Topic; Distinguish Preliminary Investigation to Preliminary Examination Strict enforcement of the Rules may be suspended whenever the purposes
ay be suspended whenever the purposes of justice so require. 10
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 172829 July 18, 2012
ROSA H. FENEQUITO, CORAZON E. HERNANDEZ, and LAURO H. RODRIGUEZ, Petitioners,
vs.
BERNARDO VERGARA, JR., Respondent.
DECISION
PERALTA, J.:
Assailed in the present petition for review on certiorari under Rule 45 of the Rules of Court are the
Resolutions1dated March 9, 2006 and May 22, 2006 of the Court of Appeals (CA) in CA-G.R. CR No.
29648. The CA Resolution of March 9, 2006 dismissed petitioners' petition for review, while the CA
Resolution dated May 22, 2006 denied petitioners' Motion for Reconsideration.
The present petition arose from a criminal complaint for falsification of public documents filed by herein
respondent against herein petitioners with the Office of the City Prosecutor of Manila.
On February 11, 2004, an Information for falsification of public documents was filed with the
Metropolitan Trial Court (MeTC) of Manila by the Assistant City Prosecutor of Manila against herein
petitioners.2
On April 23, 2004, herein petitioners filed a Motion to Dismiss the Case Based on Absence of Probable
Cause.3
After respondent's Comment/Opposition4 was filed, the MeTC issued an Order5 dated July 9, 2004
dismissing the case on the ground of lack of probable cause.
Aggrieved, respondent, with the express conformity of the public prosecutor, appealed the case to the
Regional Trial Court (RTC) of Manila.6
On July 21, 2005, the RTC rendered judgment setting aside the July 9, 2004 Order of the MeTC and
directing the said court to proceed to trial.7
Petitioners then elevated the case to the CA via a petition for review.
On March 9, 2006, the CA rendered its presently assailed Resolution 8 dismissing the petition.
The CA ruled that the Decision of the RTC is interlocutory in nature and, thus, is not appealable.
Petitioners filed a Motion for Reconsideration, but the CA denied it in its Resolution 9 dated May 22,
2006.
Hence, the instant petition based on the following grounds:
The Honorable Court of Appeals erred in outrightly dismissing the Petition for Review on the ground
that the remedy availed of by petitioners is improper.
In their first assigned error, petitioners contend that the Decision of the RTC is final as it disposes with
finality the issue of whether the MeTC erred in granting their Motion to Dismiss.
The Court does not agree.
The Court notes at the outset that one of the grounds relied upon by the CA in dismissing petitioners'
petition for review is the latter's failure to submit copies of pleadings and documents relevant and
pertinent to the petition filed, as required under Section 2, 11 Rule 42 of the Rules of Court. While
petitioners filed a Motion for Reconsideration, they, however, failed to comply with these requirements.
Worse, they did not even mention anything about it in the said Motion. Section 3, Rule 42 of the same
Rules provides:
Sec. 3. Effect of failure to comply with requirements. The failure of the petitioner to comply with any
of the foregoing requirements regarding the payment of the docket and other lawful fees, the deposit
for costs, proof of service of the petition, and the contents of and the documents which should
accompany the petition shall be sufficient ground for the dismissal thereof.
Moreover, it is a settled rule that the right to appeal is neither a natural right nor a part of due process;
it is merely a statutory privilege, and may be exercised only in the manner and in accordance with the
provisions of law.12 An appeal being a purely statutory right, an appealing party must strictly comply
with the requisites laid down in the Rules of Court. 13 Deviations from the Rules cannot be
tolerated.14 The rationale for this strict attitude is not difficult to appreciate as the Rules are designed to
facilitate the orderly disposition of appealed cases.15 In an age where courts are bedeviled by clogged
dockets, the Rules need to be followed by appellants with greater fidelity. 16 Their observance cannot be
left to the whims and caprices of appellants.17 In the instant case, petitioners had all the opportunity to
comply with the Rules. Nonetheless, they remained obstinate in their non-observance even when they
sought reconsideration of the ruling of the CA dismissing their petition. Such obstinacy is incongruous
with their late plea for liberality in construing the Rules.
On the above basis alone, the Court finds that the instant petition is dismissible.
Even if the Court bends its Rules to allow the present petition, the Court still finds no cogent reason to
depart from the assailed ruling of the CA.
The factual and legal situations in the present case are essentially on all fours with those involved
in Basa v. People.18 In the said case, the accused were charged with swindling and falsification of public
documents. Subsequently, the accused filed a Joint Motion to Quash on the ground that the facts
charged in each Information do not constitute an offense. Thereafter, the MeTC issued an order in favor
of the accused and, accordingly, quashed the Informations. The private complainant, with the
conformity of the public prosecutor, filed a motion for reconsideration but the MeTC denied it. On
appeal, the RTC reversed the order of the MeTC and directed the continuation of the proceedings. The
accused then filed a petition for review with the CA. In its assailed decision, the CA dismissed the
petition on the ground that the remedy of appeal from the RTC decision is improper, because the said
decision is actually interlocutory in nature.
In affirming the ruling of the CA, this Court held that:
Petitioners erroneously assumed that the RTC Decision is final and appealable, when in fact it is
interlocutory. Thus, they filed a petition for review with the Court of Appeals under Section 3 (b), Rule
122 of the Revised Rules of Criminal Procedure, which provides:
xxxx
(b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its
appellate jurisdiction shall be by petition for review under Rule 42.
xxxx
Section 1, Rule 42 of the 1997 Rules of Civil Procedure, as amended, states:
Sec. 1. How appeal taken; time for filing. A party desiring to appeal from a decision of the Regional
Trial Court rendered in the exercise of its appellate jurisdiction, may file a verified petition for
review with the Court of Appeals, x x x.
The above provisions contemplate of an appeal from a final decision or order of the RTC in the exercise
of its appellate jurisdiction.
Thus, the remedy of appeal under Rule 42 resorted to by petitioners is improper. To repeat, the RTC
Decision is not final, but interlocutory in nature.
A final order is one that which disposes of the whole subject matter or terminates a particular
proceeding or action, leaving nothing to be done but to enforce by execution what has been
determined. Upon the other hand, an order is interlocutory if it does not dispose of a case completely,
but leaves something more to be done upon its merits.
Tested against the above criterion, the RTC Decision is beyond cavil interlocutory in nature. It is
essentially a denial of petitioners' motion to quash because it leaves something more to be
done x x x, i.e ., the continuation of the criminal proceedings until the guilt or innocence of
the accused is determined. Specifically, the MeTC has yet to arraign the petitioners, then proceed to
trial and finally render the proper judgment.
It is axiomatic that an order denying a motion to quash on the ground that the allegations in the
Informations do not constitute an offense cannot be challenged by an appeal. This Court generally
frowns upon this remedial measure as regards interlocutory orders. The evident reason for such rule is
to avoid multiplicity of appeals in a single action. To tolerate the practice of allowing appeals from
interlocutory orders would not only delay the administration of justice but also would unduly burden
the courts.19 (Emphases supplied)
In the present case, the assailed Decision of the RTC set aside the Order of the MeTC and directed the
court a quo to proceed to trial by allowing the prosecution to present its evidence. Hence, it is clear
that the RTC Decision is interlocutory as it did not dispose of the case completely, but left something
more to be done on its merits.
In their second assigned error, petitioners claim that assuming for the sake of argument that the
remedy they availed of is not proper, the facts of the case would readily show that there exist just and
compelling reasons to warrant the relaxation of the rules in the interest of substantial justice.
Petitioners contend that the PNP Crime Laboratory Questioned Document Report, submitted as
evidence by respondent to the prosecutor's office, showed that the findings therein are not conclusive
and, thus, insufficient to support a finding of probable cause.
The Court is not persuaded.
It is clear from a perusal of the cited PNP Crime Laboratory Questioned Document Report No. 048-03
that the document examiner found that the signatures appearing in the questioned Deed of Sale as
compared to the standard signatures "reveal divergences in the manner of execution and stroke
structure [which is] an indication that they WERE NOT WRITTEN BY ONE AND THE SAME
PERSON."20 The Court agrees with the prosecutor's pronouncement in its Resolution21 dated September
22, 2003, that although the findings of the PNP Crime Laboratory were qualified by the statement
contained in the Report that "no definite conclusion can be rendered due to the fact that questioned
signatures are photocopies wherein minute details are not clearly manifested," the fact that an expert
witness already found that the questioned signatures were not written by one and the same person
already creates probable cause to indict petitioners for the crime of falsification of public document.
In Reyes v. Pearlbank Securities, Inc.,22 this Court held:
Probable cause, for the purpose of filing a criminal information, has been defined as such facts as are
sufficient to engender a well-founded belief that a crime has been committed and that respondent is
probably guilty thereof. The term does not mean "actual and positive cause" nor does it import
absolute certainty. It is merely based on opinion and reasonable belief. Probable cause does not require
an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is
believed that the act or omission complained of constitutes the offense charged.
A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime
has been committed by the suspects. It need not be based on clear and convincing evidence of guilt,
not on evidence establishing guilt beyond reasonable doubt, and definitely not on evidence establishing
absolute certainty of guilt. In determining probable cause, the average man weighs facts and
circumstances without resorting to the calibrations of the rules of evidence of which he has no technical
knowledge. He relies on common sense. What is determined is whether there is sufficient ground to
engender a well-founded belief that a crime has been committed, and that the accused is probably
guilty thereof and should be held for trial. It does not require an inquiry as to whether there is
sufficient evidence to secure a conviction.23
In the instant case, the Court finds no justification to depart from the ruling of the RTC that the offense
charged was committed and that herein petitioners are probably guilty thereof.
With respect to respondent's legal personality to appeal the July 9, 2004 Order of the MeTC, suffice it
to say that the appeal filed with the RTC was made with the express conformity of the public
prosecutor who handles the case.
It is wrong for petitioners to argue that it is the OSG which has authority to file an appeal with the
RTC.1wphi1 Section 35 (l), Chapter 12, Title III of Book IV of Executive Order No. 292, otherwise
known as the Administrative Code of 1987, mandates the OSG to represent "the Government in the
Supreme Court and the Court of Appeals in all criminal proceedings." On the other hand, Section 11 of
Presidential Decree No. 1275, entitled "Reorganizing the Prosecution Staff of the Department of Justice
and the Offices of the Provincial and City Fiscals, Regionalizing the Prosecution Service, and Creating
the National Prosecution Service," which was the law in force at the time the appeal was filed, provides
that the provincial or the city fiscal (now referred to as prosecutor) "shall have charge of
the prosecution of all crimes, misdemeanors and violations of city or municipal ordinances in the
courts of such province or city and shall therein discharge all the duties incident to the
institution of criminal prosecutions."24 In consonance with the above-quoted provision, it has been
held by this Court that the fiscal represents the People of the Philippines in the prosecution of
offenses before the trial courts at the metropolitan trial courts, municipal trial courts, municipal
circuit trial courts and the regional trial courts.25 Since the appeal, in the instant case was made with
the RTC of Manila, it is clear that the City Prosecutor or his assistant (in this case, the Assistant City
Prosecutor) had authority to file the same.
Moreover, petitioners' reliance on Presidential Decree No. 911 is misplaced, as the cited provision
refers only to cases where the assistant fiscal or state prosecutor's power to file an information or
dismiss a case is predicated or conditioned upon the prior authority or approval of the provincial or city
fiscal or the Chief State Prosecutor. There is nothing in the said law which provides that in cases of
appeal an Assistant City Prosecutor or a State Prosecutor may file the same only upon prior authority
or approval of the City Prosecutor or the Chief State Prosecutor. Stated differently, unless otherwise such person to whom she may have delivered or entrusted the money she had received in trust from
ordered, an Assistant City Prosecutor or a State Prosecutor may file an appeal with the RTC, the firm, for the purpose of recovering such money. Thus, Reyes filed a complaint for the crime of
questioning the dismissal by the MeTC of a case for lack of probable cause, even without prior authority estafa against Mateo Elejorde before the City Prosecutor's Office of Makati City docketed as I.S. No. 98-
or approval of the City Prosecutor or the Chief State Prosecutor. B-5916-22, and on March 30, 2001, Mateo Elejorde was indicted for estafa.

WHEREFORE, the instant petition is DENIED. The Resolutions of the Court of Appeals, dated March 9, After a preliminary investigation was conducted against Reyes, the Assistant Prosecutor of Makati City
2006 and May 22, 2006 in CA-G.R. CR No. 29648, are AFFIRMED. issued a Resolution2 dated April 27, 2005, the dispositive portion of which reads:

SO ORDERED. In view thereof, it is most respectfully recommended that respondent be indicted of the crime of Estafa
Republic of the Philippines defined and penalized under the Revised Penal Code. It could not be said that she has violated the
SUPREME COURT provision of PD 1689 for it was not shown that the money allegedly given to her were funds solicited
Manila from the public. Let the attached information be approved for filing in court. Bail recommendation at
THIRD DIVISION Php40,000.00.3
G.R. No. 181021 December 10, 2012
BURGUNDY REALTY CORPORATION, Petitioner,
vs. Thereafter, an Information for the crime of Estafa under Article 315, par. 1 (b) of the Revised Penal
JOSEFA "JING" C. REYES and SECRETARY RAUL GONZALEZ of the DEPARTMENT OF Code (RPC) was filed against Reyes and raffled before the RTC, Branch 149, Makati City.
JUSTICE,Respondents.
DECISION Undeterred, Reyes filed a petition for review before the Department of Justice (DOJ), but it was
PERALTA, J.: dismissed by the Secretary of Justice through State Prosecutor Jovencito Zuo on June 1, 2006.

For resolution of this Court is the Petition for Review on Certiorari, dated February 13, 2008, of Aggrieved, Reyes filed a motion for reconsideration, and in a Resolution 4 dated July 20, 2006, the said
petitioner Burgundy Realty Corporation, seeking to annul and set aside the Decision 1 and Resolution of motion was granted. The decretal text of the resolution reads:
the Court of Appeals (CA), dated September 14, 2007 and December 20, 2007, respectively.

Finding the grounds relied upon in the motion to be meritorious and in the interest of justice, our
The facts follow. Resolution of June 1, 2006 is hereby RECONSIDERED and SET ASIDE. Accordingly, the petition for
review filed by respondent-appellant Josefa Reyes is hereby given due course and will be reviewed on
Private respondent Josefa "Jing" C. Reyes (Reyes), sometime in 1996, offered her services to petitioner the merits and the corresponding resolution will be issued in due time.
as the latter's real estate agent in buying parcels of land in Calamba, Laguna, which are to be
developed into a golf course. She informed petitioner that more or less ten (10) lot owners are her SO ORDERED.
clients who were willing to sell their properties. Convinced of her representations, petitioner released
the amount of 23,423,327.50 in her favor to be used in buying those parcels of land. Reyes, instead
of buying those parcels of land, converted and misappropriated the money given by petitioner to her On September 22, 2006, Secretary of Justice Raul Gonzalez issued a Resolution 5 granting the petition
personal use and benefit. Petitioner sent a formal demand for Reyes to return the amount of for review of Reyes, the fallo of which reads:
23,423,327.50, to no avail despite her receipt of the said demand. As such, petitioner filed a
complaint for the crime of Estafa against Reyes before the Assistant City Prosecutor's Office of Makati
WHEREFORE, the assailed resolution is hereby REVERSED and SET ASIDE. The City Prosecutor of
City.
Makati City is directed to cause the withdrawal of the information for estafa filed in court against
respondent Josefa "Jing" C. Reyes and to report the action taken within five (5) days from receipt
Reyes, while admitting that she acted as a real estate agent for petitioner, denied having converted or hereof.
misappropriated the involved amount of money. She claimed that the said amount was used solely for
the intended purpose and that it was petitioner who requested her services in procuring the lots.
SO ORDERED.6
According to her, it was upon the petitioner's prodding that she was constrained to contact her friends
who were also into the real estate business, including one named Mateo Elejorde. She alleged that
prior to the venture, Mateo Elejorde submitted to her copies of certificates of title, vicinity plans, Petitioner filed a motion for reconsideration, but was denied by the Secretary of Justice in a Resolution
cadastral maps and other identifying marks covering the properties being offered for sale and that after dated December 14, 2006. Eventually, petitioner filed a petition for certiorari under Rule 65 of the
validating and confirming the prices as well as the terms and conditions attendant to the projected Rules of Court with the CA. The latter, however, affirmed the questioned Resolutions of the Secretary
sale, petitioner instructed her to proceed with the release of the funds. Thus, she paid down payments of Justice. The dispositive portion of the Decision dated September 14, 2007 reads:
to the landowners during the months of February, March, July, August, September and October of
1996. Reyes also insisted that petitioner knew that the initial or down payment for each lot represented
only 50% of the purchase price such that the remaining balance had to be paid within a period of thirty WHEREFORE, premises considered, the assailed Resolutions, dated 22 September 2006 and 14
(30) days from the date of receipt of the initial payment. She added that she reminded petitioner, after December 2006[,] both rendered by public respondent Secretary of Justice, are hereby AFFIRMED in
several months, about the matter of unpaid balances still owing to the lot owners, but due to lack of toto.
funds and non-infusion of additional capital from other investors, petitioner failed to pay the
landowners of their remaining unpaid balances. Meanwhile, Reyes received information that her sub-
SO ORDERED.7
broker Mateo Elejorde had been depositing the involved money entrusted to him under his personal
account. On March 28, 2000, through a board resolution, petitioner allegedly authorized Reyes to
institute, proceed, pursue and continue with whatever criminal or civil action against Mateo Elejorde, or
Its motion for reconsideration having been denied by the CA in a Resolution dated December 20, 2007,
petitioner filed the present petition and the following are the assigned errors:
I The elements are:
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT FINDING THAT THE DOJ SECRETARY,
RAUL GONZALEZ, CAPRICIOUSLY, ARBITRARILY AND WHIMSICALLY DISREGARDED THE
EVIDENCE ON RECORD SHOWING THE [EXISTENCE] OF PROBABLE CAUSE AGAINST
PRIVATE RESPONDENT FOR ESTAFA UNDER ARTICLE 315 1(b) OF THE REVISED PENAL
CODE.
II
THE COURT OF APPEALS GRIEVOUSLY ERRED IN NOT FINDING BUT INSTEAD CONCURRED
IN WITH THE DOJ SECRETARY, RAUL GONZALEZ, WHO BY GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION HELD THAT NOT ALL OF THE ELEMENTS
OF ESTAFA UNDER ARTICLE 315 1 (b), PARTICULARLY THE ELEMENT OF
MISAPPROPRIATION, WERE NOT SUFFICIENTLY ESTABLISHED IN THIS CASE.
III
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT FINDING THAT THE DOJ SECRETARY,
RAUL GONZALEZ, ACTED WITH GRAVE ABUSE OF DISCRETION IN ACCEPTING AS TRUTH
WHAT WERE MATTERS OF DEFENSE BY PRIVATE RESPONDENT IN HER COUNTER-AFFIDAVIT
WHICH SHOULD HAVE BEEN PROVEN AT THE TRIAL ON THE MERITS. 8
The petition is meritorious.
It is not disputed that decisions or resolutions of prosecutors are subject to appeal to the Secretary of
Justice who, under the Revised Administrative Code,9 exercises the power of direct control and
supervision over said prosecutors; and who may thus affirm, nullify, reverse or modify their rulings.
Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors
finds basis in the doctrine of exhaustion of administrative remedies which holds that mistakes, abuses
or negligence committed in the initial steps of an administrative activity or by an administrative agency
should be corrected by higher administrative authorities, and not directly by courts.10
In the present case, after review and reconsideration, the Secretary of Justice reversed the
investigating prosecutor's finding of probable cause that all the elements of the crime of estafa are
present. Estafa, under Article 315 (1) (b) of the Revised Penal Code, is committed by
ART. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned
hereinbelow:
xxxx
1. With unfaithfulness or abuse of confidence, namely:
(a) x x x
(b) By misappropriating or converting, to the prejudice of another, money, goods, or any
other personal property received by the offender in trust or on commission, or for
administration, or under any other obligation involving the duty to make delivery of or to
return the same, even though such obligation be totally or partially guaranteed by a bond; or
by denying having received such money, goods, or other property; x x x
1) that money, goods or other personal property be received by the offender in trust, or on
commission, or for administration, or under any other obligation involving the duty to make
delivery of, or to return, the same;
2) that there be misappropriation or conversion of such money or property by the offender,
or denial on his part of such receipt;
3) that such misappropriation or conversion or denial is to the prejudice of another; and
4) that there is demand made by the offended party on the offender. 11
The essence of estafa under Article 315, par. 1 (b) is the appropriation or conversion of money or
property received to the prejudice of the owner. The words "convert" and "misappropriate" connote an
act of using or disposing of another's property as if it were one's own, or of devoting it to a purpose or
use different from that agreed upon. To misappropriate for one's own use includes not only conversion
to one's personal advantage, but also every attempt to dispose of the property of another without
right.12
In reversing the finding of probable cause that the crime of estafa has been committed, the Secretary
of Justice reasoned out that, [the] theory of conversion or misappropriation is difficult to sustain and
that under the crime of estafa with grave abuse of confidence, the presumption is that the thing has
been devoted to a purpose or is different from that for which it was intended but did not take place in
this case.1wphi1 The CA, in sustaining the questioned resolutions of the Secretary of Justice, ruled
that the element of misappropriation or conversion is wanting. It further ratiocinated that the demand
for the return of the thing delivered in trust and the failure of the accused to account for it, are
circumstantial evidence of misappropriation, however, the said presumption is rebuttable and if the
accused is able to satisfactorily explain his failure to produce the thing delivered in trust, he may not be
held liable for estafa.1wphi1
It must be remembered that the finding of probable cause was made after conducting a preliminary
investigation. A preliminary investigation constitutes a realistic judicial appraisal of the merits of a
case.13 Its purpose is to determine whether (a) a crime has been committed; and (b) whether there is a
probable cause to believe that the accused is guilty thereof. 14
This Court need not overemphasize that in a preliminary investigation, the public prosecutor merely
determines whether there is probable cause or sufficient ground to engender a well-founded belief that
a crime has been committed, and that the respondent is probably guilty thereof and should be held for
trial. It does not call for the application of rules and standards of proof that a judgment of conviction
requires after trial on the merits.15 The complainant need not present at this stage proof beyond
reasonable doubt.16 A preliminary investigation does not require a full and exhaustive presentation of
the parties' evidence.17 Precisely, there is a trial to allow the reception of evidence for both parties to
substantiate their respective claims.18
A review of the records would show that the investigating prosecutor was correct in finding the
existence of all the elements of the crime of estafa. Reyes did not dispute that she received in trust the
amount of 23,423,327.50 from petitioner as proven by the checks and vouchers to be used in
purchasing the parcels of land. Petitioner wrote a demand letter for Reyes to return the same amount
but was not heeded. Hence, the failure of Reyes to deliver the titles or to return the entrusted money,
despite demand and the duty to do so, constituted prima facieevidence of misappropriation. The words
convert and misappropriate connote the act of using or disposing of another's property as if it were
one's own, or of devoting it to a purpose or use different from that agreed upon. 19To misappropriate for 1. Copy of the Memorandum of Preliminary Investigation;
one's own use includes not only conversion to one's personal advantage, but also every attempt to
dispose of the property of another without right.20 In proving the element of conversion or
misappropriation, a legal presumption of misappropriation arises when the accused fails to deliver the 2. Resolution of the Investigating Prosecutor on Record, Prosecutor Dennis S. Jarder Jarder
proceeds of the sale or to return the items to be sold and fails to give an account of their Resolution;
whereabouts.21 Thus, the mere presumption of misappropriation or conversion is enough to conclude
that a probable cause exists for the indictment of Reyes for Estafa. As to whether the presumption can 3. Memorandum of the transfer of case assignment from designated Investigating Prosecutor
be rebutted by Reyes is already a matter of defense that can be best presented or offered during a full- to the City Prosecutor; and
blown trial.

4. Exhibit to the Court, the copies of all documents submitted by the complainant and the
To reiterate, probable cause has been defined as the existence of such facts and circumstances as respondents therein for comparison, authentication and completeness of the photocopies
would excite the belief in a reasonable mind, acting on the facts within the knowledge of the attached to the information.
prosecutor, that the person charged was guilty of the crime for which he was prosecuted. 22 Probable
cause is a reasonable ground of presumption that a matter is, or may be, well founded on such a state
of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to Compliance is required within five (5) days from receipt of this Order.3
believe, or entertain an honest or strong suspicion, that a thing is so. 23 The term does not mean
"actual or positive cause" nor does it import absolute certainty.24It is merely based on
On April 29, 2009, the Office of the City Prosecutor submitted a copy of the Memorandum of
opinion and reasonable belief.25 Thus, a finding of probable cause does not require an inquiry
Preliminary Investigation and informed respondent that the documents submitted by the parties for
into whether there is sufficient evidence to procure a conviction.26 It is enough that it is
preliminary investigation were already appended to the complaint, thus, taking care of items 1, 2, and
believed that the act or omission complained of constitutes the offense charged. 27
4 required by the April 13, 2009 Order.

WHEREFORE, premises considered, the present Petition is hereby GRANTED and, accordingly, the
Decision and Resolution of the Court of Appeals, dated September 14, 2007 and December 20, 2007,
respectively, are herebyREVERSED and SET ASIDE. Consequently, the Regional Trial Court, Branch
149, Makati City, where the Information was filed against private respondent Josefa "Jing" C. Reyes, is
hereby DIRECTED to proceed with her arraignment.
SO ORDERED.
With respect to item 3 thereof, complainant, in a letter also dated April 29, 2009, explained that there
was no memorandum of transfer of the case from the investigating prosecutor, Assistant City
Prosecutor (ACP) Dennis S. Jarder, to him.4 In his aforementioned letter, complainant discussed that
the case was initially handled by ACP Jarder who found no probable cause against Cresencio Palo, Sr.,
accused in Criminal Case No. 09-03-16474. However, complainant, upon review pursuant to Section 4,
Rule 112 of the Revised Rules of Criminal Procedure, 5found otherwise; that is, there was probable
cause against Palo. Thus, complainant disapproved ACP Jarders Resolution and filed the Information in
court.6

Topic who may conduct Preliminary Investigation

Republic of the Philippines Respondent was nonetheless dissatisfied with the explanation of the Office of the City Prosecutor. In an
SUPREME COURT Order dated May 5, 2009,7 respondent stated that the Jarder Resolution (dismissing the complaint) was
Manila part and parcel of the official records of the case and, for this reason, must form part of the records of
FIRST DIVISION the preliminary investigation. He further stated that because there was a conflict between Jarders and
A.M. No. MTJ-12-1804 July 30, 2012 complainants resolutions, those documents were necessary in the evaluation and appreciation of the
(Formerly A.M. OCA I.P.I. No. 09-2179-MTJ) evidence to establish probable cause for the issuance of a warrant of arrest against Palo.
CITY PROSECUTOR ARMANDO P. ABANADO, Complainant,
vs.
WHEREFORE, in view of the foregoing premises, complainant is hereby ordered to complete the records
JUDGE ABRAHAM A. BA YONA, Presiding Judge, Municipal Trial Court in Cities, Branch 7,
of this case by producing in Court this official and public document (Resolution of the Investigating
Bacolod City,Respondent.
Prosecutor Dennis S. Jarder), required by the Revised Rules of Criminal Procedure, Rules of Court.
DECISION
Compliance is required within five (5) days from receipt hereof. Fail not under the pain of Contempt.8
LEONARDO-DE CASTRO, J.:

On May 11, 2009, in view of the foregoing order, the Office of the City Prosecutor again sent a
The case now before this Court sprang from Criminal Case No. 09-03-164 7 4, entitled People of the
letter9 explaining the impossibility of submitting the Jarder Resolution to the court. The letter stated
Philippines v. Cresencio Palo, Sr.1 On March 24, 2009, complainant City Prosecutor Armando P.
that the Jarder Resolution was no longer part of the records of the case as it was disapproved by
Abanado filed the Information2 in the Municipal Trial Court in Cities, Bacolod City, which was eventually
complainant and it attached a letter of Chief State Prosecutor Jovencito Zuo which reads:
raffled to Branch 7 thereof presided by respondent Judge Abraham A. Bayona.

This refers to your letter dated April 18, 2008. For your information, all resolutions prepared by an
On April 13, 2009, respondent issued the following order in Criminal Case No. 09-03-16474 in
Investigating Prosecutor after preliminary investigation shall form part of the record of the case. But if
connection with the issuance of a warrant of arrest against the accused therein:
they have been disapproved by the Provincial/City Prosecutor, the same shall not be released to the
parties and/or their counsels. Thus, only resolutions approved by the Provincial/City Prosecutor for
Pursuant to Section 6, paragraph (a) in relation to paragraph b, Rule 112 of the Revised Rules of promulgation and release to the parties shall be made known to the parties and/or their counsel. 10
Criminal Procedure, the Office of the City Prosecutor of Bacolod City is hereby ordered to present
additional evidence, relevant records and documents to enable this Court to evaluate and determine
Respondent did not accept the explanations made by the Office of the City Prosecutor and insisted
the existence of probable cause, to wit:
instead that the Jarder Resolution should form part of the records of the case. Thus, in an Order 11 dated
May 14, 2009, he required complainant to explain within five days from the receipt thereof why he
should not be cited for contempt under Section 3, Rule 71 of the Rules of Court. 12
Complainant received the aforementioned order on May 15, 2009 and requested for a ten-day
extension to comply with it.13
In an Order14 dated May 19, 2009, respondent denied the request of a ten-day extension and set the
hearing for the contempt charges on May 26, 2009. He likewise ordered the Clerk of Court to issue a
subpoena duces tecum ad testificandum to ACP Jarder directing him to testify on the existence of his
resolution dismissing the case against Palo and to Office of the City Prosecutors Records Officer Myrna
Vaegas to bring the entire record of the preliminary investigation of the Palo case.
Aggrieved, complainant immediately filed a motion for inhibition 15 against respondent on May 20, 2009
claiming:
4. That Complainant is now in a quandary because despite the fact that the production of the
disapproved resolution is not required under Circular Resolution No. 12 for purposes of
issuance of warrant of arrest, the Court is very much interested in its production and adding
insult to injury in foisting to cite in contempt the City Prosecutor for its non-production.
5. That the issuance of said order is capricious and whimsical and issued with grave abuse of
discretion. Because as it appears now, the presiding judge is very much interested in the
outcome of this case, thereby showing bias and prejudice against the prosecution. 16
Complainant likewise filed a petition for certiorari with a prayer for the issuance of a temporary
restraining order (TRO) to restrain respondent from proceeding 17 with the May 26, 2009 hearing of the
contempt proceedings. Complainants prayer for a TRO was granted in an Order dated May 25, 2009 by
Presiding Judge Pepito B. Gellada of the Regional Trial Court, Branch 53, Bacolod City.
In an Order18 dated June 15, 2009, Judge Gellada granted the petition for certiorari (Gellada Order)
holding that:
When a city or provincial prosecutor reverses the investigating assisting city or provincial prosecutor,
the resolution finding probable cause replaces the recommendation of the investigating prosecutor
recommending the dismissal of the case. The result would be that the resolution of dismissal no longer
forms an integral part of the records of the case. It is no longer required that the complaint or entire
records of the case during the preliminary investigation be submitted to and be examined by the judge.
The rationale behind this practice is that the rules do not intend to unduly burden trial judges by
requiring them to go over the complete records of the cases all the time for the purpose of determining
probable cause for the sole purpose of issuing a warrant of arrest against the accused. "What is
required, rather, is that the judge must have sufficient supporting documents (such as the complaint,
affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if
any) upon which to make his independent judgment or, at the very least, upon which to verify the
findings of the prosecutor as to the existence of probable cause. x x x. 19(Emphases supplied.)
The records thereafter make no mention of what happened in Criminal Case No. 09-03-16474.
On July 10, 2009, complainant executed the present administrative complaint and the same was
received by the Office of the Court Administrator (OCA) on August 20, 2009. 20 Complainant alleged
therein that respondent was guilty of gross ignorance of the law or procedure,21 gross
misconduct,22 and violation of Supreme Court Circular No. 12 dated June 30, 1987.23 He essentially
asserted that respondent unduly burdened himself by obsessing over the production of the records of
the preliminary investigation, especially the Jarder Resolution.
Respondent, in his Comment with Counter-Complaint for Disbarment of Prosecutor
Abanado,24 essentially reiterated the importance of the Jarder Resolution in deciding whether to issue a
warrant of arrest in Criminal Case No. 09-03-16474. He stated that the document was "material and
relevant in the proper conduct of preliminary investigation and the neutral, objective and circumspect
appreciation of the Judge of the evidence x x x for a proper and just determination whether probable
cause exist[s] or not for the possible issuance of a warrant of arrest." 25 As for respondents
countercharge, he claimed complainant should be disbarred for (a) filing a malicious and unfounded
administrative complaint; (b) disrespect and disobedience to judicial authority; (c) violation of the
sanctity of public records; (d) infidelity in the custody of documents; and (e) misconduct and
insubordination.26
In a Reply27 dated October 8, 2009, complainant vehemently denied respondents charges against him
and claimed that they were merely meant to discourage him from pursuing his just and valid
administrative complaint.
On February 2, 2011, the OCA submitted its report and recommendation. 28 It noted the June 15, 2009
Gellada Order which held that the resolution of the city or provincial prosecutor finding probable cause
replaces the recommendation of the investigating prosecutor. In such case, the resolution
recommending the dismissal is superseded, and no longer forms an integral part of the records of the
case and it need not be annexed to the information filed in court. Thus, the OCA held that complainant
cannot be held guilty of contempt. Nevertheless, because there was no showing that respondent was
motivated by bad faith and settled is the rule that the acts of a judge in his judicial capacity are not
subject to the disciplinary action, it recommended that:
(a) The administrative complaint against [respondent] be RE-DOCKETED as a regular
administrative case; and,
(b) [Respondent] be REPRIMANDED with STERN WARNING that a repetition of the same or
similar offenses will be dealt with more severely. 29
We adopt the factual findings of the OCA but find reason not to impose the recommended penalty of
reprimand on respondent.
We are tasked to determine whether respondent was administratively liable for gross ignorance of the
law, gross misconduct and violation of Supreme Court Circular No. 12 dated June 30, 1987 for
requiring the Office of the City Prosecutor to submit the Jarder Resolution to the court despite the
reversal thereof.
The conduct of a preliminary investigation is primarily an executive function. 30 Thus, the courts must
consider the rules of procedure of the Department of Justice in conducting preliminary investigations
whenever the actions of a public prosecutor is put in question. An examination of the 2008 Revised
Manual for Prosecutors of the Department of Justice-National Prosecution Service31 (DOJ-NPS Manual),
therefore, is necessary.
The pertinent provisions of the DOJ-NPS Manual are as follows:
J. PREPARATION OF THE RESOLUTION
1. When There is Lack of Probable Cause
If the investigating prosecutor does not find sufficient basis for the prosecution of the respondent, he
shall prepare the resolution recommending the dismissal of the complaint.
xxxx not be made known to the parties, their counsels and/or to any unauthorized person until the same
shall have been finally acted upon by the Chief State/Regional State/Provincial/City Prosecutor or his
duly authorized assistant and approved for promulgation and release to the parties.
3. Form of the Resolution and Number of Copies

xxxx
The resolution shall be written in the official language, personally and directly prepared and signed by
the investigating prosecutor. It shall be prepared in as many copies as there are parties, plus five (5)
additional copies. L. ACTION OF THE CHIEF STATE/REGIONAL STATE/PROVINCIAL OR CITY PROSECUTOR ON THE
RECOMMENDATORY RESOLUTION
xxxx
The Chief State/Regional State/Provincial or City Prosecutor concerned shall act on all resolutions
within a period of thirty (30) days from receipt thereof, extendible for another thirty (30) days in cases
e. Contents of the Body of the Resolution involving complex issues and/or heavy workload of the head of office, by either:

In general, the body of [the] resolution should contain: xxxx

1. a brief summary of the facts of the case; 3. reversing the recommendation of the investigating prosecutor, in which case, the Chief
State/Regional State/Provincial or City Prosecutor a. may file the corresponding Information in court
2. a concise statement of the issues involved; (except the Regional State Prosecutor); or

3. applicable laws and jurisprudence; and b. direct any other state prosecutor or assistant prosecutor, as the case may be, to do so.

4. the findings, including an enumeration of all the documentary evidence submitted by the In both instances, there is no more need for the head of office concerned to conduct another
parties and recommendations of the investigating prosecutor. preliminary investigation. (Emphases supplied.)

All material details that should be found in the information prepared by the Investigating Prosecutor Based on the foregoing, the guidelines for the documentation of a resolution by an investigating
shall be stated in the resolution. prosecutor, who after conducting preliminary investigation, finds no probable cause and recommends a
dismissal of the criminal complaint, can be summed as follows:

xxxx
(1) the investigating prosecutor prepares a resolution recommending the dismissal and
containing the following:
K. TRANSMITTAL OF THE RECOMMENDATORY RESOLUTION AND INFORMATION TOGETHER WITH THE
COMPLETE RECORD OF THE CASE
a. summary of the facts of the case;

The investigating prosecutor shall forward his recommendation and Information, together with the
complete records of the case, to the Chief State/ Regional State/ Provincial/City Prosecutor concerned b. concise statement of the issues therein; and
within five (5) days from the date of his resolution.
c. his findings and recommendations.
xxxx
(2) within five days from the date of his resolution, the investigating fiscal shall forward his
3. Documents to be Attached to the Information resolution to the provincial, city or chief state prosecutor, as the case may be, for review;

An information that is filed in court shall, as far as practicable, be accompanied by a copy of the
resolution of the investigating prosecutor, the complainants affidavit, the sworn statements of the
prosecutions witnesses, the respondents counter-affidavit and the sworn statements of his witnesses
and such other evidence as may have been taken into account in arriving at a determination of the
existence of probable cause.
4. Confidentiality of Resolutions
(3) if the resolution of the investigating prosecutor is reversed by the provincial, city or chief
state prosecutor, the latter may file the information himself or direct another assistant
prosecutor or state prosecutor to do so;
(4) the resolution of the investigating prosecutor shall be strictly confidential and may not be
released to the parties, their counsels and/or any other unauthorized person until the same
shall have been finally acted upon by the provincial, city or chief state prosecutor or his duly
authorized assistant and approved for promulgation and release to the parties; and

All resolutions prepared by an investigating prosecutor after preliminary investigation, whether his
recommendation be for the filing or dismissal of the case, shall be held in strict confidence and shall (5) that the resolution of the investigating prosecutor, the complainant's affidavit, the sworn
statements of the prosecution's witnesses, the respondent's counter-affidavit and the sworn
 statements of his witnesses and such other evidence, as far as practicable, shall be attached
to the information.
We find that there is nothing in the DOJ-NPS Manual requiring the removal of a resolution by an
investigating prosecutor recommending the dismissal of a criminal complaint after it was reversed by
the provincial, city or chief state prosecutor.
Nonetheless, we also note that attaching such a resolution to an information filed in court is optional
under the aforementioned manual. The DOJ-NPS Manual states that the resolution of the investigating
prosecutor should be attached to the information only "as far as practicable." Thus, such attachment is
not mandatory or required under the rules.
In view of the foregoing, the Court finds that respondent erred in insisting on the production of the
Jarder Resolution when all other pertinent documents regarding the preliminary investigation have
been submitted to his court, and in going so far as to motu proprio initiating a proceeding for contempt
against complainant.
However, not every judicial error is tantamount to ignorance of the law and if it was committed in good
faith, the judge need not be subjected to administrative sanction. 32 While complainant admitted that he
erred in insisting on the production of the Jarder Resolution despite the provisions of the DOJ-NPS
Manual, such error cannot be categorized as gross ignorance of the law as he did not appear to be
motivated by bad faith. Indeed, the rules of procedure in the prosecution office were not clear as to
whether or not an investigating prosecutors resolution of dismissal that had been reversed by the city
prosecutor should still form part of the records.
Neither did respondents action amount to gross misconduct.1wphi1 Gross misconduct presupposes
evidence of grave irregularity in the performance of duty. 33 In the case at bar, respondents act of
requiring complainant to explain why he should not be cited in contempt for his failure to submit the
Jarder Resolution in court was in accordance with established rules of procedure. Furthermore,
complainant did not abuse his contempt power as he did not pursue the proceedings in view of the May
29, 2009 and June 15, 2009 Gellada orders.34 Lastly, as previously discussed, respondent issued those
orders in good faith as he honestly believed that they were necessary in the fair and just issuance of
the warrant of arrest in Criminal Case No. 09-03-16474.
As far as the disbarment charges against complainant are concerned, under the Rules of Court,
complaints for disbarment against a lawyer are ordinarily referred to an investigator who shall look into
the allegations contained therein.35 However, in the interest of expediency and convenience, as the
matters necessary for the complete disposition of the counter-complaint are found in the records of the
instant case, we dispose of the same here. We find no merit in the countercharges. It appears from the
records that complainants non-submission of the Jarder Resolution was motivated by his honest belief
that his action was in accord with the procedures in the prosecution office. It likewise cannot be said
that the filing of the present administrative case against Judge Bayona was tainted with improper
motive or bad faith.
ACCORDINGLY, the complaint against Judge Abraham A. Bayona of the Municipal Trial Court in Cities,
Bacolod City, Branch 7 is DISMISSED.
The counter-complaint against City Prosecutor Armando P. Abanado is likewise DISMISSED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 175887 November 24, 2010
HEIRS OF THE LATE NESTOR TRIA, Petitioners,
vs.
ATTY. EPIFANIA OBIAS, Respondent.
DECISION
VILLARAMA, JR., J.:
Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, seeking to reverse and set aside the Decision 1 dated August 14, 2006 and
Resolution2 dated December 11, 2006 of the Court of Appeals (CA) in CA-G.R. SP No. 86210. The CA
denied the petition for mandamus/certiorari filed by the petitioners which assailed the Order 3 dated
March 24, 2004 of the Office of the President (OP) dismissing the murder charge against the
respondent.
The factual antecedents are as follows:
On May 22, 1998, at around 10:00 oclock in the morning at the Pili Airport in Camarines Sur, Engr.
Nestor Tria, Regional Director of the Department of Public Works and Highways (DPWH), Region V and
concurrently Officer-In-Charge of the 2nd Engineering District of Camarines Sur, was shot by a gunman
while waiting to board his flight to Manila. He was brought to a hospital but died the following day from
the lone gunshot wound on his nape. Subsequently, the incident was investigated by the National
Bureau of Investigation (NBI).
On July 31, 1998, NBI Regional Director Alejandro R. Tenerife, Chairman of Task Force Tria,
recommended to the Provincial Prosecutor of Camarines Sur the indictment of Roberto "Obet" Aclan y
Gulpo, Juanito "Totoy" Ona y Masalonga and Atty. Epifania "Fanny" Gonzales-Obias, for the murder of
Engr. Tria.
On the basis of statements given by twenty-six (26) individuals, autopsy and ballistic examination
reports, and relevant documents gathered,4 the NBI submitted its findings, as follows:
Our investigation disclosed that about two weeks before the incident ACLAN and ONA had been
conducting an almost daily stakeout at the DPWH 2nd Engineering District of Camarines Sur in Sta.
Elena, Iriga City where Regional Director TRIA was holding office from time to time as District Engineer
in concurrent capacity. Alternately ACLAN and ONA would ask the security guard on duty if Director
TRIA had already arrived and the usual days and time of his coming to the office. At noontime or early
afternoon, after waiting vainly for TRIAs arrival, the duo would leave, riding tandem on a red
motorcycle. During their surveillance it was ONA who frequently sat on the couch at the lobby of the
Engineering Building while ACLAN was waiting near their motorcycle at the parking space. At times
ONA would approach ACLAN to whisper a message and the latter would relay the message to someone
else through a hand-held radio. There were also some instances when ACLAN would wait at the lobby
while ONA was staying near the parked motorcycle. At one instance an employee had noticed a gun
tucked on the waistline of ACLAN.
Around 8:00 oclock in the morning of May 22, 1998, ACLAN and ONA were spotted in their usual
places at the 2nd Engineering District in Iriga City. ONA was wearing a loose, yellow long sleeved shirt,
maong pants and a pair of sneakers; ACLAN was in a white and gray striped shirt and a pair of maong
pants. Shortly before 9:00 a.m. on that day, THEO RUBEN CANEBA, a DPWH employee and newly
elected Municipal Councilor of Buhi, Camarines Sur, arrived. He was warmly greeted and congratulated
by his former co-employees outside the engineering building. It was at this point when CANEBA noticed
a man about 54" in height, sturdy, with semi-curly hair, wearing a white and gray-striped shirt with
maong pants and about 40 years old. The man (later identified through his photograph as ROBERTO
ACLAN) was looking intensely at him and was shifting position from left to right to get a better view of
him. Obviously, ACLAN was trying to figure out whether CANEBA was Director TRIA. After about 20
minutes, Administrative Officer JOSE PECUNDO announced to those who had some documents for
signature of Director TRIA to proceed to Pili Airport where TRIA would sign them before leaving for
Manila. Upon hearing this, ACLAN and ONA left hurriedly on board a red motorcycle. No sooner had
ACLAN and ONA left that CANEBA cautioned the guards to be extra alert because he had some sense of
foreboding about that man (referring to ACLAN).
Shortly after 10:00 a.m. on that day, Director TRIA arrived at the Airport. After signing some
documents at the parking lot he proceeded towards the pre-departure area on the second floor of the
airport building. ONA, who was waiting on the stairway, immediately followed TRIA as the latter was
going up the stairs. As TRIA was approaching the pre-departure area he was met by Atty. [E]PIFANIA
OBIAS who shook his hands and started conversing with him. It was at this juncture that a gunshot
rang out and TRIA dropped like a log on the floor, bleeding profusely from a gunshot wound at the back
of his head. As a commotion ensued, ONA was seen running down the stairway while tucking a gun on
his waistline. Even before ONA could come out of the doorway, ACLAN was already outside the
building, pointing a handgun at everybody obviously to discourage any attempt of pursuit while
swiftly stepping backward to where their motorcycle was parked. He then fired shots at an army man
who tried to chase ONA. The army man, who was then unarmed, sought cover behind a parked van.
ACLAN and ONA then boarded a red motorcycle and sped away. Director TRIA died from a lone gunshot
wound on his nape at the Mother Seton Hospital in Naga City the following day.
Atty. EPIFANIA OBIAS, on the other hand, admitted that she was with ROBERTO "OBET" ACLAN in the
early morning of May 22, 1998; that at about 7:00 a.m. on that day she went to the residence of
Director TRIA at Liboton, Naga City, had a brief talk with the latter and left immediately. She also
volunteered the information that ROBERTO ACLAN was not the gunman who had fired the fatal shot at
Director TRIA. She was also the last person seen talking with Director TRIA when the latter was gunned
down. A practicing lawyer, Atty. OBIAS also engages herself in real estate business on the side. In
1997 she had brokered a sale of real estate between and among spouses PRUDENCIO and LORETA
JEREMIAS, as Vendors, and Spouses NESTOR and PURA TRIA, as Vendees, over a .9165 hectare of
land in Balatas, Naga City. It was Atty. OBIAS who received, for and in behalf of the vendors, the full
payment of P2.8 Million of the sale from the TRIAs with the agreement that Atty. OBIAS would take
care of all legal processes and documentations until the Deed of Absolute Sale is delivered to the TRIA
family. After the death of TRIA, the surviving spouse and heirs made several attempts to contact Atty.
OBIAS to demand immediate delivery of the deed of sale, but the latter deliberately avoided the TRIA
family and, despite verbal and written demands, she failed and refused, as she still fails and refuses, to
fulfill her legal obligation to the TRIA family. At one instance, a representative of the TRIA family had
chanced upon Atty. OBIAS at her residence and demanded of her to deliver the deed of sale to the
TRIA family immediately. But Atty. OBIAS replied that Director TRIA had already disposed of the
property before his death, a claim that can no longer be disputed by Director TRIA as his lips had
already been sealed forever, except for the fact that neither the surviving spouse nor anyone of the
heirs had given any consent to the purported subsequent sale.
During the lifetime of Director TRIA, Atty. OBIAS was one of the frequent visitors of the TRIA family
and had been known to the family members as a friend and a close associate of Director TRIA. Yet, she
never attended the wake of Director TRIA nor made any gesture of sympathy or condolence to the
TRIA family up to the present time.5
During the preliminary investigation conducted by the Office of the Provincial Prosecutor, respondent
filed her Counter-Affidavit denying that she was in anyway involved with the killing of Engr. Tria.
Respondent admitted that Engr. Tria was a longtime friend and that she went to his residence at about
7:30 oclock in the morning of May 22, 1998. Since Engr. Tria had many visitors at that time, they just
agreed to see each other at the airport later. Respondent denied having admitted to NBI Supervising
Agent (SA) Atty. Manuel Eduarte that she was with Aclan then, and neither did she volunteer the
information that Aclan was not the triggerman. Respondent submitted the sworn statement of Edgar
Awa, one of those witnesses interviewed by the NBI, who declared that Aclan and Ona were at the Iriga
City DPWH Office in the morning of May 22, 1998 at 8:00 oclock in the morning. Such is also
corroborated by the sworn statement of another NBI witness, Theo Ruben Caneba, who declared that
when he arrived at the DPWH Iriga office at about 8:30 oclock in the morning of May 22, 1998, he
noticed the presence of Aclan who was supposedly eyeing him intensely, and that after it was
announced that those who have some transactions with Engr. Tria should just proceed to the airport,
Caneba saw Aclan with a companion later identified as Ona, immediately left the compound in a
motorcycle.6
Respondent likewise denied that she met Engr. Tria as the latter was approaching the pre-departure
area of the airport and that she supposedly shook his hands. The truth is that when she and Engr. Tria
met at the airport, the latter took her by the arm and led her to a place where they talked. Respondent
asserted that from the totality of evidence gathered by the NBI, it has not established prima facie the
existence of conspiracy as to implicate her in the death of Engr. Tria. 7
On July 2, 1999, the Office of the Provincial Prosecutor of Camarines Sur issued a resolution 8 directing
the filing of an information for murder against Aclan and Ona but dismissing the case for insufficiency
of evidence as against herein respondent, Atty. Epifania Obias.
Petitioners appealed to the Department of Justice (DOJ) assailing the Provincial Prosecutors order to
dismiss the charge against respondent.9 On January 25, 2000, then Justice Secretary Serafin Cuevas
issued a Resolution10modifying the July 2, 1999 resolution of the Provincial Prosecutor and directing the
latter to include respondent in the information for murder filed against Aclan and Ona.
The DOJ agreed with the contention of petitioners that there is interlocking circumstantial evidence
sufficient to show that respondent conspired with Aclan and Ona in the killing of Engr. Tria. It cited the
following circumstances: (1) Despite respondents admission regarding her friendship and close
association with Engr. Tria, her visit at his house early morning of the same day, and her presence at
the airport where she met Engr. Tria and was the person last seen with him, respondent never lifted a
finger to help Engr. Tria when he was gunned down and neither did she volunteer to help in the
investigation of Engr. Trias murder nor visit the grieving family to give her account of the fatal
shooting of Engr. Tria, which behavior negates her claim of innocence; (2) In the sworn statement of
NBI SA Manuel Eduarte, he declared that respondent admitted to him that she and Aclan were together
when she went to the residence of Engr. Tria at 7:30 in the morning of May 22, 1998 and that while
she later denied such admission and explained that Aclan could not have been with her as the latter
was at the DPWH Regional office at about 8:00 a.m., such does not render impossible the fact of
Aclans presence at the residence of Engr. Tria considering that the time given was mere approximation
by respondent not to mention the possibility that Aclan could have easily gotten to the DPWH office
after coming from the house of Engr. Tria using the same motorcycle which Aclan used as get-away
vehicle at the airport; (3) SA Eduartes statement cannot be simply disregarded as he had no ill motive
to impute upon respondent the said admission; and (4) The double sale of the property wherein the
Tria spouses already paid 2.8 million to respondent who brokered the sale, only to sell it to another
buyer for 3.3 million, without turning over to the Tria family the deed of sale and her failure to attend
to the registration of the land in the name of the Tria spouses this strongly establishes the fact that
respondent had the strongest motive to have Engr. Tria murdered by Aclan and Ona who were
obviously guns for hire. Also mentioned was the respondents representation of Aclan as the latters
defense lawyer in a frustrated murder case which was dismissed. Such client-lawyer relationship could
have spawned respondents ascendancy over Aclan.11
The DOJ was thus convinced that the sequence of events and respondents conduct before, during and
after the killing of Engr. Tria undeniably points to her complicity with Aclan and Ona. Moreover, it
pointed out that respondents defense consisted merely of denial which cannot prevail over the positive
allegations of witnesses showing her complicity with the gunmen in the perpetration of the crime.12
Respondent along with Aclan and Ona filed a motion for reconsideration of the DOJs January 25, 2000
resolution.13 On February 18, 2000, Justice Secretary Artemio G. Tuquero issued a directive to State
Prosecutor Josefino A. Subia who was the Acting Provincial Prosecutor of Camarines Sur, to defer, until
further orders, the filing of the information for the inclusion of respondent, in order not to render moot
the resolution of the motion for reconsideration of the January 25, 2000 resolution. 14
On September 17, 2001, then Justice Secretary Hernando B. Perez issued a resolution denying
respondents motion for reconsideration.15
In the meantime, the information charging Aclan and Ona has already been filed with the Regional Trial
Court (RTC) of Pili, Camarines Sur. Upon request however, the venue was transferred to the RTC
Quezon City by resolution of this Court in A.M. No. 00-3145-RTC.16
Sometime in October 2001, the prosecution filed with the RTC Quezon City a Motion to Admit Amended
Information to include respondent as one of the accused for the murder of Tria.17
On October 8, 2001, respondent filed a Notice of Appeal with the DOJ under the provisions of
Administrative Order No. 18, series of 1987.18 In a letter dated December 3, 2001 addressed to
respondents counsel, the DOJ denied respondents notice of appeal on the ground that pursuant to
Memorandum Circular No. 1266 dated November 4, 1983, as amended by Memorandum Circular No.
58 dated June 30, 1993, appeals to the OP where the penalty prescribed for the offense charged is
"reclusion perpetua to death," shall be taken by petition for review.19 Respondent filed a motion for
reconsideration of the denial of her notice of appeal. 20
It appears that on January 28, 2002, the RTC Quezon City issued an order admitting the amended
information which includes respondent. The latter then filed with the RTC a Motion for Reconsideration
with Prayer for the Suspension of the Issuance of a Warrant of Arrest dated February 28, 2002, a copy
of which was furnished to the Legal Office of the OP on March 6, 2002. 21
On February 6, 2002, the DOJ denied respondents motion for reconsideration stating that the proper
procedure is the filing of an appeal or petition for review with the OP and not before the DOJ. Hence,
the case was considered closed and terminated.22 However, the DOJ directed the Provincial Prosecutor
to forward the records of the case to the OP in compliance with the Order dated October 18, 2001 of
Deputy Executive Secretary Jose Tale.23 It turned out that respondent filed on October 1, 2001 a notice
of appeal before the OP (O.P. Case No. 01-J-118).24
On June 27, 2003, Senior Deputy Executive Secretary Waldo Q. Flores adopted the findings of facts
and conclusions of law in the appealed Resolutions dated January 25, 2000 and September 17, 2001 of
the DOJ, and affirmed the same.25 Respondent filed a motion for reconsideration on September 17,
2003.26 On December 3, 2003, respondent filed a Supplemental Pleading and Submission of Newly
Discovered Evidence.27
In his Order dated March 24, 2004, Presidential Assistant Manuel C. Domingo granted respondents
motion for reconsideration and reversed the DOJ resolutions. It was held that mere close relationship
without any corroborative evidence showing intent to perpetrate the crime is not enough probable
cause. The conclusion that respondent was the only one interested in the death of Engr. Tria because
of the double sale from which respondent supposedly wanted to get away from her obligation to the
Tria spouses, was based merely on the opinion of SA Eduarte. Also, since Mrs. Pura Tria admitted she
knew of the said transaction, she could very well file a civil case for collection such that even with the
death of Engr. Tria, respondent will not be able to evade her obligation. As to the presence of both
Aclan and respondent at the house of Engr. Tria early morning before the incident took place, the same
was not sufficiently established, as shown by the affidavit of Felix Calayag. The OP thus concluded
there was no interlocking circumstantial evidence of respondents acts before, during and after the
killing of Engr. Tria that would establish conspiracy among Aclan, Ona and respondent to commit the
crime. Accordingly, the case against respondent was dismissed for insufficiency of evidence.28
Petitioners filed a motion for reconsideration 29 which was denied by the OP in its Order30 dated June 10,
2004. Before the CA, petitioners filed a petition for mandamus/certiorari under Rule 65 of the 1997
Rules of Civil Procedure, as amended.
On August 14, 2006, the CA rendered the assailed Decision denying the petition. On the issue of the
alleged grave abuse committed by the OP in modifying the findings of the DOJ instead of ordering the
Secretary of Justice to reopen/review the case in accordance with Memorandum Circular No. 58, the CA
held that it was not mandatory for the OP to do so. As for the evaluation of factual matters and
credence to be accorded to the testimonies of respondent and her witnesses, the CA declared that
these are not proper grounds in a petition for certiorari which is confined only to the correction of
errors of jurisdiction. Neither will mandamus lie to compel the performance of a discretionary duty in
view of the failure of petitioners to show a clear and certain right to justify the grant of relief. 31
Their motion for reconsideration having been denied by the CA, petitioners are now before us
contending that the CA manifestly overlooked relevant facts which, if properly considered, would justify
a different conclusion. They maintain that the CA decision is contrary to law and established
jurisprudence.
Petitioners argue that since the preliminary investigation and review of the resolution finding probable
cause have already been terminated years before respondents appeal to the OP -- more so with the
earlier denial of the said appeal for failing to raise any new issue not raised before the DOJ -- the
alleged new affidavits should have been referred to the DOJ for reinvestigation. As to the affidavits of
Calayag and Jennis Nidea, said witnesses have not been confronted by the petitioners in violation of
the latters right to due process. Thus, the CA decision affirmed the OPs dismissal of the case against
respondent at the level of the DOJ without referral to the said office and without consideration of the
pendency of the case at RTC of Quezon City, Branch 76. Lacking such authority on appeal to appreciate
newly submitted affidavits of Calayag and Nidea, Presidential Assistant Manuel C. Domingo arrogated
unto himself the judicial task of analyzing the said documents without confrontation of the witnesses by
the other party. Further, the CA overlooked the fact that such affidavits submitted by respondent as
newly discovered evidence was merely a ploy in order for her appeal to qualify as raising new and
material issues which were supposedly not raised before the DOJ. 32
Petitioners further argue that the CA should not have affirmed the OPs dismissal of the murder charge
against the respondent pursuant to Crespo v. Mogul33 that once an information has been filed in court,
any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the court.
On the procedural issue raised by the petitioners, we hold that the OP did not err in taking cognizance
of the appeal of respondent, and that the CA likewise had jurisdiction to pass upon the issue of
probable cause in a petition challenging the OPs ruling.
Memorandum Circular No. 5834 provides:
xxxx
No appeal from or petition for review of decisions/orders/resolutions of the Secretary of Justice on
preliminary investigations of criminal cases shall be entertained by the Office of the President, except
those involving offenses punishable by reclusion perpetua to death wherein new and material issues
are raised which were not previously presented before the Department of Justice and were not ruled
upon in the subject decision/order/resolution, in which case the President may order the Secretary of
Justice to reopen/review the case, provided, that, the prescription of the offense is not due to lapse
within six (6) months from notice of the questioned resolution/order/decision, and provided further,
that, the appeal or petition for review is filed within thirty (30) days from such notice.
Henceforth, if an appeal or petition for review does not clearly fall within the jurisdiction of the Office of
the President, as set forth in the immediately preceding paragraph, it shall be dismissed outright and
no order shall be issued requiring the payment of the appeal fee, the submission of appeal
brief/memorandum or the elevation of the records to the Office of the President from the Department
of Justice.
If it is not readily apparent from the appeal or petition for review that the case is within the jurisdiction
of the Office of the President, the appellant/petitioner shall be ordered to prove the necessary
jurisdictional facts, under penalty of outright dismissal of the appeal or petition, and no order to pay
the appeal fee or to submit appeal brief/memorandum or to elevate the records of the case to the
Office of the President shall be issued unless and until the jurisdictional requirements shall have been
satisfactorily established by the appellant/petitioner.
x x x x (Emphasis supplied.)
The offense for which respondent was charged is punishable by reclusion perpetua to death, which is
clearly within the jurisdiction of the OP in accordance with Memorandum Circular No. 58. Respondents
appeal was initially dismissed when Senior Deputy Executive Secretary Waldo Q. Flores issued the
Resolution dated June 27, 2003 affirming in toto the appealed resolutions of the Secretary of Justice
and adopting the latters findings and conclusions. However, subsequent to her filing of a motion for
reconsideration of the said June 27, 2003 Resolution, respondent filed a Supplemental Pleading and
Submission of Newly Discovered Evidence. The arguments of respondent in support of her motion for
reconsideration were duly considered by the OP in reexamining the appealed resolutions. As the word
"may" in the second paragraph of Memorandum Circular No. 58 signifies, it is not mandatory for the
President to order the DOJ to reopen or review respondents case even if it raised "new and material
issues" allegedly not yet passed upon by the DOJ. Hence, the OP acted well within its authority in
reexamining the merits of respondents appeal in resolving the motion for reconsideration.
In arguing that the CA gravely abused its discretion when it affirmed the OPs dismissal of the murder
charge against respondent, petitioner invoked our ruling in Crespo v. Mogul that any disposition of the
case rests on the sound discretion of the court once an information has been filed with it.
A refinement of petitioners understanding of the Crespo ruling is in order. In Crespo, we ruled that
after the information has already been filed in court, the courts permission must be secured should the
fiscal find it proper that reinvestigation be made. Thereafter, the court shall consider and act upon the
findings and recommendations of the fiscal.
In Ledesma v. Court of Appeals,35 we clarified that the justice secretary is not precluded from
exercising his power of review over the investigating prosecutor even after the information has already
been filed in court. However, the justice secretarys subsequent resolution withdrawing the information
or dismissing the case does not cause the court to lose jurisdiction over the case. In fact, the court is
duty-bound to exercise judicial discretion and its own independent judgment in assessing the merits of
the resulting motion to dismiss filed by the prosecution, to wit:
When confronted with a motion to withdraw an information on the ground of lack of probable cause
based on a resolution of the secretary of justice, the bounded duty of the trial court is to make an
independent assessment of the merits of such motion. Having acquired jurisdiction over the case, the
trial court is not bound by such resolution but is required to evaluate it before proceeding further with
the trial. While the secretarys ruling is persuasive, it is not binding on courts. A trial court, however,
commits reversible error or even grave abuse of discretion if it refuses/neglects to evaluate such
recommendation and simply insists on proceeding with the trial on the mere pretext of having already
acquired jurisdiction over the criminal action. (Underscoring supplied.)
Further, it is well within the courts sound discretion to suspend arraignment to await the result of the
justice secretarys review of the correctness of the filing of the criminal information. 36 There are
exceptional cases, such as in Dimatulac v. Villon37 wherein we have suggested that it would have been
wiser for the court to await the justice secretarys resolution before proceeding with the case to avert a
miscarriage of justice. Evidently however, this is not a hard and fast rule, for the court has complete
control over the case before it.
Petitioners argument that the non-referral by the OP to the DOJ of the appeal or motion for
reconsideration filed by the respondent had deprived them of the opportunity to confront and cross-
examine the witnesses on those affidavits belatedly submitted by the respondent is likewise untenable.
Under the procedure for preliminary investigation provided in Section 3, Rule 112 of the Revised Rules
of Criminal Procedure, as amended,38 in case the investigating prosecutor conducts a hearing where
there are facts and issues to be clarified from a party or witness, "[t]he parties can be present at the
hearing but without the right to examine or cross-examine. They may, however, submit to the
investigating officer questions which may be asked to the party or witness concerned."39Hence, the
non-referral by the OP to the DOJ of the motion for reconsideration of respondent, in the exercise of its
discretion, did not violate petitioners right to due process.
In resolving the issue of whether the CA gravely abused its discretion in affirming the OPs reversal of
the ruling of the Secretary of Justice, it is necessary to determine whether probable cause exists to
charge the respondent for conspiracy in the murder of Engr. Tria.
A prosecutor, by the nature of his office, is under no compulsion to file a particular criminal information
where he is not convinced that he has evidence to prop up its averments, or that the evidence at hand
points to a different conclusion. The decision whether or not to dismiss the criminal complaint against
respondent is necessarily dependent on the sound discretion of the investigating prosecutor and
ultimately, that of the Secretary of Justice.40
The findings of the prosecutor with respect to the existence or non-existence of probable cause is
subject to the power of review by the DOJ. Indeed, the Secretary of Justice may reverse or modify the
resolution of the prosecutor, after which he shall direct the prosecutor concerned either to file the
corresponding information without conducting another preliminary investigation, or to dismiss or move
for dismissal of the complaint or information with notice to the parties.41 Ordinarily, the determination
of probable cause is not lodged with this Court. Its duty in an appropriate case is confined to the issue
of whether the executive or judicial determination, as the case may be, of probable cause was done
without or in excess of jurisdiction or with abuse of discretion amounting to want of jurisdiction.
However, this Court may ultimately resolve the existence or non-existence of probable cause by
examining the records of the preliminary investigation when necessary for the orderly administration of
justice,42 or to avoid oppression or multiplicity of actions.43
In reversing the DOJs finding of probable cause, the OP found merit in the argument of the respondent
that the DOJs finding that she was with Aclan when she went to the residence of Engr. Tria early in the
morning of May 22, 1998, was not sufficiently established. The OP gave more weight to the
affidavit44 of Calayag (attached to respondents supplemental pleading on motion for reconsideration) -
- stating that Aclan was not around when they and respondent, among other visitors, were at Engr.
Trias house at that time -- than that account given by SA Eduarte which was uncorroborated. As to the
double sale allegedly committed by the respondent from which the latters strong motive to liquidate
Engr. Tria was inferred, the OP found this as a mere expression of opinion by the investigators
considering that Engr. Trias widow, Mrs. Pura Tria, categorically admitted her knowledge of the said
transaction. Neither was the OP persuaded by the NBIs "kiss of death" theory since it is but a
customary way of greeting a friend to shake hands and hence it cannot imply that respondent utilized
this as a signal or identification for the gunman to shoot Engr. Tria. Respondents alleged indifference
immediately after Engr. Tria was gunned down while conversing with her, was also negated by the
affidavit of an employee of Philippine Air Lines based at the Pili Airport, stating that right after the
incident took place he saw respondent in the radio room in shock and was being given water by
another person.
Considering the totality of evidence, the OP was convinced there was nothing suspicious or abnormal in
respondents behavior before, during and after the fatal shooting of Engr. Tria as to engender a well-
founded belief of her complicity with the killing of Engr. Tria, thus:
The act of Obias in failing to help the deceased when the latter was shot should not be taken against
her. In a tragic moment such as the incident, it is safe to assume that one could be overtaken by
shock, grief or fear especially if the one involved is an acquaintance or a friend, leaving the former
unable to act or think properly. Obias could have been overtaken by shock or grief making her body
unable to function or think properly.
Moreover, the act of Obias in failing to contact or to visit the family of the deceased during the wake of
the latter should not be taken against her. With rumors circulating that she is a possible primary
suspect over the death of Engr. Tria, and to avoid any unnecessary confrontation with the family of the
latter, whose emotions could be uncontrollable or animated by anger or revenge, Obias act in keeping
her silence and distance is permissive.
The behavior of Obias before, during and after the incident should not be taken against her. It is
worthy to note that Obias was confronted with extraordinary situations or circumstances wherein a
definite or common behavior could not be easily formulated or determined. Ones behavior or act
during said extraordinary situations should not prejudice the actor if the latter failed to act or behave in
such a manner acceptable to all or which, upon reflection afterwards, could be deemed the more
appropriate, common or acceptable reaction.
Obias actions could be presumed common or acceptable considering the attendant circumstances
surrounding the same, and they do not evince or show any malice or intent whatsoever. 45
The relevant portion of SA Eduartes affidavit reads:
3. That our first meeting was on or about 10:00 AM of May 25, 1998 at our office. She was
accompanied by a certain RODEL who was introduced as her Office Assistant. On said
meeting she verbally admitted the fact that she was the last person conversing with Dir. Tria
when shot at the airport on or about 10:20 AM of May 22, 1998; that the shooting took place
even before her first step after their short talk, but she could not identify the assailant/s
because she had blacked out or became senseless because of fear;
4. That our second meeting was on or about 11:20 AM of May 28, 1998 at our office and she
was alone then. That she stood pat on her claim that she was overwhelmed with fear and
became oblivious of her surroundings after the gunshot that hit Dir TRIA. When asked about
the veracity of the information that she was seen at TRIAs residence at Molave St., Liboton,
Naga City, Atty. Obias admitted that she was indeed at the residence of Director TRIA at
around 7:30 AM of May 22, 1998, claiming her visit as official matter, she being the lawyer of
the victim in some cases;
5. That finally we met on or about 5:00 PM of June 1, 1998 at the restaurant of Villa Caceres
Hotel, Magsaysay Avenue, Naga City, upon arrangement made by our former Assistant
Regional Director FRANCISCO "FRANK" OBIAS of NBI (now retired) and father-in-law of Atty.
FANNY OBIAS; That said meeting materialized when on the morning of the said date, Atty.
FRANK OBIAS visited me at the office asking why her daughter-in-law FANNY was being
implicated in the case of TRIA. Verbally, he said, FANNY had admitted to him that our
suspect ROBERTO "OBET" ACLAN was with her at the residence of TRIA at about 7:30 AM on
22 May 1998, but he (Aclan) was not the triggerman. During this meeting, ATTY. FRANK
OBIAS was also around. Atty. FANNY OBIAS said she was worried because two (2) men who
introduced themselves as NBI Agents visited her mother at Godofredo Reyes, Sr., (GRS)
Ragay, Camarines Sur, telling the latter that she, (FANNY) was being tagged as the finger
(identifier of the victim to the assailant) in the case of TRIA. This matter causes anxiety to
her mother, she said. On said meeting, she admitted OBET ACLAN was with her at the
residence of TRIA on or about 7:30 AM on May 22, 1998, and further, that OBET ACLAN was
actually at the Pili Airport on that morning but insisted that ROBERTO "OBET" ACLAN was not
the triggerman; x x x.46 (Emphasis supplied.)
In its Comment filed before the CA, the Solicitor General argued that the alleged "interlocking
circumstantial evidence" is pure speculation. To render even a preliminary finding of culpability based
thereon does not sit well with the cherished "right to be presumed innocent" under Section 14 (2),
Article III of the 1987 Constitution. Moreover, the case for the prosecution must stand or fall on its own
merit and cannot be allowed to draw strength from the weakness of evidence for the defense. 47
Petitioners, however, maintain that the records are replete with abundant proof of respondents
complicity in the murder of Engr. Tria. They cite the following circumstances showing the existence of
probable cause against the respondent: (1) In a radio interview in Naga City sometime in August 1998,
respondent admitted that Aclan is her relative and that she is close to the family of Ona; (2)
Respondent was present at the residence of Engr. Tria in the morning of May 22, 1998 between 7:00 to
7:30 a.m. with passengers in her vehicle waiting outside, and when later she was invited by the NBI as
possible witness considering that she was the last person seen talking to Engr. Tria before the latter
was gunned down at the airport, respondent admitted to SA Eduarte that Aclan was with her that
morning at the residence of Engr. Tria; (3) The pre-arranged signal provided by respondent was in the
form of a handshake while Ona was at the stairway observing the two, and thereupon Ona waited for
the right moment to shoot Engr. Tria from behind; (4) Respondent despite having claimed to be a
friend of the Tria family, just left the scene of the crime without asking for help to render assistance to
her fallen friend; instead, she just boarded the plane as if no astounding event took place before her
very eyes which snuffed the life of her longtime client-friend; and (5) In a conduct unbecoming of
Filipinos, respondent never bothered to see the grieving family of Engr. Tria at anytime during the
wake, burial or thereafter, and neither did she give them any account of what she saw during the
shooting incident, which does not constitute normal behavior.
Probable cause is defined as the existence of such facts and circumstances as would excite the belief in
a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged
was guilty of the crime for which he was prosecuted.48 It is a reasonable ground of presumption that a
matter is, or may be, well-founded, such a state of facts in the mind of the prosecutor as would lead a
person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a
thing is so. The term does not mean "actual and positive cause" nor does it import absolute certainty.
It is merely based on opinion and reasonable belief. 49 A finding of probable cause merely binds over the
suspect to stand trial; it is not a pronouncement of guilt. 50
On the other hand, conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it.51 Direct proof of previous agreement to commit a
crime is not necessary. Conspiracy may be shown through circumstantial evidence, deduced from the
mode and manner in which the offense was perpetrated, or inferred from the acts of the accused
themselves when such lead to a joint purpose and design, concerted action, and community of
interest.52
We reverse the OPs ruling that the totality of evidence failed to establish a prima facie case against the
respondent as a conspirator in the killing of Engr. Tria.
To begin with, whether or not respondent actually conspired with Aclan and Ona need not be fully
resolved during the preliminary investigation. The absence or presence of conspiracy is factual in
nature and involves evidentiary matters. The same is better left ventilated before the trial court during
trial, where the parties can adduce evidence to prove or disprove its presence. 53
Preliminary investigation is executive in character. It does not contemplate a judicial function. It is
essentially an inquisitorial proceeding, and often, the only means of ascertaining who may be
reasonably charged with a crime.54 Prosecutors control and direct the prosecution of criminal offenses,
including the conduct of preliminary investigation, subject to review by the Secretary of Justice. The
duty of the Court in appropriate cases is merely to determine whether the executive determination was
done without or in excess of jurisdiction or with grave abuse of discretion. Resolutions of the Secretary
of Justice are not subject to review unless made with grave abuse. 55
After a careful evaluation of the entire evidence on record, we find no such grave abuse when the
Secretary of Justice found probable cause to charge the respondent with murder in conspiracy with
Aclan and Ona. The following facts and circumstances established during preliminary investigation were
sufficient basis to incite reasonable belief in respondents guilt: (a) Motive - respondent had credible
reason to have Engr. Tria killed because of the impending criminal prosecution for estafa from her
double sale of his lot prior to his death, judging from the strong interest of Engr. Trias family to run
after said property and/or proceeds of the second sale to a third party; (b) Access - respondent was
close to Engr. Trias family and familiar with his work schedule, daily routine and other transactions
which could facilitate in the commission of the crime eventually carried out by a hired gunmen, one of
whom (Aclan) she and her father categorically admitted being in her company while she visited Engr.
Tria hours before the latter was fatally shot at the airport; (c) Suspicious Behavior -- respondent while
declaring such close personal relationship with Engr. Tria and even his family, failed to give any
satisfactory explanation why she reacted indifferently to the violent killing of her friend while they
conversed and shook hands at the airport. Indeed, a relative or a friend would not just stand by and
walk away from the place as if nothing happened, as what she did, nor refuse to volunteer information
that would help the authorities investigating the crime, considering that she is a vital eyewitness. Not
even a call for help to the people to bring her friend quickly to the hospital. She would not even dare
go near Engr. Trias body to check if the latter was still alive.
All the foregoing circumstances, in our mind, and from the point of view of an ordinary person, lead to
a reasonable inference of respondents probable participation in the well-planned assassination of Engr.
Tria. We therefore hold that the OP in reversing the DOJ Secretarys ruling, and the CA in affirming the
same, both committed grave abuse of discretion. Clearly, the OP and CA arbitrarily disregarded facts
on record which established probable cause against the respondent.
WHEREFORE, premises considered, the petition is hereby GRANTED. The Decision dated August 14,
2006 and Resolution dated December 11, 2006 of the Court of Appeals in CA-G.R. SP No. 86210 are
REVERSED and SET ASIDE. The January 25, 2000 Resolution of then Justice Secretary Serafin Cuevas
modifying the July 2, 1999 resolution of the Provincial Prosecutor of Camarines Sur and directing the
latter to include respondent in the information for murder filed against Aclan and Ona is hereby
REINSTATED and UPHELD.
No costs.
SO ORDERED.
Topic Procedure in Metro Manila vs Outside metro Manila
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
A.M. No. MTJ-07-1666 September 5, 2012
(Formerly A.M. OCA I.P.I. No. 05-1761-MTJ)
GERLIE M. UY and MA. CONSOLACION T. BASCUG, Complainants,
vs.
JUDGE ERWIN B. JAVELLANA, MUNICIPAL TRIAL COURT, LA CASTELLANA, NEGROS
OCCIDENTAL,Respondent.
DECISION
LEONARDO-DE CASTRO, J.:
This administrative case arose from a verified complaint 1 for "gross ignorance of the law and
procedures, gross incompetence, neglect of duty, conduct improper and unbecoming of a judge, grave
misconduct and others," filed by Public Attorneys Gerlie 2 M. Uy (Uy) and Ma. Consolacion T. Bascug
(Bascug) of the Public Attorneys Office (PAO), La Carlotta District, against Presiding Judge Erwin 3 B.
Javellana (Javellana) of the Municipal Trial Court (MTC), La Castellana, Negros Occidental.
Public Attorneys Uy and Bascug alleged the following in their complaint:
First, Judge Javellana was grossly ignorant of the Revised Rule on Summary Procedure. Public
Attorneys Uy and Bascug cited several occasions as examples: (a) In Crim. Case No. 04-097, entitled
People v. Cornelio, for Malicious Mischief, Judge Javellana issued a warrant of arrest after the filing of
said case despite Section 16 of the Revised Rule on Summary Procedure; (b) In Crim. Case No. 04-
075, entitled People v. Celeste, et al., for Trespass to Dwelling, Judge Javellana did not grant the
motion to dismiss for non-compliance with the Lupon requirement under Sections 18 and 19(a) of the
Revised Rule on Summary Procedure, insisting that said motion was a prohibited pleading; (c) Also in
People v. Celeste, et al., Judge Javellana refused to dismiss outright the complaint even when the same
was patently without basis or merit, as the affidavits of therein complainant and her witnesses were all
hearsay evidence; and (d) In Crim. Case No. 02-056, entitled People v. Lopez, et al., for Malicious
Mischief, Judge Javellana did not apply the Revised Rule on Summary Procedure and, instead,
conducted a preliminary examination and preliminary investigation in accordance with the Revised
Rules of Criminal Procedure, then set the case for arraignment and pre-trial, despite confirming that
therein complainant and her witnesses had no personal knowledge of the material facts alleged in their
affidavits, which should have been a ground for dismissal of said case.Second, Judge Javellana gave
the impression that he was a co-agent in a surety company with a certain Leilani "Lani" Manunag
(Manunag). Judge Javellana had conveyed to the public on several occasions that Manunag was in a
special position to influence him in granting provisional liberty to the accused. 4 In different cases, Judge
Javellana (a) instructed the wife of an accused to file the Motion to Reduce Bond prepared by the PAO
with Manunag, leading the wife to believe that Manunag was a court personnel, hence, said Motion was
never filed with the MTC and, instead of the cash bond the accused intended to post, the accused was
released on a surety bond issued by Manunags company for which the accused still had to pay
premium;5 (b) reduced the bail from 40,000.00 to 30,000.00, consistent with the reduced bail
amount Manunag instructed the representative of the accused to seek, not to 10,000.00 as prayed
for by the PAO in the Motion for Reduction of Bail or to 20,000.00 as recommended by the Chief of
Police;6 (c) did not warn Manunag against getting involved in court processes as she was engaged in
surety insurance and did not even question a counter-affidavit of an accused prepared by "Lani;"7 (d)
instructed the relatives of the accused to go to Manunag who knew how to "process" an affidavit of
desistance, and when said relatives did approach Manunag, the latter charged them fees; 8 (e) did not
set the Motion to Reduce Bail for hearing but granted the same because it was filed by "the intimate
friend of judge who is an agent of surety" and took cognizance of the amount of premium for the
surety bond in determining the amount of bail;9 (f) denied the Motion to Extend Time to File Counter-
Affidavit for violation of the three-day notice rule, but granted the Motion to Reduce Bail facilitated by
Manunag even when it was filed in violation of the same rule;10 and (g) issued warrants of arrest under
questionable circumstances, more particularly described in the immediately succeeding paragraph, in
which cases, the bail bonds of the accused were facilitated by Manunag.
Third, Judge Javellana violated Section 6(b), Rule 112 of the Revised Rules of Criminal Procedure and
issued warrants of arrest without propounding searching questions to the complainants and their
witnesses to determine the necessity of placing the accused under immediate custody. As a result,
Judge Javellana issued warrants of arrest even when the accused had already voluntarily surrendered
or when a warrantless arrest had been effected.
Fourth, Judge Javellana failed to observe the constitutional rights of the accused as stated in Section
12(1), Article III of the Constitution. Judge Javellana set Crim. Case No. 03-097, entitled People v.
Bautista,11 for preliminary investigation even when the accused had no counsel, and proceeded with
said investigation without informing the accused of his rights to remain silent and to have a counsel.
Fifth, Judge Javellana was habitually tardy. The subpoena in Civil Case No. 05-001, entitled Villanueva
v. Regalado,12 only stated that the hearing would be "in the morning," without indicating the time.
Judge Javellana failed to arrive for the pre-trial of the case set in the morning of April 14, 2005. Judge
Javellana was still a no-show when the pre-trial was reset in the morning of April 15, 2005 and May 3,
2005. Finally, anticipating Judge Javellanas tardiness, the pre-trial was rescheduled at 1:30 in the
afternoon of another date.
Sixth, Judge Javellana whimsically or inconsistently implemented laws and rules depending on stature
of the parties, persons accompanying the parties, lawyers of the parties, and his personal relations with
the parties/lawyers. Judge Javellana, in several cases, 13 denied or refused to receive Motions for
Extension of Time to File Counter-Affidavits signed only by the accused, yet in other cases, 14 granted
such motions. In another case,15Judge Javellana denied the Motion to Extend Time to File Counter-
Affidavit for violation of the three-day notice rule, but granted the Motion to Reduce Bail, which was in
violation of the same rule. Judge Javellanas inconsistent and irregular ruling could be due to the fact
that the former motion was filed by Public Attorney Bascug, with whom Judge Javellana had an axe to
grind, while the latter motion was facilitated by Manunag.
Seventh, Judge Javellana also adopted the mantra that the "litigants are made for the courts" instead
of "courts for the litigants." In Crim. Case No. 03-104, entitled People v. Fermin, the accused, assisted
by Public Attorney Uy, pleaded guilty to the crime of attempted homicide. The accused filed a
Petition/Application for Probation, prepared by the PAO but signed only by the accused. Judge Javellana
refused to accept said Petition/Application and required the father of the accused to return the
Petition/Application all the way from the MTC in La Castellana to the PAO in La Carlota, despite the
great distance between these two cities. The PAO already adopted the practice of preparing the
motions for extension of time to file counter-affidavit, motions for release of minor, or applications for
probation, but letting the accused themselves or their parents (in case the accused were minors) sign
the motions/applications, thus, enabling the PAO to serve as many clients as possible despite the lack
of lawyers. Such practice is not prohibited considering that under Rule 138, Section 34 of the Rules of
Court, a party may conduct his litigation in a municipal court "in person, with an aid of an agent or
friend appointed by him for the purpose or with aid of an attorney." 16
Eighth, Judge Javellana did not observe the proper procedure in airing his complaints against public
attorneys. Judge Javellana rebuked the public attorneys in the Orders he issued. In one such
Order,17 Judge Javellana misleadingly stated that Public Attorney Uy "has already expressed her desire
not to attend todays hearing," when Public Attorney Uy actually waived her personal appearance at
said hearing as she had to attend the hearing of a criminal case at the MTC of Pontevedra. In another
Order,18 Judge Javellana reported, prior to confirmation, that the PAO lawyer refused to prepare the
motion for extension of time to file counter-affidavit, thus, prompting the accused to hire a special
counsel. Additionally, Judge Javellana improperly filed his complaints against the public attorneys
appearing before his court with the Department of Justice or the District Public Attorney (DPA) of
Bacolod City, instead of the appropriate authorities, namely, the DPA of La Carlota City or the PAO
Regional Director. Moreover, Judge Javellana had required Public Attorney Bascug to explain why she
allowed the accused in Crim. Case No. 03-090, entitled People v. Earnshaw, to sign the Motion for
Extension of Time to File Counter-Affidavits, even when she was the one who prepared said Motion.
Judge Javellana did not verify first whether it was indeed Public Attorney Bascug who prepared the
Motion in question, thus, violating her right to due process. Also, Judge Javellana was already
encroaching upon the domain of the PAO. It is the concern of the PAO and not the court "as to how the
Public Attorneys Office will be managed, specifically, what policies to use in the acceptance of cases
brought to its Office, how one could avail of its legal services, at what point in time one is considered a
client of said Office x x x ."19
Lastly, to support their complaint, Public Attorneys Uy and Bascug attached a hand-written
note20 relating the observations of an anonymous member of Judge Javellanas staff, viz:
Page One
1. Honorable Judge reports to duty at past 11:00 A.M. and hurriedly conducts preliminary
investigations or preliminary examinations after making party litigants wait from 8:00 A.M.
until 11:00 A.M. There had been occasions when litigants became impatient for waiting for
several hours for the Judges arrival and would leave the court. Judge then would forego the
examination.
2. Judge spends more time conversing in cafeterias than stay in the court. Litigants who are
in a hurry to go home would bring the affidavits to the cafeteria for Judges signature.
3. Most of the time, in Court, in front of litigants as audience and even while solemnizing civil
marriage Judge would keep repeating these remarks:
I am a criminal lawyer.
I did not come from the DAR or the COMELEC.
I am an intelligent Judge.
I am the counsel of the famous Gargar-Lumangyao and Spider
Hunter cases and I have caused the execution of Col. Torres.
I am not under the Mayor or the Chief of Police.
and other remarks as if he is the only intelligent, credible and qualified judge in the
whole world.
4. Judge tolerates the negligence of duty of his court utility worker. Said utility worker never
reports to open or close the court; he never cleans the courtroom; most of the time he stays
in his Karaoke bar which is some few meters away from the MTC of La Castellana. As a
matter of fact the MTC of La Castellana is the dirtiest of all the courtrooms in the whole
province.
Page Two
5. Motion for Extension of Time to File Counter Affidavit in CC 03-090-Pp. vs. Efraim
Earnshaw made by Atty. Bascug was denied by Judge on the ground that it was the accused
who signed the Motion and Atty. Bascug was ordered to explain. Other motions had been
denied for not meeting the 3-day rule but others were granted.
6. Motion to Reduce Bail received by court on January 7, 2004 was not set for hearing but
was ordered granted because it was filed by the intimate friend of the judge who is an agent
of Surety. This did not meet the 3-day rule CC 03-108 Pp. vs. Lowell Panaguiton for
"Homicide."
Page Three
1. Criminal Case No. 03-102- Julius Villanueva "Frustrated Homicide" Urgent
Motion to Stay Transfer to Provincial Jail - Filed 1/21/2004 was not heard but order
was issued January 21, 2004 also.
2. Criminal Case No. 03-090- Efraim Earnshaw "Less Serious Physical Injuries"
January 26, 2004 - Scheduled for arraignment but upon order of Judge on affidavit
of Desistance of Melanie Pabon and Motion to Dismiss was filed and case
dismissed.
3. Deonaldo Lopez Case - Motion for Extension of Time to File Counter Affidavit
dated 10-3-02 was signed by accused namely Deonaldo Lopez, Jojo Balansag,
Junnel Jorge, and Bernie Bello - granted by judge.21
Based on the foregoing, Public Attorneys Uy and Bascug prayed that Judge Javellana be removed from
the MTC of La Castellana.
In his Comment22 on the complaint against him, Judge Javellana discounted the allegations of Public
Attorneys Uy and Bascug as "baseless, untruthful, intrigues, malicious and a harassment tending to
intimidate him," and countered as follows:
First, Judge Javellana asserted that he was not grossly ignorant of the rules of procedure and explained
his actions in particular cases: (a) In People v. Cornelio, Judge Javellana issued a warrant of arrest for
the two accused charged with Malicious Mischief in the exercise of his judicial discretion, and the
necessity of holding the accused in detention became evident when it was revealed during trial that the
same accused were wanted for Attempted Homicide in Crim. Case No. 04-096; (b) In People v. Celeste,
et al., Judge Javellana insisted that referral of the dispute (involving an alleged Trespass to Dwelling)
to the Lupong Tagapamayapa was not a jurisdictional requirement and the Motion to Dismiss on said
ground was a prohibited pleading under the Revised Rule on Summary Procedure; (c) Still in People v.
Celeste, et al., Judge Javellana refused to dismiss outright the complaint as prayed for by Public
Attorney Uy as the Judge had to accord due process to the complainant in said case; and (d) In People
v. Lopez, et al. another case for Malicious Mischief, Judge Javellana reiterated that a motion to dismiss
is a prohibited pleading under the Revised Rule on Summary Procedure and added that he could not
dismiss the case outright since the prosecution has not yet fully presented its evidence.
Second, Judge Javellana denied acting as the co-agent of Manunag. Manunag was an Authorized Surety
Bond Agent of Commonwealth Insurance and Surety Bond Company, a bonding company duly
accredited by the Office of the Court Administrator (OCA). The relationship between Judge Javellana
and Manunag was "purely on official business." That Manunag influenced Judge Javellana in fixing the
amount of bail in several cases was a malicious and deliberate lie, based on mere speculation and
suspicion. Judge Javellana had consistently granted the reduction of the amount of bail to only 75%,
and not as low as 25%, of the amount stated in Department Circular No. 89 dated August 29, 2000 of
the Department of Justice (DOJ). Judge Javellana even chided Public Attorneys Uy and Bascug that as
officers of the court, said public attorneys were duty bound not to demand outrageous reduction of bail.
In addition, Judge Javellana could not warn Manunag to stay away from "the processes (sic) premises
in the Court" because "everybody are allowed to attend Court proceedings unless otherwise the
attendance of the public is prohibited."23 Judge Javellana likewise stated that he could not interfere with
the processing of surety insurance and bond for such was a private matter between the insurance and
bonding company and its authorized agents. Referring to case records, Judge Javellana pointed out
that he only granted the motions to reduce bail that complied with the three-day notice rule.
Third, Judge Javellana claimed to have conducted preliminary examination, asking the complainants
and their witnesses searching questions, before issuing warrants of arrest. According to Judge
Javellana, he would sign the official form of the warrant of arrest right after the preliminary
examination. In some cases, Judge Javellana was not aware that the accused had already voluntarily
surrendered or was already taken into custody by virtue of a warrantless arrest because police officers
did not timely inform the court of such fact.
Fourth, Judge Javellana did not violate the constitutional rights of the accused in People v. Bautista.
Judge Javellana argued that while a judge can ask clarificatory questions during the preliminary
investigation, a preliminary investigation is mandatory only when the law imposes the penalty of
imprisonment of at least four years, two months, and one day. Judge Javellana further averred that he
always advised litigants to secure the services of a counsel or that of a public attorney from the PAO.
However, even when the public attorney failed or refused to appear before the court, Judge Javellana
still proceeded with his clarificatory questions since there was yet no full blown trial for which the
accused already needed the services of a competent lawyer.
Fifth, Judge Javellana explained his failure to arrive for the pre-trial in Villanueva v. Regalado
scheduled on April 14, 2005. Judge Javellana averred that he had been suffering from diabetes, as
evinced by his medical records from the Supreme Court Health and Welfare Plan, and on said date, his
blood sugar rose to 300, which caused him to be lethargic, weak, and drowsy.
Sixth, Judge Javellana repudiated the allegation that he applied the law and ruled whimsically and
inconsistently. Judge Javellana asserted that he "applied the law and the rules according to what he
believes is fair, just and equitable in the exercise of his judicial discretion." 24 Judge Javellana never
favored Manunag and in all criminal cases involving homicide, he had granted the reduction of bail to
30,000.00 (75% of the recommended bail of 40,000.00).
Seventh, Judge Javellana admitted not accepting petitions, applications, and motions prepared by the
PAO but signed only by the accused, asseverating that public attorneys should affix their signatures
and state their Roll of Attorneys number in every pleading they file in court. Judge Javellana asked that
"if all courts admits (sic) any pleading filed by any litigant then what will happen to the practice of
law?"25
Eighth, Judge Javellana emphasized that government lawyers, such as Public Attorneys Uy and Bascug,
are paid with peoples money, so they should be sincere and dedicated to their work and, whenever
possible, go the extra mile to serve poor litigants. Thus, Judge Javellana reported Public Attorneys Uy
and Bascug to higher PAO officials to guide said public attorneys and not to interfere with the
performance of their functions.
And ninth, Judge Javellana identified the member of his staff who wrote the note containing more
allegations against him as Mr. Ray D. Pineda (Pineda), Process Server. Judge Javellana described
Pineda as "very abnormal, eccentric and queer in his relationship with his fellow staff as shown by his
quarrelsome attitude and fond of inciting litigants to criticize the Clerk of Court and other personnel
and most of all his loyalty to the Official of the Municipality rather than to this Court x x x." 26 Judge
Javellana clarified that he often mentioned the Gargar-Lumangyao Kidnapping with Double Murder
Case and the Spider Hunters Multiple Murder and Multiple Frustrated Murder Case not to boast but to
relay the impression that he meant business as Presiding Judge. These cases were dubbed as the "Case
of the Century" by then Executive Judge Bernardo Ponferrada of the Regional Trial Court of Bacolod
City (who later became Deputy Court Administrator) because the same involved big time personalities.
Judge Javellana mentioned the said cases even when solemnizing marriages because he would then be
reading the Holy Scriptures and he had to highlight that he survived the trials and threats to his life
because of the Holy Bible. Judge Javellana also did not have a Court Aide who owned a Karaoke Bar
whose negligence the judge was tolerating. Pineda was just "jealous" because he was not designated
by Judge Javellana as Acting Docket Clerk in lieu of Mr. Vee Caballero who was already on terminal
leave prior to retirement. Judge Javellana further narrated that he had reprimanded Pineda several
times, even in open court. In one of these instances, it was because Pineda submitted a falsified
information sheet to the Supreme Court Personnel Division, stating therein that he had never been
charged with a criminal offense, when in truth, he was previously charged with "Physical Injury." Judge
Javellana advised Pineda to rectify the latters records by executing an affidavit to be submitted to the
Supreme Court Personnel Division, but Pineda did not heed the same.
In the end, Judge Javellana stressed that the charges against him were baseless and malicious; and
the acts being complained of involved judicial discretion and, thus, judicial in nature and not the proper
subject of an administrative complaint. Judge Javellana hinted about a conspiracy between the
Municipal Mayor, on one hand, and Public Attorneys Uy and Bascug, on the other. The Municipal Mayor
was purportedly angry at Judge Javellana because the latter caused the arrest of and heard the cases
against the formers supporters and employees; while Public Attorney Bascug was suffering from a
"Losing Litigants Syndrome" and "Prosecution Complex," and was influencing Public Attorney Uy, a
neophyte lawyer.
Consequently, Judge Javellana sought the dismissal of the instant complaint against him.
The Office of the Court Administrator (OCA), in its report 27 dated January 2, 2006, found Judge
Javellana liable for gross ignorance of the law or procedure when he did not apply the Revised Rule on
Summary Procedure in cases appropriately covered by said Rule; and (2) gross misconduct when he
got involved in business relations with Manunag, implemented the law inconsistently, and mentioned
his accomplishments for publicity. The OCA thus recommended that:
1. The instant administrative complaint be REDOCKETED as a regular administrative matter;
and
2. Judge Edwin B. Javellana, MTC, La Castellana, Negros Occidental be SUSPENDED from
office without salary and other benefits for three (3) months with a STERN WARNING that
repetition of the same or similar acts in the future shall be dealt with more severely. 28
In a Resolution29 dated February 5, 2007, the Court re-docketed the complaint as a regular
administrative matter and required parties to manifest their willingness to submit the case for
resolution on the basis of the pleadings filed.
On separate dates,30 the parties manifested their willingness to submit the case for resolution based on
the pleadings already filed.
We agree with the findings and conclusions of the OCA, except for the penalty imposed.
I All other cases of malicious mischief shall be governed by Article 329 of the same Code, which reads:
Gross Ignorance of the Law
The Revised Rule of Summary Procedure shall govern the following criminal cases:
SECTION 1. Scope. This Rule shall govern the summary procedure in the Metropolitan Trial Courts,
the Municipal Trial Courts in Cities, the Municipal Trial Courts, and the Municipal Circuit Trial Courts in
the following cases falling within their jurisdiction.
xxxx
B. Criminal Cases:
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) Violations of Batas Pambansa Bilang 22 (Bouncing Checks Law).
(5) All other criminal cases where the penalty prescribed by law for the offense charged is
imprisonment not exceeding six months, or a fine not exceeding one thousand pesos (
1,000.00), or both, irrespective of other imposable penalties, accessory or otherwise, or of
the civil liability arising therefrom: Provided, however, That in offenses involving damage to
property through criminal negligence, this Rule shall govern where the imposable fine does
not exceed ten thousand pesos ( 10,000.00). (Emphasis supplied.)
The cases People v. Cornelio31 and People v. Lopez, et al.32 pending before Judge Javellana were both
for malicious mischief.
The crime of malicious mischief is committed by any person who deliberately causes damage to the
property of another through means not constituting arson.33 There are special cases of malicious
mischief which are specifically covered by Article 328 of the Revised Penal Code, which provides:
ART. 328. Special cases of malicious mischief. Any person who shall cause damage to obstruct the
performance of public functions, or using any poisonous or corrosive substance; or spreading any
infection or contagion among cattle; or who causes damage to the property of the National Museum or
National Library, or to any archive or registry, waterworks, road, promenade, or any other thing used
in common by the public, shall be punished:
1. By prision correccional in its minimum and medium periods, if the value of the damage
caused exceeds 1,000 pesos;
2. By arresto mayor, if such value does not exceed the above- mentioned amount but is over
200 pesos; and
3. By arresto menor, if such value does not exceed 200 pesos. (Emphasis ours.)
ART. 329. Other mischiefs. The mischiefs not included in the next preceding article shall be punished:
1. By arresto mayor in its medium and maximum periods, if the value of the damage caused
exceeds 1,000 pesos;
2. By arresto mayor in its minimum and medium periods, if such value is over 200 pesos but
does not exceed 1,000 pesos; and
3. By arresto menor or fine of not less than the value of the damage caused and not more
than 200 pesos, if the amount involved does not exceed 200 pesos or cannot be estimated.
(Emphasis ours.)
Without any showing that the accused in People v. Cornelio and People v. Lopez, et al. were charged
with the special cases of malicious mischief particularly described in Article 328 of the Revised Penal
Code, then Article 329 of the same Code should be applied. If the amounts of the alleged damage to
property in People v. Cornelio and People v. Lopez, et al., 6,000.0034 and 3,000.00,35 respectively,
are proven, the appropriate penalty for the accused would be arresto mayor in its medium and
maximum periods which under Article 329(a) of the Revised Penal Code, would be imprisonment for
two (2) months and one (1) day to six (6) months. Clearly, these two cases should be governed by the
Revised Rule on Summary Procedure.
Judge Javellanas issuance of a Warrant of Arrest for the accused in People v. Cornelio is in violation of
Section 16 of the Revised Rule on Summary Procedure, categorically stating that "the court shall not
order the arrest of the accused except for failure to appear whenever required." Judge Javellana never
claimed that the accused failed to appear at any hearing. His justification that the accused was wanted
for the crime of attempted homicide, being tried in another case, Crim. Case No. 04-096, is totally
unacceptable and further indicative of his ignorance of law. People v. Cornelio, pending before Judge
Javellanas court as Crim. Case No. 04-097, is for malicious mischief, and is distinct and separate from
Crim. Case No. 04-096, which is for attempted homicide, although both cases involved the same
accused. Proceedings in one case, such as the issuance of a warrant of arrest, should not be extended
or made applicable to the other.
In People v. Lopez, et al., Judge Javellana conducted a preliminary investigation even when it was not
required or justified.36
The Revised Rule on Summary Procedure does not provide for a preliminary investigation prior to the
filing of a criminal case under said Rule. A criminal case within the scope of the Rule shall be
commenced in the following manner:
SEC. 11. How commenced. The filing of criminal cases falling within the scope of this Rule shall be
either by complaint or by information; Provided, however, That in Metropolitan Manila and in Chartered
Cities, such cases shall be commenced only by information, except when the offense cannot be
prosecuted de oficio.
The complaint or information shall be accompanied by the affidavits of the complainant and of his
witnesses in such number of copies as there are accused plus two (2) copies for the courts files. If this
requirement is not complied with within five (5) days from date of filing, the case may be dismissed.
SEC. 12. Duty of Court.
(a) If commenced by complaint. On the basis of the complaint and the affidavits and other
evidence accompanying the same, the court may dismiss the case outright for being patently
without basis or merit and order the release of the accused if in custody.
(b) If commenced by information. When the case is commenced by information, or is not
dismissed pursuant to the next preceding paragraph, the court shall issue an order which,
together with copies of the affidavits and other evidence submitted by the prosecution, shall
require the accused to submit his counter-affidavit and the affidavits of his witnesses as well
as any evidence in his behalf, serving copies thereof on the complainant or prosecutor not
later than ten (10) days from receipt of said order. The prosecution may file reply affidavits
within ten (10) days after receipt of the counter-affidavits of the defense.
SEC. 13. Arraignment and trial. Should the court, upon a consideration of the complaint or
information and the affidavits submitted by both parties, find no cause or ground to hold the accused
for trial, it shall order the dismissal of the case; otherwise, the court shall set the case for arraignment
and trial.
If the accused is in custody for the crime charged, he shall be immediately arraigned and if he enters a
plea of guilty, he shall forthwith be sentenced.
Section 1, Rule 112 of the Revised Rules of Criminal Procedure only requires that a preliminary
investigation be conducted before the filing of a complaint or information for an offense where the
penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to
the fine. As has been previously established herein, the maximum penalty imposable for malicious
mischief in People v. Lopez, et al. is just six (6) months.
Judge Javellana did not provide any reason as to why he needed to conduct a preliminary investigation
in People v. Lopez, et al. We stress that the Revised Rule on Summary Procedure was precisely
adopted to promote a more expeditious and inexpensive determination of cases, and to enforce the
constitutional rights of litigants to the speedy disposition of cases. 37
Judge Javellana cannot be allowed to arbitrarily conduct proceedings beyond those specifically laid
down by the Revised Rule on Summary Procedure, thereby lengthening or delaying the resolution of
the case, and defeating the express purpose of said Rule.
We further agree with the OCA that Judge Javellana committed a blatant error in denying the Motion to
Dismiss filed by the accused in People v. Celeste, et al. and in insisting that said Motion was a
prohibited pleading, even though the case was never previously referred to the Lupong
Tagapamayapa as required by Sections 18 and 19(a) of the Revised Rule on Summary Procedure.
The pertinent provisions of the Revised Rule on Summary Procedure read:
Sec. 18. Referral to Lupon. Cases requiring referral to the Lupon for conciliation under the provisions
of Presidential Decree No. 1508 where there is no showing of compliance with such requirement, shall
be dismissed without prejudice, and may be revived only after such requirement shall have been
complied with. This provision shall not apply to criminal cases where the accused was arrested without
a warrant.
Sec. 19. Prohibited pleadings and motions. The following pleadings, motions, or petitions shall not be
allowed in the cases covered by this Rule:
(a) Motion to dismiss the complaint or to quash the complaint or information except on the ground of
lack of jurisdiction over the subject matter, or failure to comply with the preceding section. (Emphases
ours.)
We see no ambiguity in the aforequoted provisions. A case which has not been previously referred to
the Lupong Tagapamayapa shall be dismissed without prejudice. A motion to dismiss on the ground of
failure to comply with the Lupon requirement is an exception to the pleadings prohibited by the Revised
Rule on Summary Procedure. Given the express provisions of the Revised Rule on Summary Procedure,
we find irrelevant Judge Javellanas argument that referral to the Lupon is not a jurisdictional
requirement. The following facts are undisputed: People v. Celeste, et al. was not referred to the
Lupon, and the accused filed a Motion to Dismiss based on this ground. Judge Javellana should have
allowed and granted the Motion to Dismiss (albeit without prejudice) filed by the accused in People v.
Celeste, et al.
The Revised Rule on Summary Procedure has been in effect since November 15, 1991. It finds
application in a substantial number of civil and criminal cases pending before Judge Javellanas court.
Judge Javellana cannot claim to be unfamiliar with the same.
Every judge is required to observe the law. When the law is sufficiently basic, a judge owes it to his
office to simply apply it; and anything less than that would be constitutive of gross ignorance of the
law. In short, when the law is so elementary, not to be aware of it constitutes gross ignorance of the
law.38
In Agunday v. Judge Tresvalles,39 we called the attention of Judge Tresvalles to Section 2 of the
Revised Rule on Summary Procedure which states that a "patently erroneous determination to avoid
the application of the Revised Rule on Summary Procedure is a ground for disciplinary action." We went
on further to interpret said provision as follows:
Although the said provision states that "patently erroneous determination to avoid the application of
the Revised Rule on Summary Procedure is a ground for disciplinary action," the provision cannot be
read as applicable only where the failure to apply the rule is deliberate or malicious. Otherwise, the
policy of the law to provide for the expeditious and summary disposition of cases covered by it could
easily be frustrated. Hence, requiring judges to make the determination of the applicability of the rule
on summary procedure upon the filing of the case is the only guaranty that the policy of the law will be
fully realized. x x x.40 (Emphasis ours.)
Resultantly, Judge Javellana cannot invoke good faith or lack of deliberate or malicious intent as a
defense. His repeated failure to apply the Revised Rule on Summary Procedure in cases so obviously
covered by the same is detrimental to the expedient and efficient administration of justice, for which
we hold him administratively liable.
As for Judge Javellanas refusal to dismiss People v. Lopez, et al. and People v. Celeste, et al.,
however, we exonerate him of the administrative charges for the same. Judge Javellana is correct that
the appreciation of evidence is already within his judicial discretion. 41 Any alleged error he might have
committed in this regard is the proper subject of an appeal but not an administrative complaint. We
remind Judge Javellana though to adhere closely to the Revised Rule on Summary Procedure in hearing
and resolving said cases.
 II
Gross Misconduct
Judges are enjoined by the New Code of Judicial Conduct for the Philippine Judiciary 42 to act and
behave, in and out of court, in a manner befitting their office, to wit:
Canon 2
INTEGRITY
Integrity is essential not only to the proper discharge of the judicial office but also to the personal
demeanor of judges.
SECTION 1. Judges shall ensure that not only is their conduct above reproach, but that it is perceived
to be so in the view of a reasonable observer.
SECTION 2. The behavior and conduct of judges must reaffirm the people's faith in the integrity of the
judiciary. Justice must not merely be done but must also be seen to be done.
xxxx
Canon 3
IMPARTIALITY
Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision
itself but also to the process by which the decision is made.
SECTION 1. Judges shall perform their judicial duties without favor, bias or prejudice.
SECTION 2. Judges shall ensure that his or her conduct, both in and out of court, maintains and
enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge
and of the judiciary.
xxxx
Canon 4
PROPRIETY
Propriety and the appearance of propriety are essential to the performance of all the activities of a
judge.
SECTION 1. Judges shall avoid impropriety and the appearance of impropriety in all of their activities.
SECTION 2. As a subject of constant public scrutiny, judges must accept personal restrictions that
might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In
particular, judges shall conduct themselves in a way that is consistent with the dignity of the judicial
office.
xxxx
SECTION 8. Judges shall not use or lend the prestige of the judicial office to advance their private
interests, or those of a member of their family or of anyone else, nor shall they convey or permit
others to convey the impression that anyone is in a special position improperly to influence them in the
performance of judicial duties.
xxxx
SECTION 14. Judges shall not knowingly permit court staff or others subject to their influence, direction
or authority, to ask for, or accept, any gift, bequest, loan favor in relation to anything done or to be
done or omitted to be done in connection with their duties or functions.
xxxx
Canon 5
EQUALITY
Ensuring equality of treatment to all before the courts is essential to the due performance of the
judicial office.
xxxx
SECTION 2. Judges shall not, in the performance of judicial duties, by words or by conduct, manifest
bias or prejudice towards any person or group on irrelevant grounds.
xxxx
SECTION 2. Judges shall not, in the performance of judicial duties, by words or conduct, manifest bias
or prejudice towards any person or group on irrelevant grounds.
SECTION 3. Judges shall carry out judicial duties with appropriate consideration for all persons, such as
the parties, witnesses, lawyers, court staff and judicial colleagues, without differentiation on any
irrelevant ground, immaterial to the proper performance of such duties.
xxxx
Canon 6
COMPETENCE AND DILIGENCE
Competence and diligence are prerequisites to the due performance of judicial office.
xxxx
SECTION 5. Judges shall perform all judicial duties, including the delivery of reserved decisions,
efficiently, fairly and with reasonable promptness.
SECTION 6. Judges shall maintain order and decorum in all proceedings before the court and be
patient, dignified and courteous in relation to litigants, witnesses, lawyers and others with whom the
judge deals in an official capacity. Judges shall require similar conduct of legal representatives, court
staff and others subject to their influence, direction or control.
Judge Javellana had violated the aforequoted canons/standards in several instances.
Judge Javellana did not admit having a business relationship with Manunag, contrary to the finding of
the OCA. What Judge Javellana stated in his Comment was that his relationship with Manunag was
"purely on official business," since Manunag was a duly authorized agent of a credited bonding
company. Nonetheless, Judge Javellana, by referring the accused who appeared before his court
directly to Manunag for processing of the bail bond of said accused, gave the impression that he
favored Manunag and Manunags bonding company, as well as the reasonable suspicion that he
benefitted financially from such referrals. Judge Javellana should remember that he must not only
avoid impropriety, but the "appearance of impropriety" as well.
Moreover, Judge Javellana was conspicuously inconsistent in Granting43 or denying44 motions for
extension of time to file pleadings which were signed only by the accused. Judge Javellana reasoned in
his Comment that the PAO lawyers who prepared the motions should have signed the same as counsels
for the accused, but this only explained Judge Javellanas denial of said motions. It did not address
why, in other cases, Judge Javellana had granted similar motions signed only by the accused. Without
any satisfactory basis for the difference in his ruling on these motions, Judge Javellana had acted
arbitrarily to the prejudice of the PAO lawyers.
Judge Javellana himself admitted that he often mentioned his previous accomplishments as counsel in
big and controversial cases, claiming that he only did so to impress upon the parties that he meant
business and that he relied greatly upon God to survive the trials and threats to his life. We are not
persuaded.
The previous Code of Judicial Conduct specifically warned the judges against seeking publicity for
personal vainglory.45 Vainglory, in its ordinary meaning, refers to an individuals excessive or
ostentatious pride especially in ones own achievements. 46 Even no longer explicitly stated in the New
Code of Judicial Conduct, judges are still proscribed from engaging in self-promotion and indulging their
vanity and pride by Canons 1 (on Integrity) and 2 (on Propriety) of the New Code.
We have previously strongly reminded judges in that:
Canon 2, Rule 2.02 of the Code of Judicial Conduct says in no uncertain terms that "a judge should not
seek publicity for personal vainglory." A parallel proscription, this time for lawyers in general, is found
in Rule 3.01 of the Code of Professional Responsibility: "a lawyer shall not use or permit the use of any
false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim
regarding his qualifications or legal services." This means that lawyers and judges alike, being limited
by the exacting standards of their profession, cannot debase the same by acting as if ordinary
merchants hawking their wares. As succinctly put by a leading authority in legal and judicial ethics, "(i)f
lawyers are prohibited from x x x using or permitting the use of any undignified or self-laudatory
statement regarding their qualifications or legal services (Rule 3.01, Code of Professional
Responsibility), with more reasons should judges be prohibited from seeking publicity for vanity or self-
glorification. Judges are not actors or actresses or politicians, who thrive by publicity. 47
Judge Javellanas actuations as described above run counter to the mandate that judges behave at all
times in such a manner as to promote public confidence in the integrity and impartiality of the
judiciary.48 We cannot stress enough that "judges are the visible representations of law and justice.
They ought to be embodiments of competence, integrity and independence. In particular, municipal
judges are frontline officers in the administration of justice. It is therefore essential that they live up to
the high standards demanded by the Code of Judicial Conduct." 49
For his violations of the New Code of Professional Conduct, Judge Javellana committed gross
misconduct. We have defined gross misconduct as a "transgression of some established and definite
rule of action, more particularly, unlawful behavior or gross negligence by the public officer."50
There is no sufficient evidence to hold Judge Javellana administratively liable for the other charges
against him contained in the complaint. Yet, we call Judge Javellanas attention to several matters
pointed out by the OCA, that if left unchecked, may again result in another administrative complaint
against the judge: (1) notices of hearing issued by Judge Javellanas court must state the specific time,
date, and place51 ; (2) in case Judge Javellana is unable to attend a hearing for any reason, he must
inform his Clerk of Court as soon as possible so that the latter can already cancel the hearing and spare
the parties, counsels, and witnesses from waiting52 ; and (3) he must take care in ascertaining the facts
and according due process to the parties concerned before levying charges of incompetence or
indifference against the PAO lawyers appearing before his court. 53
III
Penalty
Gross ignorance of the law54 and gross misconduct constituting violations of the Code of Judicial
Conduct55 are classified as serious charges under Rule 140, Section 8 of the Revised Rules of Court, and
penalized under Rule 140, Section 11(a) of the same Rules by:
1) Dismissal from the service, forfeiture of all or part of the benefits as the Court may
determine, and disqualification from reinstatement or appointment to any public office,
including government-owned or controlled corporations. Provided, however, that the
forfeiture of benefits shall in no case include accrued leave credits;
2) Suspension from office without salary and other benefits for more than three (3) but not
exceeding six (6) months; or
3) A fine of more than 20,000.00 but not exceeding 40,000.00
The OCA recommended that Judge Javellana be suspended without salary and benefits for three
months.1vvph!1 Given the gravity and number of violations committed by Judge Javellana, we deem
it appropriate to impose suspension without salary and benefits for a period of three months and one
day.
WHEREFORE, Judge Erwin B. Javellana is found GUILTY of gross ignorance of the law and gross
misconduct. He is SUSPENDED from office without salary and other benefits for a period of three (3)
months and one (1) day with a STERN WARNING that the repetition of the same or similar acts in the
future shall be dealt with more severely. Let a copy of this Decision be attached to his records with this
Court.
SO ORDERED.
Topic INQUEST- waiver in Art 125 RPC
SECOND DIVISION
[G.R. Nos. 94511-13. September 18, 1992.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ALEJANDRO C. VALENCIA, Accused-
Appellant.
The Solicitor General for Plaintiff-Appellee.
Perfecto R. Bautista for Accused-Appellant.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY; NO STANDARD BEHAVIOR WHEN ONE IS CONFRONTED
WITH A SHOCKING INCIDENT; CASE AT BAR. Arlyn B. Jimenez testified that as she and her son,
Samuel were about to eat, she saw "Ponga" holding a sumpak a few feet away from her open door.
Seized with fear, she immediately closed the door because whenever she sees a sumpak she feels
afraid. Momentarily thereafter, a shot was fired through her door, hitting her children. With her two
children in serious condition Arlyn rushed them to the Philippine General Hospital, and in her state of
hysteria and shock, Arlyn was in no position to tell the police investigator who shot her children, nor
recall whether a rumble preceded the shooting or not. All that she could tell the police at that point in
time was that the sumpak pellets passed through her shanty door, which she had just closed. Arlyns
testimony should be considered in the light of the fact that there is no standard of behavior when one
is confronted with a shocking incident, especially so when the person whose testimony is elicited is part
of that shocking incident.
2. ID.; ID.; ID.; FINDINGS OF FACT OF THE TRIAL COURT, GENERALLY ENTITLED ON APPEAL.
Settled is the rule that the findings of the trial court on the credibility of the witnesses are accorded
great respect and finality in the appellate court where the same are supported by the evidence on
record.
3. ID.; CRIMINAL PROCEDURE; INFORMATION; CAN BE FILED WITHOUT A PRELIMINARY
INVESTIGATION AGAINST AN ACCUSED ARRESTED WITHOUT WARRANT. A person who is lawfully
arrested without a warrant pursuant to paragraph 1(b), Section 5, Rule 113, Rules of Court should be
delivered to the nearest police station and proceeded against in accordance with Rule 112, Section 7.
Under said Section 7, Rule 112, the prosecuting officer can file the Information in court without a
preliminary investigation, which was done in the accused-appellants case.
4. ID.; ID.; PRELIMINARY INVESTIGATION; DEEMED WAIVED WHEN NOT INVOKED. Since the
records do not show whether the accused-appellant asked for a preliminary investigation after the case
had been filed in court, as in fact, the accused-appellant signified his readiness to be arraigned, the
Court can only conclude that he waived his right to have a preliminary investigation, when he did, in
fact, pleaded "Not Guilty" upon his arraignment.
5. ID.; EVIDENCE; ADMISSIBILITY; CONFESSION ALLEGEDLY OBTAINED BY FORCE, NOT PRESENTED
IN CASE AT BAR. As to the appellants contention in his Brief that he was likewise tortured into
confessing that he fired the "sumpak," a careful review of the records and exhibits does not reveal that
the prosecution presented his confession, if any, during the trial. His conviction was not based on his
alleged confession but on the strength of the testimony of the victims mother.
6. ID.; ID.; WEIGHT AND SUFFICIENCY; CLAIM OF TORTURE, NOT GIVEN WEIGHT IN THE ABSENCE
OF FORMAL COMPLAINT. Accused-appellants claim of police brutality cannot be given weight as he
never formally complained to the police or to the fiscal nor presented any medical certificate to prove
the same.
7. CIVIL LAW; DAMAGES; INDEMNITY FOR DEATH RAISED TO P50,000.00. In Criminal Case No. 89-
72061 the death indemnity is increased to FIFTY THOUSAND (P50,000.00) PESOS in consonance with
existing jurisprudence.
DECISION
NOCON, J.:
"Where there is smoke, there is a fire!" is an old saying which is applicable in the appeal at bar
considering that the accused-appellant was convicted mainly on circumstantial evidence.
Accused-appellant Alejandro Valencia y Canaria appeals the Decision of the Regional Trial Court of
Manila, branch 12, in Criminal Case Nos. 89-72061, and 89-72062 1 convicting him of (1) Homicide
with the use of an unlicensed firearm and (2) Less Serious Physical Injuries, the dispositive portion of
which is as follows:jgc:chanrobles.com.ph
"WHEREFORE, in the light of the foregoing considerations, the Court finds the accused, ALEJANDRO
VALENCIA y CANARIA, guilty beyond reasonable doubt
"1. In Criminal Case No. 89-72061 - of the crime of HOMICIDE (with the use of an unlicensed firearm),
as defined and penalized in Section 1, Presidential Decree No. 1866, as amended, and accordingly,
hereby sentences him to suffer the penalty of reclusion perpetua (life imprisonment) with the accessory
penalties provided for by law; to pay to the heirs of Annabelle Jimenez, herein represented by her
mother, Arlyn Barredo-Jimenez, the amount of FIVE THOUSAND PESOS (P5,000.00) for medical and
hospitalization and funeral expenses; the amount of THIRTY THOUSAND PESOS (P30,000.00) as death
indemnification, and the sum of TEN THOUSAND PESOS (P10,000.00) as moral damages, all without
subsidiary imprisonment in case of insolvency and to pay the costs;
"2. In Criminal Case No. 98-72062 - of the crime of LESS SERIOUS PHYSICAL INJURIES, as defined
and penalized under Article 265, Revised Penal Code, which is a lesser offense to that charged in the
afore-quoted information and, accordingly, hereby sentences him to suffer the penalty of imprisonment
of SIX (6) MONTHS of arresto mayor, with the accessory penalties provided for by law: to pay to the
victim, Samuel B. Jimenez, Jr., represented by his mother, Arlyn Barredo-Jimenez, the amount of ONE
THOUSAND FIVE HUNDRED PESOS (P1,500.00) for his medical and hospitalization expenses, without
subsidiary imprisonment in case of insolvency, and to pay the costs.chanroblesvirtualawlibrary
"In the service of his sentences, the accused shall be credited with the full time during which he
underwent preventive imprisonment, provided he voluntarily agreed in writing to abide by the same
disciplinary rules imposed upon convicted prisoners; otherwise, he shall be entitled to only four-fifths
(4/5) thereof (Article 29, Revised Penal Code, as amended by Republic Act No. 6127).
"SO ORDERED." 2
The Peoples version of the facts of the case as summarized by the Solicitor General is as
follows:jgc:chanrobles.com.ph
"Arlyn Barredo-Jimenez, her two children, Annabelle and Samuel, Jr., aged five and three, respectively,
and her mother, are residents of 2008 F. Muoz St., Paco, Manila. At about 9:00 p.m. of March 19,
1989, as she was about to eat supper, she noticed appellant standing five steps away from the open
door of her house and holding a sumpak, a homemade shotgun. Seized with fear, she closed the door.
After a few moments, she heard a burst of gunfire. This was followed by cries of pain from her children
inside the house. Seeing her children bloodied, she immediately went outside and shouted for help. As
she did so, she saw appellant running away, carrying the sumpak. Two neighbors assisted Jimenez in
bringing the injured children to the Philippine General Hospital (tsn, pp. 2-5, 8, 17, Aug. 7, 1989).
"That same evening, Patrolman Renato Marquez, a homicide investigator, interviewed Jimenez at the
hospital about the shooting incident. Since she was still experiencing shock over the incident Jimenez
forgot to mention the name of appellant as the one who shot her children (tsn, pp. 4, 14, Aug. 21,
1989).
"Acting on the report of a barangay tanod, Patrolmen Roberto Cajiles, Romeo de la Pea and Carlos
Castaeda, assigned at the Ong Detachment, Police Station No. 5, conducted an investigation of the
shooting incident in the house of Jimenez. At the time, Jimenez and her injured children were already
in the hospital. Nevertheless, Pat. Cajiles was able to interview the mother of Jimenez, the barangay
captain, a certain Josie, and appellants brother, Rolando, who all mentioned appellant as the
gunwielder. Moreover, the policemen discovered the presence of six pellet holes and one big hole with
the size of the circumference of a shotgun bullet on the door of the house of Jimenez. Three pellets
were also found at the crime scene (tsn. pp. 3-6; 9, 10, Sept. 4, 1989).chanrobles.com : virtual law
library
"Early next morning, the three policemen were led by Rolando Valencia to the residence of Sonia
Castillo, his aunt, where he believed appellant was sleeping. The police apprehended appellant there
and took him to the Ong Detachment for initial investigation (tsn, pp. 70 11-13, Sept. 4, 1989). He
was indorsed to the police headquarters for further investigation in the evening of March 22, 1989 (tsn.
p. 7, Aug. 21, 1989). At 12:20 a.m. of the following day, one of the injured children, Annabelle, died as
a result of the gunshot wounds she suffered (Exh. H). The other child, Samuel Jr., who was shot in the
right forearm, was discharged from the hospital one week after the incident, but needed two (2) more
weeks for healing (tsn. p. 3, Aug. 21. 1989).
"On March 26, 1989, Arlyn Jimenez executed a sworn statement (Exh. B) wherein she identified
appellant as the culprit. On March 30, 1989, a certain Ramon Bacnotan executed a sworn statement
(Exh. J) and turned over to the police the sumpak (Exh. A) allegedly used by appellant in the shooting
of the two children." 3
Accused-appellants version of the case is that:chanrob1es virtual 1aw library
At about 5:00 p.m. or 6:00 p.m. of March 19, 1989, Accused-appellant and his co-workers together
with his father were in his house drinking several bottles of beer since it was a Sunday and they have
just received their wages.
At about 9:00 p.m., they separated and he proceeded to his aunts house to sleep. Since his uncle died
he used to keep her aunt and her six children company for want of a male companion.
About midnight of March 19, 1989, his Auntie, SONIA CANARIA CASTILLO, woke him up as his brother,
ROLANDO VALENCIA, knocked at their door. As she opened the door, she saw Rolando accompanied by
several policeman who handcuffed the accused and brought him to the ONG DETACHMENT, Paco,
Manila, together with his brother ROLANDO. The relatives of the accused together with his aunt
attempted to visit them but they were allegedly refused admittance to their detention cell.
ROLANDO VALENCIA was released on March 22, 1989 while ALEJANDRO VALENCIA who denied any
participation in the shooting, was turned over to the Investigator of the HOMICIDE SECTION, Pat.
Renato Marquez, at about 11:30 p.m. of the same date. ROLANDO VALENCIA when released had a
swollen face but was allegedly advised not to tell any one about the maltreatment that he and his
brother, Alejandro had received if he wanted to see his brother alive. So he did nothing for fear that
ALEJANDRO VALENCIA might be salvaged. On one occasion, when he was visited by his
parents,Accused-appellant told them of his request to be taken to a doctor for treatment, but the police
refused. 4
On March 30, 1989, two Informations for Homicide and Frustrated Homicide, were filed against the
accused-appellant, to wit:chanrobles.com.ph : virtual law library
"1. Criminal Case No. 89-72061 for the crime of HOMICIDE (with the use of unlicensed firearm),
alleged to have been committed as follows:chanrob1es virtual 1aw library
That on or about March 19, 1989, in the City of Manila, Philippines, the said accused, with the use of
an unlicensed firearm (sumpak), did then and there willfully, unlawfully and feloniously with intent to
kill, attack, assault and use personal violence upon one ANNABELLE JIMENEZ Y BARREDO by then and
there shooting the latter with an unlicensed firearm (sumpak) hitting her at the back and at the right
buttock, thereby inflicting upon said Annabelle Jimenez y Barredo gunshot wounds which were the
direct and immediate cause of her death.
Contrary to law.
and in
2. Criminal Case No. 89-72062 for the crime of FRUSTRATED HOMICIDE, alleged to have been
committed as follows:chanrob1es virtual 1aw library
That on or about March 19, 1989, in the City of Manila, Philippines, the said accused, with the use of
an unlicensed firearm (sumpak), did then and there willfully, unlawfully and feloniously, with intent to
kill, attack, assault and use personal violence upon one SAMUEL JIMENEZ, JR. Y BARREDO, by then and
there shooting the latter with an unlicensed firearm (sumpak) hitting him at the right forearm, thereby
inflicting upon him mortal wound which is necessarily fatal, thus performing all the acts of execution
which should have produced the crime of homicide, as a consequence, but nevertheless, did not
produce it by reason of causes independent of his will, that is, by the timely and able medical
assistance rendered to said Samuel Jimenez, Jr. y Barredo which saved his life.
"Contrary to law." 5
When arraigned, the accused-appellant pleaded "Not Guilty." Trial then proceeded resulting in accused-
appellants conviction as above stated.
On appeal, Accused-appellant raised as errors of the trial court:chanrob1es virtual 1aw library
1. In giving credence to the uncorroborated testimony of Arlyn Barredo Jimenez, mother of the victims,
Annabelle Jimenez and Samuel Jimenez, Jr.;
2. In finding that the prosecution was able to prove the guilt of the defendant-appellant beyond
reasonable doubt in spite of the fact that there was allegedly no preliminary investigation, and that no
sufficient evidence exists proving his guilt; andchanrobles virtual lawlibrary
3. In convicting the defendant-appellant, considering the fact that there exists no evidence that he was
the holder of the unlicensed firearm, and that the prosecution had earlier moved for the dismissal of
the case of illegal possession of firearm, Criminal Case No. 89-72657. 6
I
As to the incredibility of Arlyn B. Jimenez testimony due to her flip-flopping allegations, where in one
instance, for example, she could not tell Pat. Marquez the identity of the suspect when queried at the
Philippine General Hospital where her two children were taken for medical attention right after they
were shot, 7 but at the witness stand she was able to readily identify the accused-appellant as the
suspect claiming that they are neighbors; 8 (2) that while Arlyn B. Jimenez claimed there was no
"rumble" preceding the shooting, 9 Pat. Marquez on the other hand testified that a "rumble" did occur
in the area before the shooting incident 10 which was in fact bannered in the front page of the March
20, 1989 edition of Peoples Journal; 11 and (3) Arlyns claim that the pellets that hit her children were
fired through the door 12 of their shanty, is rebutted by defense Exhibit "2" 13 which is a photograph
of a plywood wall of Arlyn B. Jimenez shanty showing that the pellets were fired through said plywood
wall and not through the door.
The alleged incredibility and flip-flopping testimonies do not exist and could be explained.
In this connection, it is worthwhile mentioning the reason why at first no eyewitnesses volunteered to
testify in this case and for which the court may take judicial notice of. The incident occurred in Anak
Bayan, Paco, Manila, a place notorious for its high incidence of criminality even before World War II.
With the increase in its population of urban poor after the war and the formation of teenage gangs, one
resided in Anak Bayan either out of sheer desperation or because his forefathers lived there and out of
necessity one could not help but lived with them and take his chances with the environment. One
always lived in constant fear of being killed or maimed or forced to take drugs from the pushers that
hang around the place. Ramon Bacnotan, (the person who found the sumpak and gave it to the police)
in his statement to the police, 14 tells Us why this is so:jgc:chanrobles.com.ph
"09 T Bakit mo naman isinurender itong sumpak sa mga pulis?
S Kasi ho ay nabalitaan ko kanina na may mga pulis na nagtatanong at hinahanap daw iyong sumpak
na ginamit sa pagkakabaril ng mga bata dito sa F. Muoz, naalala ko na nuong mangyari ang barilang
iyon ay habang ako ay naglalakad duon sa malapit sa pinangyarihan ay narinig ko ang mga bata na
nag-uusap na duon daw itinapon ni Ponga ang ginamit na sumpak, kaya nuong malaman ko na
hinahanap ng mga pulis ay pinuntahan ko at nakita ko nga na nanduon pa
rin.chanrobles.com:cralaw:red
10 T Bakit hindi mo itinuro kaagad sa pulis ang lugar nuong araw na iyon?
S Una po ay takot ako na masangkot at takot din ako kay Ponga. Ngayon po ay nakakulong na siya
kaya po naglakas na akong tumestigo.
x x x.
14 T Kilala mo ba itong si Ponga?
S Hindi po masyado, pero putok po ang pangalan niya duon sa lugar namin at maraming takot sa
kanya kung lasing siya sa gamot." (Emphasis supplied.)
Arlyn B. Jimenez testified that as she and her son, Samuel were about to eat, she saw "Ponga" holding
a sumpak a few feet away from her open door. 15 Seized with fear, she immediately closed the door
16 because whenever she sees a sumpak she feels afraid. 17 Momentarily thereafter, a shot was fired
through her door, hitting her children. With her two children in serious condition Arlyn rushed them to
the Philippine General Hospital, and in her state of hysteria and shock, Arlyn was in no position to tell
the police investigator who shot her children, 18 nor recall whether a rumble preceded the shooting or
not. All that she could tell the police at that point in time was that the sumpak pellets passed through
her shanty door, which she had just closed. Arlyns testimony should be considered in the light of the
fact that there is no standard of behavior when one is confronted with a shocking incident, 19
especially so when the person whose testimony is elicited is part of that shocking incident.
Contrary to accused-appellants assertions, the photograph presented in evidence indeed shows that
the bullet holes were on the door and not on the wall of the shanty. This was corroborated by Pat.
Cajiles who testified that the shanty door "happen to have gunshot damages." 20
The inconsistencies in the testimonies of the prosecution witnesses cited by accused-appellant have not
been shown to be deliberately made to distort the truth and cannot, therefore, be regarded as
dissolving and destroying the probative value of the witnesses testimonies on the identity of the
suspect, the presence of the rumble and the entry point of the "sumpak" pellets. 21 Settled is the rule
that the findings of the trial court on the credibility of the witnesses are accorded great respect and
finality in the appellate court where the same are supported by the evidence on record. 22
II
The accused-appellant decries the fact that he was denied the right of preliminary investigation. This is
not true.
A person who is lawfully arrested, without a warrant pursuant to paragraph 1(b), Section 5, Rule 113,
Rules of Court 23 should be delivered to the nearest police station and proceeded against in accordance
with Rule 112, Section 7. 24 Under said Section 7, Rule 112, 25 the prosecuting officer can file the
Information in court without a preliminary investigation, which was done in the accused-appellants
case. 26
Since the records do not show whether the accused-appellant asked for a preliminary investigation
after the case had been filed in court, as in fact, the accused-appellant signified his readiness to be
arraigned, 27 the Court can only conclude that he waived his right to have a preliminary investigation,
28 when he did, in fact, pleaded "Not Guilty" upon his arraignment. 29
Ponga was convicted because all the circumstances pointed to no other person but him Ponga as
the sumpak-wielder. We quote with approval the trial courts analysis on the conflux of circumstantial
evidence, as follows:jgc:chanrobles.com.ph
"The evidence of the prosecution reveals that it has no eyewitness to the actual commission of the two
offenses herein charged or that it did not present any. Stated otherwise, its case is anchored on
circumstantial evidence and such is mostly supplied by the victims mother, Arlyn Barredo-Jimenez.
These circumstances are:chanrobles lawlibrary : rednad
(1) While she, her mother and her son, Samuel Jimenez, Jr., were taking supper in their shanty at
around 8:30-9:00 oclock in the evening of March 19, 1989, she saw Ponga, who is accused Alejandro
Valencia, standing a few meters outside holding a homemade shotgun, locally known as sumpak.
Afraid of any untoward incident or of their involvement thereof, she immediately closed the door of
their house.
(2) Not long after she closed the door of their house, there was a gun blast coming from in front of
their hovel, from the direction where she saw Ponga standing. That shot injured her two children,
Annabelle and Samuel, Jr., causing the death of the former four days later and injuring the latters
forearm causing his hospitalization for one week and another 2 weeks for complete recovery.
(3) Upon seeing her two children wounded, she opened the door of their dwelling to ask for help. At
that precise moment, she saw accused Alejandro Valencia running away and carrying the same
homemade shotgun (sumpak).
consistently mentioned and that is accused Alejandro Valencia who is identified by those he
investigated as Ponga.
All these circumstances are found by the Court to be consistent with each other, consistent with the
hypothesis that the accused, Alejandro Valencia, is guilty thereof, and at the same time inconsistent
with any other hypothesis except that of his guilt. They constitute an unbroken chain which leads to a
fair and reasonable conclusion pointing to the defendant, Alejandro Valencia, to the exclusion of all
others, as the author or the two crimes, a chain of natural and rational circumstances corroborating
each other and they certainly can not be overcome by the very inconcrete and doubtful evidence
submitted by him (Erlanger and Galinger, Inc. v. Exconde, L-4792 and L-4795, September 20, 1953)
as will be pointed out later. Then, too, the facts that no less than the accuseds brother, Ramon
Valencia, brought the policeman to their aunts house to arrest the herein accused is another
circumstance to show that, indeed, herein accused is guilty thereof."cralaw virtua1aw library

(4) The several holes (6 of them) of the door (made of plywood) to their house unmistakably show that
III
they were produced by pellets of a shotgun bullet and one bigger hole shows that it was made by a
shotgun bullet because of the size of its circumference. In fact, Pat. Roberto Cajiles recovered 3 pellets
at the door.
The fact that the case of illegal possession of the sumpak, Criminal Case No. 89-72657 was dismissed
upon motion of the prosecution is irrelevant and immaterial as what is material is that Arlyn Jimenez
(5) A homemade shotgun (sumpak) - now Exhibit "A") was retrieved from a canal/ditch very near the
saw Ponga holding the sumpak shotgun before the shooting 30 and saw him again holding the said
hut of Arlyn Barredo-Jimenez by Ramon Bacnotan and surrendered to Pat. Edgardo Paterno on March
weapon while running away after the shooting. 31 Said criminal case was dismissed because the trial
30, 1989. court applied Section 1, P.D. No. 1866 to accused-appellants case. Thus, the trial court correctly ruled
that:jgc:chanrobles.com.ph
(6) That there was a rumble involving 2 rival gangs immediately preceding the shooting incident that
night of March 19, 1989 participated in by accused Alejandro Valencia is admitted by the defense in its
"Finally, the accused did not adduce any evidence of whatever nature to show that he has the
offer of Peoples Tonight issue of March 20, 1989 (Exhibit "1").
authorization or permit to possess the homemade shotgun (Exhibit "A"). As a matter of fact, there is no
need to discuss further this matter because such kind of firearm can not be licensed/registered with the
Are these circumstances sufficient to support the conviction of the accused, affording as it does the Firearms and Explosives Unit, PC, as it is a homemade shotgun. The Court can take judicial notice that
basis for a reasonable inference of the existence of the fact thereby sought to be proved?" chanrobles
said firearm can fire and cause injury even death, to a person.
virtual lawlibrary
Section 1 of Presidential Decree No. 1866, as amended, provides that if homicide or murder is
x x x committed with the use of an unlicensed firearms, the penalty of death shall be imposed. Since death
occurred as a consequence of the use of an unlicensed firearm (homemade shotgun) in Criminal Case
No. 89-72061, the penalty so provided therein should be imposed."cralaw virtua1aw library
"In answer thereto, the Court finds the above-enumerated circumstances to be sufficient to prove the
guilt of the accused beyond reasonable doubt. For there is no showing whatsoever by the defense that
IV
Arlyn Barredo-Jimenez, victims mother, was motivated by ill-will or evil design to testify against the
accused. In the absence, therefore, of any such showing tending to question her motive and integrity,
her testimony should be given full credit in the light of the time-honored pronouncement that the Assuming that maltreatment or torture was employed by the police in the course of their investigation
absence of improper or evil motive for a State witness to make false imputations against the accused
of the case at bar, which of course We condemn, the person allegedly tortured or maltreated was the
strengthens his credibility (People v. Rose, Sr., Et Al., L-80457, September 29, 1988, 166 SCRA 110;
appellants brother, Rolando, not the appellant himself, who, incidentally was released. Rolando
People v. Cabatit, L-62030-31, October 4, 1985, 139 SCRA 94; People v. Beltran, Et Al., L-37168-69.
Valencia, if he was indeed tortured, has remedies under the law for the vindication of his
September 13, 1985, 138 SCRA 521; People v. Sogales, L-31938, February 20, 1984, 127 SCRA 520;
rights.chanrobles virtual lawlibrary
People v. Vengco, Et Al., L-31657 & 32264, January 31, 1984, 127 SCRA 242; People v. Aposago, Et
Al., L-32477, October 30, 1981, 108 SCRA 574, and other numerous cases).
As to the appellants contention in his Brief 32 that he was likewise tortured into confessing that he
fired the "sumpak", a careful review of the records and exhibits does not reveal that the prosecution
Thus, Arlyn Barredo-Jimenez testified that while they were taking their supper that night of March 19,
presented his confession, if any, during the trial. His conviction was not based on his alleged confession
1989, she happened to glance through the open door of their hut and she saw the accused, outside, but on the strength of the testimony of the victims mother. Furthermore, Accused-appellants claim of
standing a few meters away, holding a homemade shotgun (sumpak). Lest she may get embroiled in
police brutality cannot be given weight as he never formally complained to the police or to the fiscal
any untoward incident, she hurriedly went to close the door. She recognized that person standing nor presented any medical certificate to prove the same. 33
outside due to the light in front of their house and the fluorescent lamp at the back of their neighbors
house, thus illuminating the place where the person was standing. Soon after she closed the door,
WHEREFORE, premises considered, the decision of the trial court is AFFIRMED with the MODIFICATION
there was a gun blast and then she heard the moanings and cries of pain of her two children, Annabelle
that in Criminal Case No. 89-72061 the death indemnity is increased to FIFTY THOUSAND (P50,000.00)
and Samuel, Jr. When she looked at them, she saw them bloodied and writhing in pain. Immediately,
PESOS in consonance with existing jurisprudence. Costs against the Accused-Appellant.
she opened the door of their hovel to ask for help. Once she opened the door, she saw the accused,
Alejandro Valencia, running away and carrying with his right hand the homemade shotgun.
SO ORDERED
In addition, the telltale bullet marks of the door proved without doubt that they were produced by a
shotgun bullet and pellets thereof. Pat. Renato Marquez testified that he saw those bullet and pellet
holes at the door when he went to investigate the place after he received a report of the incident from FIRST DIVISION
Pat. Ramon Cajiles of the Ong Detachment. From his investigation, only one suspect has been
 G.R. No. 194159, October 21, 2015
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, Petitioner, v. MA. MERCEDITAS
NAVARRO-GUTIERREZ (AS THEN OMBUDSMAN), DON M. FERRY, JOSE R. TENGCO, JR.,
ROLANDO M. ZOSA, CESAR C. ZALAMEA, OFELIA I. CASTELL, AND RAFAEL A. SISON, PUBLIC
RESPONDENTS, RODOLFO M. CUENCA, MANUEL I. TINIO, AND ANTONIO R. ROQUE,
PRIVATE,Respondents.
DECISION
PERLAS-BERNABE, J.:
Before the Court is a petition for certiorari1 assailing the Resolution2 dated May 30, 2007 and the
Order3 dated April 13, 2009 of the Office of the Ombudsman (Ombudsman) in OMB-C-C-03-0500-I,
which dismissed the affidavit-complaint4 of petitioner Presidential Commission on Good Government
(PCGG) charging individual respondents Don M. Ferry (Ferry), Jose R. Tengco, Jr. (Tengco), Rolando M.
Zosa (Zosa), Cesar C. Zalamea (Zalamea), Ofelia I. Castell (Castell), Rafael A. Sison (Sison), Rodolfo
M. Cuenca (Cuenca), Manuel I. Tinio (Tinio), and Antonio R. Roque (Roque) for allegedly violating
Sections 3 (e) and (g) of Republic Act No. (RA) 3019,5 for lack of probable cause.
The Facts
The instant case arose from an Affidavit-Complaint6 dated July 15, 2003 filed by the PCGG - through
Rene B. Gorospe, the Legal Consultant in-charge of reviewing behest loan cases - against former
officers/directors of the Development Bank of the Philippines (DBP), namely, Ferry, Tengco, Zosa,
Zalamea, Castell, and Sison, as well as former officers/stockholders of National Galleon Shipping
Corporation (Galleon),7 namely, Cuenca, Tinio, and Roque charging them of violating Sections 3 (e)
and (g) of RA 3019. In the Affidavit-Complaint, the PCGG alleged that on October 8, 1992, then
President Fidel V. Ramos (President Ramos) issued Administrative Order No. 13, 8 creating the
Presidential Ad Hoc Fact-Finding Committee on Behest Loans (Ad Hoc Committee) in order to identify
various anomalous behest loans entered into by the Philippine Government in the past. Later on,
President Ramos issued Memorandum Order No. 619 on November 9, 1992, laying down the criteria
which the Ad Hoc Committee may use as a frame of reference in determining whether or not a loan is
behest in nature. Thereafter, the Ad Hoc Committee, with the assistance of a Technical Working Group
(TWG) consisting of officers and employees of different government financial institutions (GFIs),
examined and studied documents relative to loan accounts extended by GFIs to various corporations
during the regime of the late President Ferdinand E. Marcos (President Marcos) -one of which is the
loan account granted by the DBP to Galleon.10
After examining the aforesaid loan account, the TWG found, inter alia, that: (a) on September 19,
1979, DBP, pursuant to its Board Resolution No. 3002,11 approved guarantees in favor of Galleon in the
aggregate amount of US$90,280,000.00 for the purpose of securing foreign currency borrowings from
financial institutions related to Galleon's acquisition of five (5) brand new and two (2) secondhand
vessels;12 (b) Board Resolution No. 3002 specifically stated that such accommodation "shall be
undertaken at the behest of the Philippine Government;"13 (c) as a condition for the grant of the
guarantees, Board Resolution No. 3002 required Galleon to raise its paid up capital to P98.963 Million
by 1981,14 but Galleon was only able to raise its capital to P46,740.755.00;15 (d) despite Galleon's
failure to comply with such condition, DBP still granted the guarantees; (e) as of June 30, 1981,
Galleon's arrearages had already amounted to P40,684,059.37, while the aggregate DBP obligations of
Galleon already totaled P691,058,027.92;16 (f) despite the outstanding debts, DBP still issued Board
Resolution Nos. 400817 and 3001,18 approving further accommodations in Galleon's favor in the form of
one-year foreign currency loans to refinance the latter's arrearages, which amounted to
P58,101,718.89 as of September 30, 1982;19(g) despite Galleon's arrearages amounting to
P128,182,654.38 and obligations accumulating to P904,277,536.96, DBP still approved the release of
Galleon's two (2) secondhand vessels as collaterals resulting in collateral deficiency; 20and (h) as of
March 31, 1984, Galleon's total obligations to DBP amounted to P2,039,284,390.85, while the value of
its collaterals was only P539,000,000.00.21 These findings were then collated in an Executive
Summary22 which was submitted to the Ad Hoc Committee.
Based on the foregoing, the Ad Hoc Committee concluded that the loans/accommodations obtained by
Galleon from DBP possessed positive characteristics of behest loans, considering that: (a) Galleon was
undercapitalized; (b) the loan itself was undercoUateralized; (c) the major stockholders of Galleon
were known to be cronies of President Marcos; and id) certain documents pertaining to the loan
account were found to bear "marginal notes" of President Marcos himself. 23 Resultantly, the PCGG filed
the instant criminal complaint against individual respondents, docketed as OMB-C-C-03-0500-I.
Except for Roque, Zalamea, Tengco, and Castell, the other individual respondents impleaded in the
affidavit-complaint did not file their respective counter-affidavits despite due notice.24
In his defense,25 Roque denied being a Marcos crony, and averred that he was only a minor
shareholder of Galleon and that he was in no position to influence the DBP in extending the subject
loan to Galleon.26 For his part,27 Zalamea maintained that he had no participation or hand in the
subject loan transactions as he joined the DBP as Chairman only in 1982, while the execution of the
transactions pertaining to such loan was done in 1979-1981, and that the criminal charges against
them are barred by prescription since it had been more than 20 years before the complaint against
them was filed on July 15, 2003.28 Similarly, Tengco also argued29 that the criminal charges against
them had already prescribed. He also contended that his participation in the approval of the subject
loan was at the board level only and was done in the exercise of his sound business judgment through
the collective act of the DBP Board of Directors.30 Finally, Castell pleaded31 that her role in the handling
of the projects and transactions of Galleon involved only the supervision of employees, but with no
approving authority for matters like those involving the transactions pertaining to the subject loan
obtained by Galleon from DBP.32
The Ombudsman Ruling
In a Resolution33 dated May 30, 2007, the Ombudsman found no probable cause against private
respondents and, accordingly, dismissed the criminal complaint against them. 34 It found that the pieces
of evidence attached to the case records were not sufficient to establish probable cause against the
individual respondents, considering that the documents presented by the PCGG consisted mostly of
executive summaries and technical reports, which are hearsay, self-serving, and of little probative
value.35 In this relation, the Ombudsman noted that the PCGG failed to present "the documents which
would directly establish the alleged illegal transactions like, the Loan Agreement between DBP and
[Galleon], the approved Board Resolutions by the DBP officers/board of directors, the
participation/voting that transpired at the board meetings wherein the alleged behest loans were
granted."36
Aggrieved, the PCGG moved for reconsideration,37 which was, however, denied in an Order38 dated
April 13, 2009; hence, this petition.39
The Issue Before the Court
The issue raised for the Court's resolution is whether or not the OMB gravely abused its discretion in
finding no probable cause to indict respondents of violating Sections 3 (e) and (g) of RA
3019.chanrobleslaw
The Court's Ruling
The petition is meritorious.
At the outset, it must be stressed that the Court has consistently refrained from interfering with the
discretion of the Ombudsman to determine the existence of probable cause and to decide whether or
not an Information should be filed. Nonetheless, the Court is not precluded from reviewing the
Ombudsman's action when there is a charge of grave abuse of discretion. Grave abuse of discretion
implies a capricious and whimsical exercise of judgment tantamount to lack of jurisdiction.40 The
Ombudsman's exercise of power must have been done in an arbitrary or despotic manner which must
be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform the
duty enjoined or to act at all in contemplation of law.41 The Court's pronouncement inCiron v.
Gutierrez42 is instructive on this matter, to wit:
xxx this Court's consistent policy has been to maintain noninterference in the determination
of the Ombudsman of the existence of probable cause, provided there is no grave abuse in
the exercise of such discretion. This observed policy is based not only on respect for the
investigatory and prosecutory powers granted by the Constitution to the Office of the
Ombudsman but upon practicality as well. Otherwise, the functions of the Court will be seriously
hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by
the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the
courts would be extremely swamped with cases if they could be compelled to review the exercise of
discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an
information in court or dismiss a complaint by a private complainant.43] (Emphasis and underscoring in
the original)
In this regard, it is worthy to note that the conduct of preliminary investigation proceedings - whether
by the Ombudsman or by a public prosecutor - is geared only to determine whether or not probable
cause exists to hold an accused-respondent for trial for the supposed crime that he committed.
InFenequito v. Vergara, Jr.,44 the Court defined probable cause and the parameters in finding the
existence thereof in the following manner, to wit:
Probable cause, for the purpose of filing a criminal information, has been defined assuch facts as are
sufficient to engender a well-founded belief that a crime has been committed and that
respondent is probably guilty thereof. The term does not mean "actual or positive cause" nor does
it import absolute certainty. It is merely based on opinion and reasonable belief. Probable cause does
not require an inquiry whether there is sufficient evidence to procure a conviction. It is
enough that it is believed that the act or omission complained of constitutes the offense
charged.
A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime
has been committed by the suspects. It need not be based on clear and convincing evidence of
guilt, not on evidence establishing guilt beyond reasonable doubt, and definitely not on
evidence establishing absolute certainty of guilt. In determining probable cause, the average man
weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which
he has no technical knowledge. He relies on common sense. What is determined is whether there
is sufficient ground to engender a well-founded belief that a crime has been committed, and
that the accused is probably guilty thereof and should be held for trial. It does not require an
inquiry as to whether there is sufficient evidence to secure a conviction.45 (Emphases and
underscoring supplied)
Verily, preliminary investigation is merely an inquisitorial mode of discovering whether or not there is
reasonable basis to believe that a crime has been committed and that the person charged should be
held responsible for it. Being merely based on opinion and belief, a finding of probable cause does not
require an inquiry as to whether there is sufficient evidence to secure a conviction. 46 "[A preliminary
investigation] is not the occasion for the full and exhaustive display of [the prosecution's] evidence.
The presence and absence of the elements of the crime is evidentiary in nature and is a matter of
defense that may be passed upon after a full-blown trial on the merits."47 Hence, "the validity and
merits of a party's defense or accusation, as well as the admissibility of testimonies and evidence, are
better ventilated during trial proper than at the preliminary investigation level." 48
Guided by the foregoing considerations, the Court finds that the Ombudsman gravely abused its
discretion in dismissing the criminal complaint against individual respondents for lack of probable
cause, as will be explained hereunder.
As already stated, individual respondents were accused of violating Section 3 (e) of RA 3019, the
elements of which are as follows: (a) that the accused must be a public officer discharging
administrative, judicial, or official functions (or a private individual acting in conspiracy with such public
officers); (b) that he acted with manifest partiality, evident bad faith, or inexcusable negligence; and
(c) that his action caused any undue injury to any party, including the government, or giving any
private party unwarranted benefits, advantage, or preference in the discharge of his functions. 49 In the
same vein, they were likewise charged with violation of Section 3 (g) of the same law, which has the
following elements: (a) that the accused is a public officer; (b) that he entered into a contract or
transaction on behalf of the government; and (c) that such contract or transaction is grossly and
manifestly disadvantageous to the government.50 Notably, private individuals may also be charged with
violation of Section 3 (g) of RA 3019 if they conspired with public officers. 51
A review of the records of the case reveals that Galleon made a request for guarantees from DBP to
cover its foreign borrowings for the purpose of acquiring new and secondhand vessels. In an evaluation
memorandum52 dated August 27, 1979, the DBP itself already raised various red flags regarding
Galleon's request, such as the following: (a) its guarantee accommodation request covers 100% of its
project cost, which is in excess of DBP's normal practice of financing only 80% of such cost; (b) its net
profit margin was experiencing a steady decrease due to high operating costs; (c) its paid-up capital is
only P9.95 Million; and (d) aside from its proposal to source the increase in equity from the expected
profits from the operations of the vessels to be acquired, Galleon has not shown any concrete proof on
how it will be funding its equity build-up.53 Despite the foregoing, DBP still agreed to grant Galleon's
request under certain conditions (e.g., increase in paid-up capital, placement of adequate collaterals),
which were eventually not complied with. Further, when Galleon's arrearages and obligations
skyrocketed due to its failure to service its debts, DBP, instead of securing its interest by demanding
immediate payment or the foreclosure of the collaterals, granted Galleon further accommodations in
the form of foreign currency loans and release of certain collaterals. As a result of the foregoing,
among other things, Galleon's total obligations to DBP ballooned all the way to P2,039,284,390.85,
while the collaterals securing such obligations were only valued at P539,000,000.00 as of March 31,
1984.54 Further, Galleon's paid-up capital remained only at P46,740,755.00 as of June 30, 1981.55
In light of the foregoing considerations, the Ad Hoc Committee concluded that the accommodations
extended by DBP to Galleon were in the nature of behest loans, which then led to the filing of criminal
cases against individual respondents, who were high-ranking officers and/or directors of either Galleon
or DBP, as evidenced by the various documents on record. Specifically, Cuenca, Tinio, and Roque were
Galleon stockholders and were its President, Executive Vice-President and Treasurer, and Corporate
Secretary, respectively.56 On the other hand, the following individual respondents exercised official
functions for the DBP during the time it extended Galleon the aforesaid accommodations: (a) Ferry as
DBP Vice Chairman and Acting Chairman;57 (b) Tengco as DBP Board Member, Supervising Governor,
and Acting Chairman;58 (c) Zosa as DBP Supervising Governor and Chairman of the Loan
Committee;59 (d) Zalamea as DBP Chairman;60 (e) Castell as DBP Executive Officer and Manager of the
Industrial Projects Development III;61 and if) Sison as DBP Board Member and Acting Chairman.62 As
may be gleaned from the documents on record, it appears that each of these high-ranking officers
and/or directors of DBP had a hand in recommending the approval and/or the actual approval of the
series of accommodations that DBP granted in favor of Galleon, which constituted the behest loans
received by the latter during the regime of the late President Marcos.
In view of the accusations that they were involved in the grant of behest loans, Roque, Zalamea,
Tengco, and Castell merely denied liability by maintaining that they had no participation in such grant.
Suffice it to say that these are matters of defense that are better ventilated during the trial proper. On
the other hand, Ferry, Zosa, Cuenca, Tinio, and Sison miserably failed to debunk the charges against
them by not filing their respective counter-affidavits despite due notice. Indubitably, the foregoing
establishes probable cause to believe that individual respondents may have indeed committed acts
constituting the crimes charged against them, and as such they must defend themselves in a full-blown
trial on the merits.
Finally, it was error for the Ombudsman to simply discredit the TWG's findings contained in the
Executive Summary which were adopted by the Ad Hoc Committee for being hearsay, self-serving, and
of little probative value. It is noteworthy to point out that owing to the initiatory nature of preliminary
investigations, the technical rules of evidence should not be applied in the course of its
proceedings.63 In the recent case of Estrada v. Ombudsman,64 the Court declared that hearsay
evidence is admissible in determining probable cause in preliminary investigations because such
investigation is merely preliminary, and does not finally adjudicate rights and obligations of parties.
Citing a case decided by the Supreme Court of the United States, it was held that probable cause can
be established with hearsay evidence, as long as there is substantial basis for crediting the
hearsay,viz.:
Justice Brion's pronouncement in Unilever that "the determination of probable cause does not depend
on the validity or merits of a party's accusation or defense or on the admissibility or veracity of
testimonies presented" correctly recognizes the doctrine in the United States that the determination
of probable cause can rest partially, or even entirely, on hearsay evidence, as long as the
person making the hearsay statement is credible. In United States v. Ventresca, the United
States Supreme Court held:chanRoblesvirtualLawlibrary
While a warrant may issue only upon a finding of "probable cause," this Court has long held that "the
term 'probable cause' . . . means less than evidence which would justify condemnation," x x x and that
a finding of "probable cause" may rest upon evidence which is not legally competent in a criminal trial,
x x x As the Court stated in Brinegar v. United States x x x, "There is a large difference between two
things to be proved (guilt and probable cause), as well as between the tribunals which determine them,
and therefore a like difference in the quanta and modes of proof required to establish them." Thus,
hearsay may be the bases for issuance of the warrant "so long as there ... [is] a substantial
basis for crediting the hearsay." x x x And, in Aguilar, we recognized that "an affidavit may be
based on hearsay information and need not reflect the direct personal observations of the
affiant," so long as the magistrate is "informed of some of the underlying circumstances"
supporting the affiant's conclusions and his belief that any informant involved "whose
identity need not be disclosed..." was "credible" or his information "reliable." x x x.
Thus, probable cause can be established with hearsay evidence, as long as there is
substantial basis for crediting the hearsay. Hearsay evidence is admissible in determining
probable cause in a preliminary investigation because such investigation is merely
preliminary, and does not finally adjudicate rights and obligations of parties, x x
x.65 (Emphases and underscoring supplied)
In this case, assuming arguendo that the factual findings contained in the Executive Summary
prepared by the TWG from which the Ad Hoc Committee based its conclusions are indeed hearsay, self-
serving, and of little probative value, there is nevertheless substantial basis to credit the same, as such
factual findings appear to be based on official documents prepared by DBP itself in connection with the
behest loans it allegedly extended in favor of Galleon. In this regard, it must be emphasized that in
determining the elements of the crime charged for purposes of arriving at a finding of probable cause,
only facts sufficient to support a prima facie case against the respondents are required, not absolute
certainty. Probable cause implies mere probability of guilt, i.e., a finding based on more than bare
suspicion, but less than evidence that would justify a conviction. 66 To reiterate, the validity of the
merits of a party's defense or accusations and the admissibility of testimonies and evidences are better
ventilated during the trial stage than in the preliminary stage. 67
In sum, the Court is convinced that there is probable cause to indict individual respondents of violating
Sections 3 (e) and (g) of RA 3019. Hence, the Ombudsman committed grave abuse of discretion
amounting to lack or excess of jurisdiction in dismissing the criminal complaint against them.
WHEREFORE, the petition is GRANTED. The Resolution dated May 30, 2007 and the Order dated April
13, 2009 of the Office of the Ombudsman in OMB-C-C-03-0500-I are hereby REVERSED andSET
ASIDE. Accordingly, the Office of the Ombudsman is DIRECTED to issue the proper resolution
indicting individual respondents Don M. Ferry, Jose R. Tengco, Jr., Rolando ML Zosa, Cesar C. Zalamea,
Ofelia I. Castell, Rafael A. Sison, Rodolfo M. Cuenca, Manuel I. Tinio, and Antonio R. Roque of violating
Sections 3 (e) and (g) of Republic Act No. 3019, in accordance with this Decision.
SO ORDERED.chanroblesvirtuallawlibrary
SECOND DIVISION
January 11, 2016
G.R. No. 209330
SECRETARY LEILA DE LIMA, ASSISTANT STATE PROSECUTOR STEWART ALLAN A. MARIANO,
ASSISTANT STATE PROSECUTOR VIMAR M. BARCELLANO and ASSISTANT STATE
PROSECUTOR GERARD E. GAERLAN, Petitioners,
vs.
MARIO JOEL T. REYES, Respondent.
DECISION
LEONEN, J.:
The Secretary of Justice has the discretion, upon motion or motu proprio, to act on any matter that
may cause a probable miscarriage of justice in the conduct of a preliminary investigation. This action
may include, but is not limited to, the conduct of a reinvestigation. Furthermore, a petition for certiorari
under Rule 65 questioning the regularity of preliminary investigation becomes moot after the trial court
completes its determination of probable cause and issues a warrant of arrest.
This Petition for Review on Certiorari assails the Decision 1 dated March 19, 2013 and Resolution2 dated
September 27, 2013 of the Court of Appeals, which rendered null and void Department of Justice Order
No. 7103issued by the Secretary of Justice.4 The Department Order created a second panel of
prosecutors to conduct a reinvestigation of a murder case in view of the first panel of prosecutors'
failure to admit the complainant's additional evidence.
Dr. Gerardo Ortega (Dr. Ortega), also known as "Doc Gerry," was a veterinarian and anchor of several
radio shows in Palawan. On January 24, 2011, at around 10:30 am, he was shot dead inside the Baguio
Wagwagan Ukay-ukay in San Pedro, Puerto Princesa City, Palawan.5 After a brief chase with police
officers, Marlon B. Recamata was arrested. On the same day, he made an extrajudicial confession
admitting that he shot Dr. Ortega. He also implicated Rodolfo "Bumar" O. Edrad (Edrad), Dennis C.
Aranas, and Armando "Salbakotah" R. Noel, Jr.6
On February 6, 2011, Edrad executed a Sinumpaang Salaysay before the Counter-Terrorism Division of
the National Bureau of Investigation where he alleged that it was former Palawan Governor Mario Joel
T. Reyes (former Governor Reyes) who ordered the killing of Dr. Ortega. 7
On February 7, 2011, Secretary of Justice Leila De Lima issued Department Order No: 0918 creating a
special panel of prosecutors (First Panel) to conduct preliminary investigation. The First Panel was
composed of Senior Assistant Prosecutor Edwin S. Dayog, Assistant State Prosecutor Bryan Jacinto S.
Cacha, and Assistant State Prosecutor John Benedict D. Medina. 9
On February 14, 2011, Dr. Patria Gloria Inocencio-Ortega (Dr. Inocencio-Ortega), Dr. Ortega's wife,
filed a Supplemental Affidavit-Complaint implicating former Governor Reyes as the mastermind of her
husband's murder. Former Governor Reyes' brother, Coron Mayor Mario T. Reyes, Jr., former
Marinduque Governor Jose T. Carreon, former Provincial Administrator Atty. Romeo Seratubias, Marlon
Recamata, Dennis Aranas, Valentin Lesias, Arturo D. Regalado; Armando Noel, Rodolfo O. Edrad, and
several John and Jane Does were also implicated.10
On June 8, 2011, the First Panel concluded its preliminary investigation and issued the
Resolution11 dismissing the Affidavit-Complaint.
On June 28, 2011, Dr. Inocencio-Ortega filed a Motion to Re-Open Preliminary Investigation, which,
among others, sought the admission of mobile phone communications between former Governor Reyes
and Edrad.12 On July 7, 2011, while the Motion to Re-Open was still pending, Dr. Inocencio-Ortega filed
a Motion for Partial Reconsideration Ad Cautelam of the Resolution dated June 8, 2011. Both Motions
were denied by the First Panel in the Resolution 13 dated September 2, 2011.14
On September 7, 2011, the Secretary of Justice issued Department Order No. 710 creating a new panel
of investigators (Second Panel) to conduct a reinvestigation of the case. The Second Panel was
composed of Assistant State Prosecutor Stewart Allan M. Mariano, Assistant State Prosecutor Vimar M.
Barcellano, and Assistant State Prosecutor Gerard E. Gaerlan.
Department Order No. 710 ordered the reinvestigation of the case "in the interest of service and due
process"15 to address the offer of additional evidence denied by the First Panel in its Resolution dated
September 2, 2011. The Department Order also revoked Department Order No. 091. 16
Pursuant to Department Order No. 710, the Second Panel issued a Subpoena requiring former
Governor Reyes to appear before them on October 6 and 13, 2011 and to submit his counter-affidavit
and supporting evidence.17
On September 29, 2011, Dr. Inocencio-Ortega filed before the Secretary of Justice a Petition for Review
(Ad Cautelam) assailing the First Panel's Resolution dated September 2, 2011. 18
On October 3, 2011, former Governor Reyes filed before the Court of Appeals a Petition for Certiorari
and Prohibition with Prayer for a Writ of Preliminary Injunction and/or Temporary Restraining Order
assailing the creation of the Second Panel. In his Petition, he argued that the Secretary of Justice
gravely abused her discretion when she constituted a new panel. He also argued that the parties were
already afforded due process and that the evidence to be addressed by the reinvestigation was neither
new nor material to the case.19
On March 12, 2012, the Second Panel issued the Resolution finding probable cause and recommending
the filing of informations on all accused, including former Governor Reyes. 20 Branch 52 of the Regional
Trial Court of Palawan subsequently issued warrants of arrest on March 27, 2012.21 However, the
warrants against former Governor Reyes and his brother were ineffective since the two allegedly left
the country days before the warrants could be served.22
On March 29, 2012, former Governor Reyes filed before the Secretary of Justice a Petition for Review
Ad Cautelam23 assailing the Second Panel's Resolution dated March 12, 2012.
On April 2, 2012, he also filed before the Court of Appeals a Supplemental Petition for Certiorari and
Prohibition with Prayer for Writ of Preliminary Injunction and/or Temporary Restraining Order
impleading Branch 52 of the Regional Trial Court of Palawan. 24
In his Supplemental Petition, former Governor Reyes argued that the Regional Trial Court could not
enforce the Second Panel's Resolution dated March 12, 2012 and proceed with the prosecution of his
case since this Resolution was void.25
On March 19, 2013, the Court of Appeals, in a Special Division of Five, rendered the
Decision26 declaring Department Order No. 710 null and void and reinstating the First Panel's
Resolutions dated June 8, 2011 and September 2, 2011.
According to the Court of Appeals, the Secretary of Justice committed grave abuse of discretion when
she issued Department Order No. 710 and created the Second Panel. The Court of Appeals found that
she should have modified or reversed the Resolutions of the First Panel pursuant to the 2000 NPS Rule
on Appeal27 instead of issuing Department' Order No. 710 and creating the Second Panel. It found that
because of her failure to follow the procedure in the 2000 NPS Rule on Appeal, two Petitions for Review
Ad Cautelam filed by the opposing parties were pending before her.28
The Court of Appeals also found that the Secretary of Justice's admission that the issuance of
Department Order No. 710 did not set aside the First Panel's Resolution dated June 8, 2011 and
September 2, 2011 "[compounded] the already anomalous situation." 29 It also stated that Department
Order No. 710 did not give the Second Panel the power to reverse, affirm, or modify the Resolutions of
the First Panel; therefore, the Second Panel did not have the authority to assess the admissibility and
weight of any existing or additional evidence.30
The Secretary of Justice, the Second Panel, and Dr. Inocencio-Ortega filed a Motion for Reconsideration
of the Decision dated March 19, 2013. The Motion, however, was denied by the Court of Appeals in the
Resolution31dated September 27, 2013.
In its Resolution, the Court of Appeals stated that the Secretary of Justice had not shown the alleged
miscarriage of justice sought to be prevented by the creation of the Second Panel since both parties
were given full opportunity to present their evidence before the First Panel. It also ruled that the
evidence examined by the Second Panel was not additional evidence but "forgotten evidence" 32 that
was already available before the First Panel during the conduct of the preliminary investigation.33
Aggrieved, the Secretary of Justice and the Second Panel filed the present Petition for Review on
Certiorari34assailing the Decision dated March 19, 2013 and Resolution dated September 27, 2013 of
the Court of Appeals. Respondent Mario Joel T. Reyes filed his Comment 35 to the Petition in compliance
with this court's Resolution dated February 17, 2014. 36 Petitioners' Reply37 to the Comment was filed
on October 14, 2014 in compliance with this court's Resolution dated June 23, 2014. 38
Petitioners argue that the Secretary of Justice acted within her authority when she issued Department
Order No. 710. They argue that her issuance was a purely executive function and not a quasi-judicial
function that could be the subject of a petition for certiorari or prohibition. 39 In their submissions, they
point out that under Republic Act No. 10071 and the 2000 NPS Rule on Appeal, the Secretary of Justice
has the power to create a new panel of prosecutors to reinvestigate a case to prevent a miscarriage of
justice.40
Petitioners' position was that the First Panel "appear[ed] to have ignored the rules of preliminary
investigation"41when it refused to receive additional evidence that would have been crucial for the
determination of the existence of probable cause.42 They assert that respondent was not deprived of
due process when the reinvestigation was ordered since he was not prevented from presenting
controverting evidence to Dr. Inocencio-Ortega's additional evidence. 43 Petitioners argue that since the
Information had been filed, the disposition of the case was already within the discretion of the trial
court.44
Respondent, on the other hand, argues that the Secretary of Justice had no authority to order motu
proprio the reinvestigation of the case since Dr. Inocencio-Ortega was able to submit her alleged new
evidence to the First Panel when she filed her Motion for Partial Reconsideration. He argues that all
parties had already been given the opportunity to present their evidence before the First Panel so it
was not necessary to conduct a reinvestigation.45
Respondent argues that the Secretary of Justice's discretion to create a new panel of prosecutors was
not "unbridled"46 since the 2000 NPS Rule on Appeal requires that there be compelling circumstances
for her to be able to designate another prosecutor to conduct the reinvestigation. 47 He argues that the
Second Panel's Resolution dated March 12, 2012 was void since the Panel was created by a department
order that was beyond the Secretary of Justice's authority to issue. He further argues that the trial
court did not acquire jurisdiction over the case since the Information filed by the Second Panel was
void.48
The issues for this court's resolution are:
First, whether the Court of Appeals erred in ruling that the Secretary of Justice committed grave abuse
of discretion when she issued Department Order No. 710, and with regard to this:
a. Whether the issuance of Department Order No. 710 was an executive function beyond the
scope of a petition for certiorari or prohibition; and
b. Whether the Secretary of Justice is authorized to create motu proprio another panel of
prosecutors in order to conduct a reinvestigation of the case.
Lastly, whether this Petition for Certiorari has already been rendered moot by the filing of the
information in court, pursuant to Crespo v. Mogul.49
I
The determination by the Department of Justice of the existence of probable cause is not a quasi-
judicial proceeding. However, the actions of the Secretary of Justice in affirming or reversing the
findings of prosecutors may still be subject to judicial review if it is tainted with grave abuse of
discretion.
Under the Rules of Court, a writ of certiorari is directed against "any tribunal, board or officer
exercising judicial or quasi-judicial functions."50 A quasi-judicial function is "the action, discretion, etc.,
of public administrative officers or bodies, who are required to investigate facts, or ascertain the
existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action
and to exercise discretion of a judicial nature." 51Otherwise stated, an administrative agency performs
quasi-judicial functions if it renders awards, determines the rights of opposing parties, or if their
decisions have the same effect as the judgment of a court. 52
In a preliminary investigation, the prosecutor does not determine the guilt or innocence of an accused.
The prosecutor only determines "whether there is sufficient ground to engender a well-founded belief
that a crime has been committed and the respondent is probably guilty thereof, and should be held for
trial."53 As such, the prosecutor does not perform quasi-judicial functions. In Santos v. Go:54
[T]he prosecutor in a preliminary investigation does not determine the guilt or innocence of the
accused. He does not exercise adjudication nor rule-making functions. Preliminary investigation is
merely inquisitorial, and is often the only means of discovering the persons who may be reasonably
charged with a crime and to enable the fiscal to prepare his complaint or information. It is not a trial of
the case on the merits and has no purpose except that of determining whether a crime has been
committed and whether there is probable cause to believe that the accused is guilty thereof. While the
fiscal makes that determination, he cannot be said to be acting as a quasi-court, for it is the courts,
ultimately, that pass judgment on the accused, not the fiscal.
Though some cases describe the public prosecutors power to conduct a preliminary investigation as
quasi-judicial in nature, this is true only to the extent that, like quasi-judicial bodies, the prosecutor is
an officer of the executive department exercising powers akin to those of a court, and the similarity
ends at this point. A quasi-judicial body is as an organ of government other than a court and other
than a legislature which affects the rights of private parties through either adjudication or rule-making.
A quasi-judicial agency performs adjudicatory functions such that its awards, determine the rights of
parties, and their decisions have the same effect as judgments of a court. Such is not the case when a
public prosecutor conducts a preliminary investigation to determine probable cause to file an
information against a person charged with a criminal offense, or when the Secretary of Justice is
reviewing the formers order or resolutions.55
In Spouses Dacudao v. Secretary of Justice,56 a petition for certiorari, prohibition, and. mandamus was
filed.against the Secretary of Justice's issuance of a department order. The assailed order directed all
prosecutors to forward all cases already filed against Celso de los Angeles of the Legacy Group to the
Secretariat of the Special Panel created by the Department of Justice.
This court dismissed the petition on the ground that petitions for certiorari and prohibition are directed
on]y to tribunals that exercise judicial or quasi-judicial functions. The issuance of the department order
was a purely administrative or executive function of the Secretary of Justice. While the Department of
Justice may perform functions similar to that of a court of law, it is not a quasi-judicial agency:
The fact that the DOJ is the primary prosecution arm of the Government does not make it a quasi-
judicial office or agency. Its preliminary investigation of cases is not a quasi-judicial proceeding. Nor
does the DOJ exercise a quasi-judicial function when it reviews the findings of a public prosecutor on
the finding of probable cause in any case. Indeed, in Bautista v. Court of Appeals, the Supreme Court
has held that a preliminary investigation is not a quasi-judicial proceeding, stating:
... [t]he prosecutor in a preliminary investigation does not determine the guilt or innocence of the
accused. He does not exercise adjudication nor rule-making functions. Preliminary investigation is
merely inquisitorial, and is often the only means of discovering the persons who may be reasonably
charged with a crime and to enable the fiscal to prepare his complaint or information. It is not a trial of
the case on the merits and has no purpose except that of determining whether a crime has been
committed and whether there is probable cause to believe that the accused is guilty thereof. While the
fiscal makes that determination, he cannot be said to be acting as a quasi-court, for it is the courts,
ultimately, that pass judgment on the accused, not the fiscal.
There may be some decisions of the Court that have characterized the public prosecutor's power to
conduct a preliminary investigation as quasi-judicial in nature. Still, this characterization is true only to
the extent that the public prosecutor, like a quasi-judicial body, is an officer of the executive
department exercising powers akin to those of a court of law.
But the limited similarity. between the public prosecutor and a quasi-judicial body quickly ends there.
For sure, a quasi-judicial body is an organ of government other than a court of law or a legislative
office that affects the rights of private parties through either adjudication or rulemaking; it performs
adjudicatory functions, and its awards and adjudications determine the rights of the parties coming
before it; its decisions have the same effect as the judgments of a court of law. In contrast, that is not
the effect whenever a public prosecutor conducts a preliminary investigation to determine. probable
cause in order to file a criminal information against a person properly charged with the offense, or
whenever the Secretary of Justice reviews the public prosecutor's orders or resolutions. 57 (Emphasis
supplied)
Similarly, in Callo-Claridad v. Esteban,58 we have stated that a petition for review under Rule 43 of the
Rules of Court cannot be brought to assail the Secretary of Justice's resolution dismissing a complaint
for lack of probable cause since this is an "essentially executive function":59
A petition for review under Rule 43 is a mode of appeal to be taken only to review the decisions,
resolutions or awards by the quasi-judicial officers, agencies or bodies, particularly those specified in
Section 1 of Rule 43. In the matter before us, however, the Secretary of Justice was not an officer
performing a quasi-judicial function. In reviewing the findings of the OCP of Quezon City on the matter
of probable cause, the Secretary of Justice performed an essentially executive function to determine
whether the crime alleged against the respondents was committed, and whether there was 'probable
cause to believe that the respondents _were guilty thereof. 60
A writ of prohibition, on the other hand, is directed against "the proceedings of any tribunal,
corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial
functions."61 The Department of Justice is not a court of law and its officers do not perform quasi-
judicial functions. The Secretary of Justice's review of the resolutions of prosecutors is also not a
ministerial function.
An act is considered ministerial if "an officer or tribunal performs in the context of a given set of facts,
in a prescribed manner and without regard for the exercise of his or its own judgment, upon the
propriety or impropriety of the act done."62 In contrast, an act is considered discretionary "[i]f the law
imposes a duty upon a public officer, and gives him the right to decide how or when the duty shall be
performed."63 Considering that "full discretionary authority has been delegated to the executive branch
in the determination of probable cause during a preliminary investigation," 64 the functions of the
prosecutors and the Secretary of Justice are not ministerial.
However, even when an administrative agency does not perform a judicial, quasi-judicial, or ministerial
function, the Constitution mandates the exercise of judicial review when there is an allegation of grave
abuse of discretion.65 In Auto Prominence Corporation v. Winterkorn:66
In ascertaining whether the Secretary of Justice committed grave abuse of discretion amounting to lack
or excess of jurisdiction in his determination of the existence of probable cause, the party seeking the
writ of certiorari must be able to establish that the Secretary of Justice exercised his executive power in
an arbitrary and despotic manner, by reason of passion or personal hostility, and the abuse of
discretion must be so patent and gross as would amount to an evasion or to a unilateral refusal to
perform the duty enjoined or to act in contemplation of law. Grave abuse of discretion is not enough; it
must amount to lack or excess of jurisdiction. Excess of jurisdiction signifies that he had jurisdiction
over the case, but (he) transcended the same or acted without authority.67
Therefore, any question on whether the Secretary of Justice committed grave abuse of discretion
amounting to lack or excess of jurisdiction in affirming, reversing, or modifying the resolutions of
prosecutors may be the subject of a petition for certiorari under Rule 65 of the Rules of Court.
II
Under existing laws, rules of procedure, and jurisprudence, the Secretary of Justice is authorized to
issue Department Order No. 710.
Section 4 of Republic Act No. 1007168 outlines the powers granted by law to the Secretary of Justice.
The provision reads:
Section 4. Power of the Secretary of Justice. - The power vested in the Secretary of Justice includes
authority to act directly on any matter involving national security or a probable miscarriage of justice
within the jurisdiction of the prosecution staff, regional prosecution office, and the provincial prosecutor
or the city prosecutor and to review, reverse, revise, modify or affirm on appeal or petition for review
as the law or the rules of the Department of Justice (DOJ) may provide, final judgments and orders of
the prosecutor general, regional prosecutors, provincial prosecutors, and city prosecutors.
A criminal prosecution is initiated by the filing of a complaint to a prosecutor who shall then conduct a
preliminary investigation in order to determine whether there is probable cause to hold the accused for
trial in court.69 The recommendation of the investigating prosecutor on whether to dismiss the
complaint or to file the corresponding information in court is still subject to the approval of the
provincial or city prosecutor or chief state prosecutor.70
However, a party is not precluded from appealing the resolutions of the provincial or city prosecutor or
chief state prosecutor to the Secretary of Justice. Under the 2000 NPS Rule on Appeal, 71 appeals may
be taken within 15 days within receipt of the resolution by filing a verified petition for review before the
Secretary of Justice.72
In this case, the Secretary of Justice designated a panel of prosecutors to investigate on the Complaint
filed by Dr. Inocencio-Ortega. The First Panel, after conduct of the preliminary investigation, resolved
to dismiss the Complaint on the ground that the evidence was insufficient to support a finding of
probable cause. Dr. Inocencio-Ortega filed a Motion to Re-Open and a Motion for Partial Investigation,
which were both denied by the First Panel. Before Dr. Inocencio-Ortega could file a petition for review,
the Secretary of Justice issued Department Order No. 710 and constituted another panel of prosecutors
to reinvestigate the case. The question therefore is whether, under the 2000 NPS Rule on Appeal, the
Secretary of Justice may, even without a pending petition for review, motu proprio order the conduct of
a reinvestigation.
The 2000 NPS Rule on Appeal requires the filing of a petition for review before the Secretary of Justice
can reverse, affirm, or modify the appealed resolution of the provincial or city prosecutor or chief state
prosecutor.73The Secretary of Justice may also order the conduct of a reinvestigation in order to resolve
the petition for review. Under Section 11:
SECTION 11. Reinvestigation. If the Secretary of Justice finds it necessary to reinvestigate the case,
the reinvestigation shall be held by the investigating prosecutor, unless, for compelling reasons,
another prosecutor is designated to conduct the same.
Under Rule 112, Section 4 of the Rules of Court, however, the Secretary of Justice may motu
proprio reverse or modify resolutions of the provincial or city prosecutor or the chief state prosecutor
even without a pending petition for review. Section 4 states:
SEC. 4. Resolution of investigating prosecutor and its review. - If the investigating prosecutor finds
cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify
under oath in the information that he, or as shown by the record, an authorized officer, has personally
examined the complainant and his witnesses; that there is reasonable ground to believe that a crime
has been committed and that the accused is probably guilty thereof; that the accused was informed of
the complaint and of the evidence submitted against him; and that he was given an opportunity to
submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.
....
If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu
proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor
or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding
information without conducting another preliminary investigation, or to dismiss or move for dismissal of
the complaint or information with notice to the parties. The same rule shall apply in preliminary
investigations conducted by the officers of the Office of the Ombudsman. (Emphasis supplied)
The Secretary of Justice exercises control and supervision over prosecutors and it is within her
authority to affirm, nullify, reverse, or modify the resolutions of her prosecutors. In Ledesma v. Court
of Appeals:74
Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who, under the
Revised Administrative Code, exercises the power of direct control and supervision over said
prosecutors; and who may thus affirm, nullify, reverse or modify their rulings.
Section 39, Chapter 8, Book IV in relation to Section 5, 8, and 9, Chapter 2, Title III of the Code gives
the secretary of justice supervision and control over the Office of the Chief Prosecutor and the
Provincial and City Prosecution Offices. The scope of his power of supervision and control is delineated
in Section 38, paragraph 1, Chapter 7, Book IV of the Code:
(1) Supervision and Control. Supervision and control shall include authority to act directly whenever a
specific function is entrusted by law or regulation to a subordinate; direct the performance of duty;
restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate
officials or units[.]75
76
Similarly, in Rural Community Bank of Guimba v. Hon. Talavera:
The actions of prosecutors are not unlimited; they are subject to review by the secretary of justice who
may affirm, nullify, reverse or modify their actions or opinions. Consequently the secretary may direct
them to file either a motion to dismiss the case or an information against the accused.
In short, the secretary of justice, who has the power of supervision and control over prosecuting
officers, is the ultimate authority who decides which of the conflicting theories of the complainants and
the respondents should be believed.77
Section 4 of Republic Act No. 10071 also gives the Secretary of Justice the authority to directly act on
any "probable miscarriage of justice within the jurisdiction of the prosecution staff, regional prosecution
office, and the provincial prosecutor or the city prosecutor." Accordingly, the Secretary of Justice may
step in and order a reinvestigation even without a prior motion or petition from a party in order to
prevent any probable miscarriage of justice.
Dr. Inocencio-Ortega filed a Motion to Re-Open the preliminary Investigation before the First Panel in
order to admit as evidence mobile phone conversations between Edrad and respondent and argued that
these phone conversations tend to prove that respondent was the mastermind of her husband's
murder. The First Panel, however, dismissed the Motion on the ground that it was filed out of time. The
First Panel stated:
Re-opening of the preliminary investigation for the purpose of receiving additional evidence
presupposes that the case has been submitted for resolution but no resolution has been promulgated
therein by the investigating prosecutor. Since a resolution has already been promulgated by the panel
of prosecutors in this case, the motion to re-open the. preliminary investigation is not proper and has
to be denied.78
In the same Resolution, the First Panel denied Dr. Inocencio-Ortega's Motion for Partial Reconsideration
on the ground that "the evidence on record does not suffice to establish probable cause."79 It was then
that the Secretary of Justice issued Department Order No. 710, which states:
In the interest of service and due process, and to give both parties all the reasonable opportunity to
present their evidence during the preliminary investigation, a new panel is hereby created composed of
the following for the purpose of conducting a reinvestigation ....
....
The reinvestigation in this case is hereby ordered to address the offer of additional evidence by the
complainants, which was denied by the former panel in its Resolution of 2 September 2011 on the
ground that an earlier resolution has already been promulgated prior to the filing of the said
motion, and such other issues which may be raised before the present panel. 80 (Emphasis supplied)
In her reply-letter dated September 29, 2011 to respondent's counsel, the Secretary of Justice further
explained that:
The order to reinvestigate was dictated by substantial justice and our desire to have a comprehensive
investigation. We do not want any stone unturned, or any evidence overlooked. As stated in D.O. No.
710, we want to give "both parties all the reasonable opportunity to present their evidence. " 81
Under these circumstances, it is clear that the Secretary of Justice issued Department Order No. 710
because she had reason to believe that the First Panel's refusal to admit the additional evidence may
cause a probable miscarriage of justice to the parties. The Second Panel was created not to overturn
the findings and recommendations of the First Panel but to make sure that all the evidence, including
the evidence that the First Panel refused to admit, was investigated. Therefore, the Secretary of Justice
did not act in an "arbitrary and despotic manner, by reason of passion or personal hostility." 82
Accordingly, Dr. Inocencio-Ortega's Petition for Review before the Secretary of Justice was rendered
moot with the issuance by the Second Panel of the Resolution dated March 12, 2012 and the filing of
the Information against respondent before the trial court.
III
The filing of the information and the issuance by the trial court of the respondent's warrant of arrest
has already rendered this Petition moot.
It is settled that executive determination of probable cause is different from the judicial determination
of probable cause. In People v. Castillo and Mejia:83
There are two kinds of determination of probable cause: executive and judicial. The executive
determination of probable cause is one made during preliminary investigation. It is a function that
properly pertains to the public prosecutor who is given a broad discretion to determine whether
probable cause exists and to charge those whom he believes to have committed the crime as defined
by law and thus should be held for trial. Otherwise stated, such official has the quasi-judicial authority
to determine whether or not a criminal case must be filed in court. Whether or not that function has
been correctly discharged by the public prosecutor, i.e., whether or not he has made a correct
ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does
not and may not be compelled to pass upon.
The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain
whether a warrant of arrest should be issued against the accused. The judge must satisfy himself that
based on the evidence submitted, there is necessity for placing the accused under custody in order not
to frustrate the ends of justice. If the judge finds no probable cause, the judge cannot be forced to
issue the arrest warrant.84 (Emphasis supplied)
The courts do not interfere with the prosecutor's conduct of a preliminary investigation. The
prosecutor's determination of probable cause is solely within his or her discretion. Prosecutors are
given a wide latitude of discretion to determine whether an information should be filed in court or
whether the complaint should be dismissed.85
A preliminary investigation .is "merely inquisitorial," 86 and is only conducted to aid the prosecutor in
preparing the information.87 It serves a two-fold purpose: first, to protect the innocent against wrongful
prosecutions; and second, to spare the state from using its funds and resources in useless
prosecutions. In Salonga v. Cruz-Pao:88
The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an open and public accusation of crime, from the
trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive
trials.89
Moreover, a preliminary investigation is merely preparatory to a trial. It is not a trial on the merits. An
accused's right to a preliminary investigation is merely statutory; it is not a right guaranteed by the
Constitution. Hence, any alleged irregularity in an investigation's conduct does not render the
information void nor impair its validity. InLozada v. Fernando:90
It has been said time and again that a preliminary investigation is not properly" a trial or any part
thereof but is merely preparatory thereto, its only purpose being to determine whether a crime has
been committed and whether there is probable cause to believe the accused guilty thereof. The right to
such investigation is not a fundamental right guaranteed by the constitution. At most, it is statutory.
And rights conferred upon accused persons to participate in preliminary investigations concerning
themselves depend upon the provisions of law by which such rights are specifically secured, rather than
upon the phrase "due process of law."91 (Citations omitted)
People V. Narca92 further states:
It must be emphasized that the preliminary investigation is not the venue for the full exercise of the
rights of the parties. This is why preliminary investigation is not considered as a part of trial but merely
preparatory thereto and that the records therein shall not form part of the records of the case in court.
Parties' may submit affidavits but have no right to examine witnesses though they can propound
questions through the investigating officer. In fact, a preliminary investigation may even be conducted
ex-parte in certain cases. Moreover, in Section 1 of Rule 112, the purpose of a preliminary investigation
is only to determine a well grounded belief if a crime was probably committed by an accused. In any
case, the invalidity or absence of a preliminary investigation does not affect the jurisdiction of the court
which may have taken cognizance of the information nor impair the validity of the information or
otherwise render it defective.93 (Emphasis supplied)
Once the information is filed in court, the court acquires jurisdiction of the case and any motion to
dismiss the case or to determine the accused's guilt or innocence rests within the sound discretion of
the court. In Crespo v. Mogul:94
The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires
jurisdiction over the case, which is the authority to hear and determine the case. When after the filing
of the complaint or information a warrant for the arrest of the accused is issued by the trial court and
the accused either voluntarily submitted himself to the Court or was duly arrested, the Court thereby
acquired jurisdiction over the person of the accused.
The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima
facie case exists warranting the prosecution of the accused is terminated upon the filing of the
information in the proper court. In turn, as above stated, the filing of said information sets in motion
the criminal action against the accused in Court. Should the fiscal find it proper to conduct a
reinvestigation of the case, at such stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for
appropriate action. While it is true that the fiscal has the quasi judicial discretion to determine whether
or not a criminal case should be filed in court or not, once the case had already been brought to Court
whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for
the consideration of the Court, the only qualification is that the action of the Court must not impair the
substantial rights of the accused or the right of the People to due process of law.1wphi1
Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the
fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court,
the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on
the merits proceed for the proper determination of the case.
Thus, it would be ill-advised for the Secretary of Justice to proceed with resolving respondent's Petition
for Review pending before her. It would be more prudent to refrain from entertaining the Petition
considering that the trial court already issued a warrant of arrest against respondent. 96 The issuance of
the warrant signifies that the trial court has made an independent determination of the existence of
probable cause. In Mendoza v. People:97
While it is within the trial court's discretion to make an independent assessment of the evidence on
hand, it is only for the purpose of determining whether a warrant of arrest should be issued. The judge
does not act as an appellate court of the prosecutor and has no capacity to review the prosecutor's
determination of probable cause; rather, the judge makes a determination of probable cause
independent of the prosecutor's finding.98
Here, the trial court has already determined, independently of any finding or recommendation by the
First Panel or the Second Panel, that probable cause exists. for the issuance of the warrant of arrest
against respondent. Probable cause has been judicially determined. Jurisdiction over the case,
therefore, has transferred to the trial court. A petition for certiorari questioning the validity of the
preliminary investigation in any other venue has been rendered moot by the issuance of the warrant of
arrest and the conduct of arraignment.
The Court of Appeals should have dismissed the Petition for Certiorari filed before them when the trial
court issued its warrant of arrest. Since the trial court has already acquired jurisdiction over the case
and the existence of probable cause has been judicially determined, a petition for certiorari questioning
the conduct of the preliminary investigation ceases to be the "plain, speedy, and adequate
remedy"99 provided by law. Since this Petition for Review is an appeal from .a moot Petition for
Certiorari, it must also be rendered moot.

However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon
the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state
prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does not
believe that there is a basis for prosecution nor can the fiscal be expected to handle the prosecution of
the case thereby defying the superior order of the Secretary of Justice.
The prudent course of action at this stage would be to proceed to trial. Respondent, however, is not
without remedies. He may still file any appropriate action before the trial court or question any alleged
irregularity in the preliminary investigation during pre-trial.
WHEREFORE, the Petition is DISMISSED for being moot. Branch 52 of the Regional Trial Court of
Palawan isDIRECTED to proceed with prosecution of Criminal Case No. 26839.

The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is -done
and not necessarily to secure the conviction of the person accused before the Courts. Thus, in spite of SO ORDERED.
his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of
the prosecution to the Court to enable the Court to arrive at its own independent judgment as to
whether the accused should be convicted or acquitted. The fiscal should not shirk from the
responsibility of appearing for the People of the Philippines even under such circumstances much less
should he abandon the prosecution of the case leaving it to the hands of a private prosecutor for then
the entire proceedings will be null and void. The least that the fiscal should do is to continue to appear
for the prosecution although he may turn over the presentation of the evidence to the private
prosecutor but still under his direction and control.

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any
disposition of the case as to its dismissal or the conviction or acquittal of the accused rests in the sound
discretion of the Court. Although the fiscal retains the direction and control of the prosecution of
criminal cases even while the case is already in Court he cannot impose his opinion on the trial court.
The Court is the best and sole judge on what to do with the case before it. The determination of the
case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal
should be addressed to the Court who has the option to grant or deny the same. It does not matter if
this is done before or after the arraignment of the accused or that the motion was filed after a
reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the
investigation.95 (Emphasis supplied)