REPUBLIC OF THE PHILIPPINESREGIONAL TRIAL COURT

NATIONAL CAPITAL JUDICIAL REGIONBRANCH 10, MANILA

PEOPLE OF THE PHILIPPINES,Plaintiff,

CRIM. CASE NO. 94-137533For: Qualified Theft

- versus -

EVANGELINE LACSON Y RAFOLS,Accused.

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D E C I S I O N

Accused Evangeline Lacson y Rafols stands charged with qualified theft under an Information dated July 12, 1994, the accusatory portion of which reads as follows:

That on or about the 7th day of July, 1994, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously, with intent of gain and without the knowledge and consent of the owner thereof, take, steal and carry away one (1) gold necklace with big round pendant worth P14,000.00; one (1) lady’s necklace with dragon round pendant worth P6,000.00; necklace without pendant worth P12,000.00[;] one (1) rope gold bracelet worth P16,000.00; three (3) lady’s bracelet worth P6,500.00; two (2) lady’s ring with brillantitus worth P4,600.00 and cash money in the amount of P53,000.00, or all with a total value of P112,000.00, belonging to Felisa Gonzales y Quitoviera, to the damage and prejudice of said owner in the aforesaid sum of P112,000.00, Philippine Currency.

That the said accused acted with grave abuse of confidence in the commission of the said offense she being then employed by complainant as a beautician in the parlor which serves of [sic] the complainant, and as such, accused has access to the place where the properties stolen were being kept.

CONTRARY TO LAW.

On July 15, 1994, accused was duly arraigned and, with the assistance of counsel, pleaded not guilty to the offense charged.

Pre-trial was conducted on January 19, 1995. Thereafter, trial on the merits ensued.

I. Antecedents

Private complainant Felisa Gonzales y Quitoviera is engaged in beauty parlor business located at the ground floor of her three-story boarding house at 1022 Felix Huertas St., Sta. Cruz, Manila. The boarding house harbors around twelve other boarders, aside from private complainant herself, Viva Flores y Permiza, alias “Bebang” (Flores), her helper, Angie Gador (Gador), her beautician, and herein accused, her manicurist. On weekdays, the boarders leave the boarding house before 8 o’clock in the morning. The third floor of the building is divided into smaller rooms tenanted by private complainant, Flores and eight other boarders.

After being recommended by one of her neighbors, private complainant employed accused as a stay-in beautician in said parlor sometime in April, 1994 until the second week of June of the same year when she was sacked for being tardy, habitually leaving her workstation very early even if she was on duty, and for being once caught by private complainant coming home to the boarding house at a late hour with a man. During the time when accused was a stay-in manicurist, she used to sleep sometimes in a room adjacent to that of private complainant room and at other times in the parlor.

About two weeks after she was terminated accused visited private complainant often to request private complainant to rehire her as she was having financial difficulties, but private complainant did not immediately budge. It was only after some time that she requested Arnel Amaro to call her to relate to her that she is accepting her again. Thus, on July 7, 1994, at around 10 o’clock in the morning, accused reported back to work. Private complainant was cooking at about this time when a guest arrived; she then asked accused to briefly watch what she was cooking. Since it was a Thursday, all of the boarders were gone at or before 7:30 o’clock in the morning. Only private complainant, her guest, Gador, Flores and accused were in the boarding house at that time.

After readying private complainant and her guest’s lunch at around 11:30 o’clock in the morning, accused, Flores, and Gador stayed inside the parlor to man it. When private complainant and her guest were done eating Flores and accused then moved to the dining area to have their meal. As Flores was fixing their meal, accused asked Flores if she has a tampon as she allegedly has a menstruation that day. Flores then told accused to retrieve one from her room located at the third floor of the boarding house, adjacent to the room of private complainant. Accused tarried a bit long upstairs even after Flores has finished eating, so private complainant instructed Flores to fetch accused and woo her to eat. Flores then scaled up into her room but was not able to find accused, so she went down. A few moments after, she saw accused slowly descend the stairs and go straight into the comfort room, looking awkwardly. After relieving herself, accused ate,

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following Flores’ importuning. Subsequently, at around 12:30 o’clock in the afternoon, accused sought permission and was allowed by private complainant to leave her work early as her menstrual bleeding was allegedly profuse, but promised to return the following day. Meanwhile, Flores, a college student, left for school at around 1 o’clock in the afternoon.

After a whole day’s toil, private complainant went back to her room at or about 6 o’clock in the evening of the same day. She looked for her jewelry box, which she hid under her bed, supposedly to return the jewelries she wore that day but found out, much to her consternation, that the box was opened and its contents were looted away. Based on her sworn affidavit, the jewelries purloined and their corresponding value are: one gold necklace with big round pendant worth P14,000.00; one lady’s necklace with dragon-round pendant worth P6,000.00; necklace without pendant worth P12,000.00; one rope gold bracelet worth P16,000.00; three lady’s bracelet collectively worth P6,500.00; and two lady’s ring with brillantitus collectively worth P4,600.00. Cash in the total amount of P53,000.00 was likewise taken from a receptacle in private complainant’s room. During her direct-examination, however, she mentioned that of the eight or ten pieces of pillaged jewelries stolen, three were men’s rings worth P3,000.00, whereas, her affidavit stated unequivocally that she lost two lady’s ring with brillantitus.1 In addition to said three men’s rings, likewise taken were her bracelet and necklace. The value of the jewelries stolen, according to her, was somewhere between P55,000.00 to P60,000.00. Money in the amount of P40,000.00, more or less, was also taken. Still, during her cross-examination, she testified that the nine (not eight or ten) jewelries abstracted from her are three necklaces (one with big pendant, one lady’s necklace and one necklace for man), one bracelet for man, three bracelets for ladies and two rings for ladies.2 The latter list dovetails with private complainant’s affidavit, adverted to above.

At any rate, at the time of the alleged filching, the door to private complainant’s room was padlocked and remained so when private complainant returned to her room that night. Private complainant usually places her jewelry box inside the cabinet in her room but since she used the jewelries subject matter of this case some day or days before they were taken she stored them instead under her bed.

In the meantime, the boarders arrived from work at around 8 o’clock in the evening. Private complainant questioned them, as well as Gardor, regarding her missing valuables and cash. Flores followed suit after she came home at 9 o’clock. While walking towards the entrance of the boarding house, Flores saw private complainant, Gador, and the other boarders waiting outside the boarding house, and immediately sensed from their facial reactions that something was wrong. Private complainant tattled that some of her jewelries and money were missing, and when queried about whether accused went to her room, Flores retorted that accused earlier climbed to the third floor to get a sanitary napkin from her room. Flores vouched that she never set foot in private complainant’s room that day. Incidentally, when Flores repaired to her room during the night when the theft was

1 TSN, January 19, 1995, pp. 9-102 TSN, April 6, 1995, p. 7

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discovered, it dawned on her that accused did not get a tampon from her room as the four tampons she has was still intact and undiminished.

Private complainant became more suspicious of accused as the night before the incident, or on July 6, 1994, she asked her to tend the parlor. While in the midst of giving instructions, accused saw private complainant leave a key in the drawer of the table in the parlor. That key is a duplicate key to private complainant’s room. Private complainant presumed that accused took the duplicate key to gain access therein as the unlawful taking was accomplished with absolutely no sign of forced entry.

On July 8, 1994 in the afternoon, private complainant travelled to the headquarters of the Philippine National Police – Western Police District Command (PNP-WPDC) in United Nations Avenue, Manila to report the thievery. At around 2:20 o’clock in the afternoon, SP01 Antonio C. Calapati (SP01 Calapati) of the Crimes Against Property Division (Robbery and Theft Section) took the statements of private complainant as well as that of Flores, which were subscribed and sworn to before P/Insp. Renaldo Q. Del Rosario of PNP-WPDC.3 A follow-up investigation was conducted forthwith by SP01 Calapati. He and private complainant wended to Tindalo St., Tondo, Manila where Manny Punzalan (Punzalan), who is the live-in partner of accused, resides. They went to the house of Brgy. Chairman Orlando Miller (Miller) of Brgy. 256, Zone 23, Disctrict 2 of Manila to seek his assistance as they do not know the specific address of Punzalan. SP01 Calapati explained to Miller the attendant circumstances regarding the pilferage of jewelries and cash belonging to private complainant. In the course of the colloquy, someone informed them that the house of Punzalan was nearby, so they positioned themselves proximate to the latter’s house and patiently waited for his arrival. At around 7 o’clock in the evening, Punzalan showed up, together with accused. Without mincing time, Miller summoned accused and Punzalan, together with private complainant and SP01 Calapati, to his house. The latter talked to accused to apprise her of the charge of private complainant but before he could finish his words, accused quizzed private complainant on why she was falsely accusing her. Private complainant, nevertheless, ignored accused’s saintly protestation. While in said house, private complainant saw accused wearing three of the jewelries ransacked from her room. With this information, SP01 Calapati removed from the person of accused one bracelet, one ring with brillantitus and one ring with flower design.

SP01 Calapati then invited accused, Punzalan and private complainant to the police station. What follows after is muddled with colliding testimonies of SP01 Calapati and private complainant. On the one hand, according to private complainant, in the course of the investigation, SP01 Calapati frisked the outer trappings of accused. Amid this, two rings and one bracelet fell down from accused. Accused, despite being caught red-handed, nonetheless did not admit authorship of the crime. On the other hand, according to SP01 Calapati, accused was not searched for things concealed about her. Rather, accused, who was advised of her constitutional rights,

3 Exhibits “B”, “B-1”, “E” and “E-1”

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voluntarily unburdened her guilt before him after he interrogated her about, inter alia, the ownership of the items recovered from her while they were in the house of Miller. Accused claimed that she only took two bracelets, two lady’s rings and P3,500.00 from private complainant. The latter amount, however, was not returned by accused. When asked where she placed the rest of the spoils, accused readily told SP01 Calapati that she pawned the other jewelries, and torn the pawn ticket afterwards. The confessions, however, were given without the assistance of counsel. In addition to three pieces of jewelries which were regained from accused while she was in the house of Miller, SP01 Calapati was able to recover from her one earring, one earlobe earring, one necklace and one Seiko automatic wrist watch. According to SP01 Calapati’s investigation, all of these articles were nabbed by accused from another person.

After the investigation, SP01 Calapati prepared the Booking Sheet and Arrest Report,4 which was signed by accused,5 as well as the referral document6 and the annexes thereto for submission to the duty inquest prosecutor. The case was docketed as I.S. No. 94G-17073.

During the inquest proceeding, Punzalan approached private complainant and related to her that he and accused do not have money to answer for the latter’s liability. In reply, private complainant agreed to settle the case if accused will restore to her all the other jewelries she burgled, or the same is not possible, then its monetary equivalent, which she pegged at that time at P20,000.00.

Finding prima facie evidence to warrant the prosecution of accused, a case for qualified theft was recommended to be filed by Asst. City Prosecutor Susanita E. Mendoza-Parker and approved by Asst. City Prosecutor Lourdes C. Tabang.

On August 11, 1994, private complainant wrote the Office of the City Prosecutor of Manila, requesting for the release to her of one bracelet and two lady’s rings, which were previously obtained from accused and placed under police custody, and undertaking that the aforesaid items will be produced upon demand by the proper authority.7 The request was granted subject to the condition that a photograph of the properties is taken which clearly shows the identifying marks and that the claimant (herein private complainant) signs a receipt therefor with the concomitant obligation to produce the same in court.8 Hence, consonant with the above order, a photograph of the items was taken by SP01 Calapati.9 Before they were given back to private complainant, verification was made by SP01 Calapati from another person who claims to have been victimized by accused to ascertain if they truly belong to her.

4 Exhibit “F”5 Said Booking Sheet and Arrest Report reads in part: “In this office, suspect when investigated after having been apprised of her constitutional rights readily and verbally admitted her guilt[,] claiming that only two bracelet[s], two lady’s ring[s] and P3,500.00 cash that she took from the complainant. 6 Exhibit “H”7 Exhibit “C”8 Exhibit “D”9 Exhibit “G”

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DECISIONCRIM. CASE NO. 94-137533Page Five (5)

After the presentation of its evidence, the prosecution filed its Formal Offer of Exhibits on May 15 1996, as follows:

Exhibit No.

Description Purpose

“A” bracelet recovered from accused to prove the existence of the pieces of jewelry stolen from private complainant by and subsequently from recovered from accused

“A-1” smaller ring recovered from accused“A-2” bigger ring recovered from accused

“B” sworn statement of complainant dated July 8, 1994 to prove the

allegations in the information

“B-1” signature of complainant on Exh. “B”“B-2” another statement of complainant“B-3” signature of complainant on Exhibit

“B-2”“C” request dated August 11, 1994 of

private complainant for the release to her of Exhibits “A” to “A-2”

to prove the existence of the pieces of jewelry which were recovered from accused, and which, upon the request of private complainant, were turned over to her

“C-1” signature of complainant on Exhibit “C”

“D” approval by the Office of the City Prosecutor of the request of complainant for the release of the aforementioned Exhibits “A” to “A-2”

“E” sworn statement of Flores to corroborate the testimony of private complainant

“E-1” signature of Flores on Exhibit “E”

“F” Booking Sheet and Arrest Report to prove that the case was investigated; that Exhibits “A” to “A-2” were photographed before they were returned to complainant; that the case was referred for inquest investigation; and that the inquest prosecutor recommended the indictment of accused for qualified theft

“F-1” signature of accused on the Booking Sheet and Arrest Report

“F-2” the portion of the Booking Sheet and Arrest Report which states that when investigated, accused readily and verbally admitted her guilt, claiming that she only took 2 bracelets and 2 ladies’ rings and P3,500.00 from private complainant

“G” photograph of Exhibits “A” to “A-2”“H” the referral of the case to the City

Prosecutor for inquest investigation“H-1” the recommendation of the inquest

investigator for the indictment of accused for qualified theft

On June 27, 1996, the foregoing exhibits were admitted by the Court as part of the testimony of the witness who testified thereon.

On November 19, 1996, for failure of accused and her counsel to appear and present evidence in support of her defense on July 11, 1996, August 22, 1996, October 10, 1996 and November 19, 1996, the

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Court, upon motion of the prosecution, deemed accused to have waived her right to adduce evidence. This case was then submitted for decision after the expiration of the thirty-day period given to the prosecution to file memorandum. No such memorandum, however, was filed.

II. The Issues

The issues for resolution in this case are whether accused is guilty is beyond reasonable doubt of qualified theft, and whether he is civilly liable therefor.

III. The Court’s Ruling

Parenthetically, the Court notes that accused was not represented by counsel when she confessed to stealing private complainant’s jewelries and cash and was identified by said private complainant and Flores during her (accused) interrogation at Precinct No. 5 of PNP-WPDC.

Verily, in order that an extra-judicial confession may be admitted in evidence, Article III, Section 12 of the 1987 Constitution mandates that the following safeguards be observed:

Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

xxx xxx xxx

(3) Any confession or admission obtained in violation of this or Section 17 shall be inadmissible in evidence against him. (emphases supplied)

Republic Act (R.A.) No. 7438, approved on May 15, 1992, has reinforced the constitutional mandate protecting the rights of persons under custodial investigation. The pertinent provisions read:

SEC. 2. Rights of Persons Arrested, Detained or under Custodial Investigation; Duties of Public Officers.—

a. Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel.

b. Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any person for the commission of an

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offense shall inform the latter, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer in private with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided by with a competent and independent counsel.

xxx xxx xxx

f. As used in this Act, “custodial investigation” shall include the practice of issuing an “invitation” to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the “inviting” officer for any violation of law.

If the extrajudicial confession satisfies these constitutional standards, it must further be tested for voluntariness, that is, if it was given freely by the confessant without any form of coercion or inducement, since Section 12(2), Art. III of the Constitution explicitly provides that “[n]o torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.”

Thus, in a long line of cases, the Supreme Court uniformly held that an extra-judicial confession is admissible in evidence only if all of the following requisites are satisfied:

(1)it must be voluntary;(2)it must be made with the assistance of competent and

independent counsel ;(3)it must be express; and(4)it must be in writing.10

If all the foregoing requisites are met, the confession constitutes evidence of a high order because it is presumed that no person of normal mind will knowingly and deliberately confess to a crime unless prompted by truth and conscience. Otherwise, it is disregarded in accordance with the cold objectivity of the exclusionary rule.11 The latter situation obtains in the instant case as accused was not assisted by a competent and independent counsel.

R.A. 7438 defines custodial investigation as any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.12 It includes the practice of issuing an “invitation” to a person who is investigated in connection with an offense he is

10 People v. Base, G.R. No. 109773, March 30, 2000 (emphasis and underscoring added)11 People v. Rapeza, G.R. No. 169431, April 3, 200712 Sec. 2, R.A. 7438

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suspected to have committed, without prejudice to the liability of the “inviting” officer for any violation of the law.13 Settled is the rule that the mantle of protection afforded by Article III, Section 12 of the 1987 Constitution to a person under custodial investigation covers the period from the time a person is taken into custody for the investigation of his possible participation in the commission of a crime or from the time he is singled out as a suspect in the commission of the offense although not yet in custody.14 Elsewhere stated, the rule begins to operate as soon as the investigation ceases to be a general inquiry into an unsolved crime and direction is then aimed at a particular suspect who has been taken into custody and to whom the police would then direct interrogatory questions which tend to elicit incriminating statements.15

The rule likewise applies to an out-of-court identification made in a “show-up” (where the accused is brought face to face with the witness for identification) or in a “police line-up” (where the suspect is identified by a witness from a group of persons gathered for that purpose) where the investigation is focused on a particular suspect as the possible perpetrator of the crime. This type of identification has been recognized as critical confrontations of the accused by the prosecution, necessitating the presence of counsel for the accused. This is because the result of the pre-trial proceedings might settle the fate of the accused and reduce the trial to a mere formality. Thus, any identification of an uncounseled accused made in a in a show or in a police line-up after the start of the custodial investigation is inadmissible in evidence against him.16

Needless to say, the right to counsel is a fundamental right and is intended to preclude the slightest coercion as would lead the accused to admit something false.17 The right to counsel, it bears stressing, attaches upon the start of the investigation, i.e., when the investigating officer starts to ask questions to elicit information and/or confessions or admissions from the accused.18

In this case, accused was already under custodial investigation when she was brought to the police headquarters for investigation. Accordingly, she was entitled, among others, to be represented by counsel. Since she was unassisted by counsel when she confessed to SP01 Calapati her extrajudicial admissions are, therefore, inadmissible consonant with the exclusionary rule ensconced in the third paragraph of the aforequoted Section 12, Article III of the Constitution. So, too, the out-of-court identification of accused by private complainant and Flores while the former was in the custody of PNP-WPDC cannot be accorded probative value for the same reason.

With the foregoing excluded, the probe now rivets on whether the prosecution proved accused’s guilt independently of her admissions and private complainant and Flores’ out-of-court

13 Id.14 People v. Base, supra.15 People v. Ayson, G.R. No. 85215, July 7, 1989; People v. Dagpin, G.R. No. 149560, June 10, 2004; People v. de la Cruz, G.R. No. 11866-68, September 17, 199716 People v. Escordial, G.R. Nos. 138934-35, January 16, 200217 People v. Olermo, G.R. No. 127848, July 17, 200318 Gamboa v. Cruz, G.R. No. L-56291, June 27, 1988

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identification by the quantum of proof required by law. The Court finds in the affirmative.

Theft is committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latter's consent.19 If committed with grave abuse of confidence, the crime of theft becomes qualified. In précis, qualified theft punishable under Article 310 in relation to Articles 308 and 309 of the Revised Penal Code (RPC) is committed when the following elements are present:

1. taking of personal property;2. that the said property belongs to another;3. that the said taking be done with intent to gain;4. that it be done without the owner’s consent;5. that it be accomplished without the use of violence or

intimidation against persons, nor of force upon things; and6. that it be done with grave abuse of confidence.20

There is “taking” of personal property, and theft is consummated when the offender unlawfully acquires possession of personal property of another even if for a short time without the latter’s privity and consent and without animus revertendi, or if such property is under the dominion and control of the thief. The taker, at some particular amount, must have obtained complete and absolute possession and control of the property adverse to the rights of the owner or the lawful possessor thereof. It is not necessary that the property be actually carried away out of the physical possession of the lawful possessor or that he should have made his escape with it. Neither asportation nor actual manual possession of property is required. Constructive possession by the thief of the property is enough.21

The taking should be accompanied by animus furandi, that is, intent to deprive another of his ownership or lawful possession of personal property which intent is apart from, but concurrent with the general criminal intent which is an essential element of a felony of dolo (dolos malus). The animo being a state of mind may be proved by direct or circumstantial evidence, inclusive of the manner and overt conduct of the accused before, during and after the taking of the personal property. General criminal intent is presumed or inferred from the very fact that the wrongful act is done since one is presumed to have willed the natural consequences of his own acts. Likewise, animus furandi is presumed from the furtive taking of useful property pertaining to another without the consent of the owner or lawful possessor thereof, unless special circumstances reveal a different intent on the part of the perpetrator.22 The same may be rebutted by the accused by evidence that he took the personal property under a bona fide belief that he owns the property.23

In the present case, it was established beyond cavil that personal property comprised of nine pieces of jewelries and money, all 19 Art. 308, Revised Penal Code20 PNB v. Tria, G.R. No. 193250, April 25, 201221 Cruz v. People, G.R. No. 176504, September 3, 2008; Laurel v. Abrogar, G.R. No. 155076, February 27, 200622 People v. Ladiana, G.R. No. 174660, May 30, 201123 Gaviola v. People, G.R. No. 163927, January 27, 2006

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belonging to private complainant, were filched from her room, without her consent. The unlawful taking was effectuated without inflicting violence or intimation on her person as she was in her parlor when the incident in question took place. Neither was there exertion of “force upon the things” as this phrase necessitates the use of force to gain entrance into a house or building by any of the means described in Articles 299 and 302 of the Revised Penal Code and, therefore, qualifies the offense to robbery.

The only remaining question is whether cogent proof exists for the imputation of the unlawful taking to accused as the perpetrator thereof, and if so, whether the taking was committed with grave abuse of confidence.

The Court finds that there is.

It bears stressing that direct evidence of the commission of a crime is not the only basis on which a court may draw its finding of guilt. Established facts that form a chain of circumstances can lead the mind intuitively or impel a conscious process of reasoning towards a conviction. Verily, resort to circumstantial evidence, understood as evidence which indirectly proves a fact in issue through an inference which the fact-finder draws from the evidence established, is sanctioned by Rule 133, Section 5 of the Rules of Court,24 for if direct evidence is insisted under all circumstances, the prosecution of vicious felons who committed heinous crimes in secret or secluded places will be hard, if not well-nigh impossible, to prove.25

In order for circumstantial evidence to sustain conviction, the above-said Rule requires the following elements: (a) there is more than one circumstance; (b) the facts from which the inferences are derived have been proven; and (c) the combination of all the circumstances results in a moral certainty that the accused, to the exclusion of all others, is the one who has committed the crime. Of particular importance is the third element. As a corollary to the constitutional precept of presumption of innocence, the Supreme Court in a catena of cases edified that the circumstances proved must constitute an unbroken chain which leads to one fair and reasonable conclusion that points to the accused, to the exclusion of all others as the guilty person; moreover, the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other hypothesis except that of guilty.26

The following circumstances, taken jointly, unmistakably indicate the culpability of the accused beyond reasonable doubt:

1. On the night prior to the unlawful taking of the subject properties, or on July 6, 1994, private complainant irreflectively placed the duplicate key to her room inside the drawer of the table in the parlor while she was biding accused

24 Buebos v. People, G.R. No. 163938, March 28, 200825 Baleros, Jr. v. People, G.R. No. 138033, February 22, 200626 People v. Anabe, G.R. No. 179033, September 6, 2010; People v. Bayon, G.R. No. 168627, July 2, 2010

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to guard said parlor. No other person was inside the parlor save private complainant and accused. So, too, no other person saw private complainant leave the duplicate key except accused.

2. Accused turned up at around 10 o’clock in the morning of the following day. With all of the boarders gone at or before 7:30 in the morning on that day, only private complainant, accused, Flores and Gador were left in the boarding house.

3. During lunch time, accused, on the representation that she has menstruation, solicited a tampon from Flores. The latter directed her to get one from her room located in the third floor of the boarding house, adjacent to that of private complainant.

4. Accused then went to the third floor. She tarried long upstairs, which prodded Flores to go up her room supposedly to fetch her to invite her to eat, but she could not find accused there, so she went back to the dining area in the first floor and waited for accused. After some time, accused descended and went straight into the comfort room, looking awkwardly. After eating, accused hurriedly sought leave from private complainant at around 12:30 in the afternoon as her menstrual discharge then was allegedly profuse, but she promised to return the following day.

5. There was no sign forced entry into private complainant’s room, which indicates that the thievery was committed by someone who had access to the boarding house.

6. There was absolutely no evidence that Gador entered private complainant’s room. Flores, for her part, adamantly averred that she did not enter private complainant’s room on the date of the incident in question. She spent her morning in the first floor of the boarding house doing chores, and left at around 1:00 in the afternoon to go to school. She returned to the house only at around 9:00 in the evening.

7. The boarders could not have possibly committed the offense as they left the house very early and returned only at around 8:00 in the evening, which was way after the purloining was discovered by private complainant at about 6:00 in the evening when she proceeded back to her room.

8. On the night when the unlawful taking was discovered, Flores found out, after counting her tampons, that accused did not get one from her room as the four tampons she had at that time remained undecreased.

9. Contrary to her promise, accused no longer reported back to work on the following day. During the follow-up investigation conducted by SP01 Calapati, three of the jewelries, which were carted away from private complainant’s room, were recovered from accused. Accused was then brought to the police station where she made certain admissions.

The next crucial question now is whether accused committed the crime with grave abuse of confidence as to bring the case within the ambit of qualified theft. Theft becomes qualified when it is, among others, committed with grave abuse of confidence.27 The grave abuse of confidence must be the result of the relation by reason of

27 Article 310, Revised Penal Code

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dependence, guardianship, or vigilance, between the offender and the offended party that might create a high degree of confidence between them which the appellant abused.28 In this case, it is beyond cavil that accused gravely abused the confidence reposed in her by private complainant when she, an employee who was allowed to take shelter in the latter’s dwelling, gobble in the latter’s table and enjoy other perquisites with no monetary consideration, took advantage of the latter’s trust by appropriating her jewelries and cash while the latter was inside her parlor on the day of the incident in question.

Having ascertained accused’s criminal liability for the crime of qualified theft, we now proceed to determine the penalty to the meted on accused. In Merida v. People,29 the Supreme Court ruled that to prove the amount of the property taken for fixing the penalty imposable against the accused under Article 309, in relation to Article 310, of the Revised Penal Code, the prosecution must present more than a mere uncorroborated assertion of such fact. In the absence of independent and reliable corroboration of such assertion, courts may either apply the minimum penalty under Article 309, in relation to Article 310, or fix the value of the property taken based on the attendant circumstances of the case. Accordingly, in the greater interest of substantial justice and so as not to depreciate the gravity of the offense with which accused stands charged, the Court resolves to fix the value of all the properties and monies taken from private complainant to only P10,000.00.

Paragraph 2, Article 309 of the Revised Penal Code provides that the penalty of prision correccional in its medium and maximum periods shall be imposed if the value of the thing stolen is more than P6,000.00 but does not exceed P12,000.00. Here, the amount stolen by accused was fixed by the Court to P10,000.00, as aforesaid. Considering, however, that we are confronted in this case not with a simple theft but theft qualified by grave abuse of confidence, the penalty for which, according to Article 310 of the Revised Penal Code, is two degrees higher than those specified in Article 309 (reckoned, in this case, from prision correccional in its medium and maximum periods, based on the aforementioned approximation), the maximum penalty of reclusion temporal in its medium and maximum periods (equivalent to 16 years, 5 months and 11 days to 18 years, 2 months and 20 days) is proper. But applying Indeterminate Sentence Law, there being neither mitigating nor aggravating circumstance, an indeterminate penalty of imprisonment ranging from 9 years, 4 months and 1 day to 10 years and 8 months of prision mayor should be imposed as maximum.

As to accused’s civil liability, the Court notes that the prosecution has not presented sufficient evidence to substantiate the total amount looted from private complainant by official receipt, invoice and the like. Nevertheless, since it cannot be gainsaid that pecuniary loss did occur for which indemnification in favor of private complainant is justly due, an adjudication of the amount of P10,000.00 as liquidated damages against accused is likewise in order.

28 People v. Tanchanco, G.R. No. 177761, April 18, 201229 G.R. No. 158182, June 12, 2008

DECISIONCRIM. CASE NO. 94-137533Page Thirteen (13)

WHEREFORE, in view of the foregoing disquisitions, judgment is hereby rendered finding accused Evangeline Lacson y Rafols GUILTY beyond reasonable doubt of qualified theft and sentencing her to suffer indeterminate penalty of imprisonment ranging from 9 years, 4 months and 1 day to 10 years and 8 months of prision mayor, as minimum, and to 16 years, 5 months and 11 days to 18 years, 2 months and 20 days of reclusion temporal, as maximum, and to indemnify private complainant Felisa Gonzales y Quitovier the sum of P10,000.00 as liquidated damages.

SO ORDERED.

Manila, Philippines, _____________.

VIRGILIO M. ALAMEDA

Judge

/raffy