,440.00 for payment of two boxes labelled Magic
Flakes; that he obliged with the request of the unnamed person because he was struck by his
conscience; that he denied knowing the contents of the said two boxes; that after paying at the
cashier, he went out of Ororama towards Limketkai to take a jeepney; that three persons ran after
him, and he was caught; that he was brought to the 4th floor of Ororama, where he was mauled and
kicked by one of those who chased him; that they took his Nokia 5110 cellular phone and cash
amounting to ₱2,500.00; and that Ompoc took his Seiko watch and ring, while a certain Amion took
his necklace.6

Canceran further claimed that an earlier Information for theft was already filed on October 9,2002
which was eventually dismissed. In January 2003, a second Information was filed for the same
offense over the same incident and became the subject of the present case.7

The Ruling of the Regional Trial Court

In its Judgment, dated September 20, 2007, the RTC found Canceran guilty beyond reasonable
doubt of consummated Theft in line with the ruling of the Court in Valenzuela v. People8 that under
Article 308 of the Revised Penal Code (RPC),there is no crime of "Frustrated Theft." Canceran was
sentenced to suffer the indeterminate penalty of imprisonment from ten (10) years and one (1) day to
ten (10) years, eight (8) months of prision mayor, as minimum, to fourteen (14) years, eight (8)
months of reclusion temporal, as maximum.9

The RTC wrote that Canceran’s denial deserved scant consideration because it was not supported
by sufficient and convincing evidence and no disinterested witness was presented to corroborate his
claims. As such, his denial was considered self-serving and deserved no weight. The trial court was
also of the view that his defense, that the complaint for theft filed against him before the sala of
Judge Maximo Paderanga was already dismissed, was not persuasive. The dismissal was merely a
release order signed by the Clerk of Court because he had posted bail.10

The Ruling of the Court of Appeals

Aggrieved, Canceran filed an appeal where he raised the issue of double jeopardy for the first time.
The CA held that there could be no double jeopardy because he never entered a valid plea and so
the first jeopardy never attached.11

The CA also debunked Canceran’s contention that there was no taking because he merely pushed
the cart loaded with goods to the cashier’s booth for payment and stopped there. The appellate court
held that unlawful taking was deemed complete from the moment the offender gained possession of
the thing, even if he had no opportunity to dispose of the same.12

The CA affirmed with modification the September 20, 2007 judgment of the RTC, reducing the
penalty ranging from two (2) years, four (4) months and one (1) day of prision correccional, as
minimum, to eight (8) years, eight (8) months and one (1) day of prision mayor, as maximum.
Canceran moved for the reconsideration of the said decision, but his motion was denied by the CA in
its March 7, 2013 resolution.

Hence, this petition.

As can be synthesized from the petition and other pleadings, the following are the issues: 1] whether
Canceran should be acquitted in the crime of theft as it was not charged in the information; and 2]
whether there was double jeopardy.

Canceran argues that the CA erred in affirming his conviction. He insists that there was already
double jeopardy as the first criminal case for theft was already dismissed and yet he was convicted
in the second case. Canceran also contends that there was no taking of the Ponds cream
considering that "the information in Criminal Case No. 2003-141 admits the act of the petitioner did
not produce the crime of theft."13 Thus, absent the element of taking, the felony of theft was never
proved.

In its Comment,14 the Office of the Solicitor General (OSG)contended that there was no double
jeopardy as the first jeopardy never attached. The trial court dismissed the case even before
Canceran could enter a plea during the scheduled arraignment for the first case. Further, the
prosecution proved that all the elements of theft were present in this case.

In his Reply,15 Canceran averred that when the arraignment of the first case was scheduled, he was
already bonded and ready to enter a plea. It was the RTC who decided that the evidence was
insufficient or the evidence lacked the element to constitute the crime of theft. He also stressed that
there was no unlawful taking as the items were assessed and paid for.

The Court's Ruling

The Court finds the petition partially meritorious.

Constitutional Right of the

Accused to be Informed of
the Nature and Cause of
Accusation against Him.

No less than the Constitution guarantees the right of every person accused in a criminal prosecution
to be informed of the nature and cause of accusation against him.16 It is fundamental that every
element of which the offense is composed must be alleged in the complaint or information. The main
purpose of requiring the various elements of a crime to be set out in the information is to enable the
accused to suitably prepare his defense. He is presumed to have no independent knowledge of the
facts that constitute the offense.17

Under Article 308 of the RPC, the essential elements of theft are (1) the taking of personal property;
(2) the property belongs to another; (3) the taking away was done with intent of gain; (4) the taking
away was done without the consent of the owner; and (5) the taking away is accomplished without
violence or intimidation against person or force upon things. "Unlawful taking, which is the
deprivation of one’s personal property, is the element which produces the felony in its consummated
stage. At the same time, without unlawful taking as an act of execution, the offense could only be
attempted theft, if at all."18

"It might be argued, that the ability of the offender to freely dispose of the property stolen delves into
the concept of ‘taking’ itself, in that there could be no true taking until the actor obtains such degree
of control over the stolen item. But even if this were correct, the effect would be to downgrade the
crime to its attempted, and not frustrated stage, for it would mean that not all the acts of execution
have not been completed, the "taking not having been accomplished."19

A careful reading of the allegations in the Information would show that Canceran was charged with
"Frustrated Theft" only. Pertinent parts of the Information read:

x x x did then and there wilfully, unlawfully and feloniously take, steal and carry away 14 cartons of
Ponds White Beauty Cream valued at ₱28,627,20, belonging to Ororama Mega Center, represented
by William Michael N. Arcenio, thus performing all the acts of execution which would produce the
crime of theft as a consequence, but nevertheless, did not produce it by reason of some cause
independent of accused’s will x x x.

[Emphasis and Underscoring Supplied]

As stated earlier, there is no crime of Frustrated Theft. The Information can never be read to charge
Canceran of consummated Theft because the indictment itself stated that the crime was never
produced. Instead, the Information should be construed to mean that Canceran was being charged
with theft in its attempted stage only. Necessarily, Canceran may only be convicted of the lesser
crime of Attempted Theft.

"[A]n accused cannot be convicted of a higher offense than that with which he was charged in the
complaint or information and on which he was tried. It matters not how conclusive and convincing
the evidence of guilt may be, an accused cannot be convicted in the courts of any offense, unless it
is charged in the complaint or information on which he is tried, or necessarily included therein. He
has a right to be informed as to the nature of the offense with which he is charged before he is put
on trial, and to convict him of an offense higher than that charged in the complaint or information on
which he is tried would be an unauthorized denial of that right."20 Indeed, an accused cannot be
convicted of a crime, even if duly proven, unless it is alleged or necessarily included in the
information filed against him.21 An offense charged necessarily includes the offense proved when
some of the essential elements or ingredients of the former, as alleged in the complaint or
information, constitute the latter.22

The crime of theft in its consummated stage undoubtedly includes the crime in its attempted stage.
In this case, although the evidence presented during the trial prove the crime of consummated Theft,
he could be convicted of Attempted Theft only. Regardless of the overwhelming evidence to convict
him for consummated Theft, because the Information did not charge him with consummated Theft,
the Court cannot do so as the same would violate his right to be informed of the nature and cause of
the allegations against him, as he so protests.
The Court is not unmindful of the rule that "the real nature of the criminal charge is determined, not
from the caption or preamble of the information nor from the specification of the law alleged to have
been violated – these being conclusions of law – but by the actual recital of facts in the complaint or
information."23 In the case of Domingo v. Rayala,24 it was written:

What is controlling is not the title of the complaint, nor the designation of the offense charged or the
particular law or part thereof allegedly violated, these being mere conclusions of law made by the
prosecutor, but the description of the crime charged and the particular facts therein recited. The acts
or omissions complained of must be alleged in such form as is sufficient to enable a person of
common understanding to know what offense is intended to be charged, and enable the court to
pronounce proper judgment. No information for a crime will be sufficient if it does not accurately and
clearly allege the elements of the crime charged. Every element of the offense must be stated in the
information. What facts and circumstances are necessary to be included therein must be determined
by reference to the definitions and essentials of the specified crimes. The requirement of alleging the
elements of a crime in the information is to inform the accused of the nature of the accusation
against him so as to enable him to suitably prepare his defense.25

In the subject information, the designation of the prosecutor of the offense, which was "Frustrated
Theft," may be just his conclusion. Nevertheless, the fact remains that the charge was qualified by
the additional allegation, "but, nevertheless, did not produce it by reason of some cause independent
of accused’s will, that is, they were discovered by the employees of Ororama Mega Center who
prevented them from further carrying away said 14 cartons of Ponds White Beauty Cream, x x
x.26 This averment, which could also be deemed by some as a mere conclusion, rendered the charge
nebulous. There being an uncertainty, the Court resolves the doubt in favor of the accused,
Canceran, and holds that he was not properly informed that the charge against him was
consummated theft.

No double jeopardy when

the first jeopardy never
attached

Anent the issue of double jeopardy, the Court finds no reason to deviate from the ruling of the CA.

No person shall be twice put in jeopardy for punishment for the same offense. The rule of double
jeopardy has a settled meaning in this jurisdiction. It means that when a person is charged with an
offense and the case is terminated either by acquittal or conviction or in any other manner without
the consent of the accused, the latter cannot again be charged with the same or identical offense.
This principle is founded upon the law of reason, justice and conscience.27

Canceran argues that double jeopardy exists as the first case was scheduled for arraignment and
he, already bonded, was ready to enter a plea. It was the RTC who decided that there was
insufficient evidence to constitute the crime of theft.

To raise the defense of double jeopardy, three requisites must be present: (1) a first jeopardy must
have attached prior to the second; (2) the first jeopardy must have been validly terminated; and (3)
the second jeopardy must be for the same offense as that in the first. Legal jeopardy attaches only
(a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea
having been entered; and (e) the case was dismissed or otherwise terminated without the express
consent of the accused.28

Here, the CA correctly observed that Canceran never raised the issue of double jeopardy before the
RTC. Even assuming that he was able to raise the issue of double jeopardy earlier, the same must
1âwphi1
still fail because legal jeopardy did not attach. First, he never entered a valid plea. He himself
admitted that he was just about to enter a plea, but the first case was dismissed even before he was
able to do so. Second, there was no unconditional dismissal of the complaint. The case was not
terminated by reason of acquittal nor conviction but simply because he posted bail. Absent these two
elements, there can be no double jeopardy.

Penalty of Attempted Theft

The penalty for consummated theft is prision mayor in its minimum and medium periods.29 The
penalty lower by two degrees than that prescribed by law for the consummated felony shall be
imposed upon principals in an attempt to commit a felony.30 The basis for reduction of penalty by two
degrees is the penalty prescribed by law for the consummated crime. Also, when the offenses
defined in the RPC are punished with a penalty composed of two periods, like in the crime of theft,
the penalty lower by one degree is formed by two periods to be taken from the same penalty
prescribed.31

Here, the products stolen were worth ₱28,627.20. Following Article 309 par. 1 of the RPC, the
penalty shall be the maximum period of the penalty prescribed in. the same paragraph, because the
value of the things stolen exceeded ₱22,000.00. In other words, a special aggravating circumstance
shall affect the imposable penalty.

Applying the Indeterminate Sentence Law, the minimum penalty should be within the range of
Arresto Mayor Minimum to Arresto Mayor Medium. In view of the special aggravating circumstance
under Article 309 (1), the maximum penalty should be Arresto Mayor Maximum to Prision
Correccional Minimum in its maximum period.

WHEREFORE, the petition is PARTIALLY GRANTED. The August 10, 2012 Decision and the March
7, 2013 Resolution of the Court of Appeals in CA-G.R. CR No. 00559 are hereby MODIFIED, in that,
the Court finds accused Jovito Canceran guilty beyond reasonable doubt of the crime of Attempted
Theft.

Accordingly, the Court sentences the accused to suffer the indeterminate prison term ranging from
Four (4) Months of Arresto Mayor, as minimum, to Two (2) Years, Four (4) Months of Prision
Correccional, as maximum.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR: