GR No.220685 Petition for Review Rule 45
Transcript of GR No.220685 Petition for Review Rule 45
7/23/2019 GR No.220685 Petition for Review Rule 45
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REPUBLIC OF
THE
PHILIPPINES
SUPREME COURT
MANILA
DIVISION
PEOPLE
THE
PHILIPPINES,
Petitioner,
-
VCTSUS
-
c,R.
No. 220685
(CA-G.R.
SP
No. 128625;
Court
of
Appeals,
Former
Fourth Division
-
Division
of
Five)
ERNESTO
L.
DELOS
SANTOS,
x_______
1::11: _"_"
-x
PETTTION
FOR
REYIEW
ON
CEBTIORABI
UNIDEB
RUI.E
45
The
PEOPLE,
through
private
complainant
University
Manila
and
with
the
conformity/ratification
of
the
Office
the
Solicitor
General,
by
counsel,
respectfully
states:
PREFATORY
Settled
is
the
rule
that
"x
x
x in
an action
for
certiorari,
the
primordial
task
of
the
[appellate]
lclourt
is
to
ascertain
whether
the
lower
court
xxx
acted
with
grave
abuse
of
discretion
amounting
to
excess
or lack
of
jurisdiction
in
the
exercise
of
judgment,
such
that
the
act was
done
in
capricious,
whimsical,
arbitrary
or despotic
manner.
In
a
petition
for
certiorari,
the
jurisdiction
of
the
appellate
court
is
narrow
in
scope.
It is
limited
to
resolving
only
errors
of
jurisdiction."1
A
fortiori,
the
office
of
a certiorari
petition
assailing
the
trial
court's
finding
of
probable
cause
for
'
Chan
v. Court
of .,lgteals.
C.R.
No.
I-59922.
2ti
April ZOt)5,457
SCRA 205,
515
I
OF
of
of
7/23/2019 GR No.220685 Petition for Review Rule 45
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issuance
of
warrant
of arrest
is merely
to
determine whether
the
same has factual
and
legal
bases and are
sufficient
to
indict
respondent
for
the
crime
charged.
It is
beyond
the
ambit
of
the
certiorari
petition
to rule on
the
credibility of
the
witnesses
and
the
probable
value
of
the
evidence so
far
presented
by
the
parties.
HERE, there
exists
probable
cause for
issuance of
warrant of arrest
against accused-respondent
for
Qualified
Theft based on the following undisputed
facts:
a.
ACCUSED-RESPONDENT CONCLUSIVELY
ADMITTED
IN
HIS
COUNTER-AFFIDAVIT2
THAT
DURING
HIS
STINT
AS
THE
GENERAL MANAGER
AND
OPERATOR
OF
PRIVATE
COMPLAINANT
UM'S BPTI, HE CAUSED THE
TAPPING
OF
BPTI'S WATER
AND
ELECTRICITY TO
BE
USED IN THE
CONSTRUCTION OF HIS NEARBY
CTTL
BUILDING.
b.
PER
THE CERTIFICATION ISSUED
BY
UM'S
CORPORATE SECRETARY,3 NO
UM
BOARD RESOLUTION
WAS ISSUED AUTHORIZING ACCUSED-RESPONDENT
TO
TAP
WATER
AND
ELECTRICITY
FROM
BPTI
TO HIS
CTTL
BUILDING.
c.
ON
TOP
OF ALL,
ACCUSED-RESPON DENT,S
SURREPTITIOUS
ELECTRICAL
AND WATER
TAPPING WERE
MADE
BY
HIM
WITHOUT
THE
KNOWLEDGE
NOR
CONSENT
OF
THE
UM
BOARD
OF TRUSTEES.
Rightly
so,
considering accused-respondent's
aforesaid
conclusive
admission,
and
based
on solid factual
premises
backed
up
by
evidence,
the
OCP-Baguio
City
thus found
probable
cause
to indict
respondent
for
Qualified
Theft
in its
Resolution
on
Review
dated 23
September
Zolf
and
Second Resolution
on
Review
dated 23
November
2}t7t.
On
respondent's
appeal, such
administrative
probable
cause
finding
was
affirmed
by the
DOI
in
its Resolution
dated
0g
June
20156.
Moreover,
the
RTC
-
Baguio
City
7 and
60 later
found
probable cause
for
issuance
of
warrant
of
arrest
'
Please
see Arnex
"C"
hereof.
t
Pl"n."
scc Ccrtiflcation
datcd
07 July 201
I
issucd by
UM's Coryrurate
Sccrctary
Atty.
Diosdatlo
G. Maclrid,
attar:hcrl
as
Annex
to
UM's
Crirninal
Comltlaint, Annex
"8"
hcr.eoi.
'
PI"n."
scc
Arrnex
"F"
lrcreot.
'
Pl"na" sec
Anncx
"1"
hercof.
t'
Pl"ns"
sce Anncx
"l("
hercof.
7/23/2019 GR No.220685 Petition for Review Rule 45
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against
respondent
vis-ir-vis
the
charge
for
Qualified
Theft.T
On
respondent's
petition
for
certiorari,
the
Court
of
Appeals
Ispecial
Tenth
Division]
likewise
unanimously
affirmed
the
frial
courts'
judicial
determination
of
probable cause
for
issuance
of
warrant
of
arrest
against
respondent,
and
accordingly
denied
his
certiorari
petition.B
In
its
assailed
split
3-2
Amended
Decision
dated
2
November
2014
and
Resolution
dated
0B
August
2015,
the
Court
of
Appeals'
[Former
Fourth
Division
-
Division
of
Five]
majority
nonetheless
reversed
and
set aside
the
trial
courts'
above
probable
cause
finding.
This
by
practically
accepting
hook
line
and
sinker
accused-respondent's
defenses,
to
wit:
(a)
his
father
Dr.
Virgilio's
alleged consent
to
his
taking
of
water
and
electricity
from
BPTI;
(b)
bona
fide
or
good
faith;
and
(c)
lack
of
intent
to
gain.
contrary
to
the
court
of
Appeals'
[Former
Fourth
Division
-
Division
of
Fivel
majority's
erroneous
supposition
and/
or
theory
however,
these
hotly
contested
factual
issues
of
consent
to
the
taking,
good
faith
and
lack
of
intent
to
gain are matters
of
defense
that
ought
to
be
resolved
by
the
trial
court after
a
full
blown
trial
on
the
merits.
Worse,
aside
from
being
premature such
factual
findings
are
even
prima
facie
belied
by
the
records.
Indeed,
by
resolving
the
same
this
early,
worse
ahead
of
trial,
it
effectively
weighed
the
credibility
of
the
parties'
respective
witnesses
and
determined
the
probative
value
of
the
evidence
so
far
proffered
by
the
parties.
In doing
so,
the
Court
of
Appeals'
IFormer
Fourth
Division
-
Division
of
Five]
majority
had thereby
acted
as
if it
was a
trial
court,
and
worse
indubitably
went
beyond
its
certiorari
j
u
risd
iction.
HENCE,
THIS
PETITION,
NATURE
OF
THE
PEJITION
This is
a
petition
for
review on
certiorari under
Rule
45,
L997
Rules
of Civil
Procedure,
as amended,
seeking
to
annul
and set
aside
the
Court
of
Appeals'[Fourth
'
Pl"n."
see Anncxes
"L"
ancl "Q"
hereof'.
8
Pl"n."
see Arrrrex
"V"
hereof'.
7/23/2019 GR No.220685 Petition for Review Rule 45
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Division
Division
of
Fivel
3-2
Amended
Decision
dated
2L
Novem
ber
2OL4
,
a
nd
Cou
rt
of
Appea
ls
I
Former
Fourth
Division-
Division
of
Fivel
3-2
Resolution
dated
28
August
2015
in
CA-G.R.
SP
No,
L28265,
entitled
*Atty.
Ernesto
L.
Detos
Santos
vs'
RTC
-
Baguio
City,
Br.
60
and
8r.7,
and
lJniversity
of
Manila,
represented
by
Emity
D.
De
Leon",
certified
true
copies
of
the
said
CA
Decision
a
nd
Resolution
a
re
attached
hereto
as
Annexes
"A"
and
"A-1".
TTMELINESS
OF
THE
PETITION
On O3
December 2O14,
private
complainant
UM
received
a
copy
of
the
Court
of
Appeals'
IFourth
Division
Division
of
Fivel
first
assailed
Decision
dated
2L
November
2OI4
in
CA-G.R.
SP
No.
LZB265
which
reversed
and
set
aside
the
previous
Court
of
Appeals'
[Special
Tenth
Division]
Decision
dated
30
July
20L3,
nullified
the
trial
courts'
finding
of
probable
cause
for
Qualified
Theft
against
accused-respondent,
dismissed
the
complaint and
quashed
the warrant
of arrest
against
accused
respondent,
for
which
private
complainant
UM
timely
moved
for
reconsideration
thereof
on
L7
December
2OL4.
On
16 September
2O15,
private
complainant
UM
received
a
copy
of the
Court
of
Appeals'
IFormer
Fourth
Division
Division
of
Fivel
second
assailed
Resolution
dated
28
Aug
ust
20
15
denying
its
motion
for
wh
ich to
file
with
th
is
Honora
ble
Cou
rt a
petition
for
review on certiora
ri u
nder
Ru le
45
.
On
01 October
2015, on
behalf
of
the
People
of the
Philippines,
private
complainant
UM,
on meritorious
grounds,
moved
for
extension
of
thirty
(30)
days
from
01
October
2015
or
till
31
October
2O15
within
which
to file this
instant
petition
for
review on
certiorari.
On
the
same
day
of 01 October
20L5,
the
OSG,
thru
Assistant Solicitor
General
Bernard
G.
Herna ndez,
had
7/23/2019 GR No.220685 Petition for Review Rule 45
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assured
DOI
Prosecutor
General
Claro
A.
Arellano
that
the
OSG
shall
ratify
or
give
its conformity
to
private
complainant
UM's
motion
for
extension
of
time
to
file
petition for
review
on
certiorari,
and
this
instant
petition
for
review
on
certiora
ri
.e
THE
PARTIES
Petitioner
People
of
the
Philippines
is
represented
herein
by
the
Office
of
the
Solicitor
General
(*OSG")
pursuant
to Section
35
(1),
Chapter
12,
Title
III,
Book
IV,
Administrative
Code of
1987,
with
office
address
at
No.
134
Amorsolo
Street,
Legaspi
Village,
1229
Makati
City.
Private
complainant
University
of
Mania
("UM")
is
an
educational
institution
duly
organized
and
existing
under
Philippine
laws,
with
office
address
at
No.
546,
M.V.
Delos
Santos
Street,
Sampaloc,
Manila.
It may
be
served
notice
and
processes
through
its
counsel
Madrid
Danao
and
Carullo,
at
Suite
1609 lollibee
Plaza,
F. Ortigas,
Jr.
Road,
Ortigas
Center,
1605
Pasig CitY.
Respondent
Ernesto
L. Delos
Santos
is of
legal
age,
Filipino
and
residing
at
No.
108
Cenacle
Drive,
Senville
Subdivision,
Tandang
Sora,
Quezon
City,
where
he
may
be
served
notice and
processes.
He may
be
alternatively
served
notice and
processes
through
his
counsel
Atty,
Filibon
Fabela
Tacardon
of
Tacardon
and
Partners,
of
Unit
501,
West
Mansion
Condominium,
West
Avenue
Cor.
Zamboanga
Street
L1O4
Quezon
City.
STATEMENT
OF
FACTS
AND
ANTECEDENT
PROCEEDINGS
1. Sometime
in
1913, the
University
of
Manila
was
organized
and
established by
Dr.
Mariano
V.
Delos Santos,
his brother
Dr.
Apolinario
Delos Santos,
Dr.
Buenaventura
Bello,
Atty.
Antonio
Rivera
and
Maria Delos Santos.
2. Per its
Articles
of
Incorporation,
UM
was
incorporated
as an
ordinary
corporation.
Through
the
years,
"
Plcasc
sec tlrc OSC's lcttcr
tlatcd 0l Octobcr 2015
to thc
DOJ,
attached
as
Anncx to this
instant Petition's
Vcrilication
and
Ccrtiflcation
Against
Non-Foruru Shopping.
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the UM
Board
of
Trustees
included
individuals
who are
not
immediate
members
of
the
Delos
Santos
family.
3.
Pursuant
to the
purposes
under
its
Amended
Articles
of
Incorporation,
specifically
the
establishment
and
operation
of
tourist
inns,
private
respondent
UM
established
in
Baguio
City
the
Benguet
Pines
Tourist
Inn
('BPTI"),
a
business
entity
without
its
own
juridical
personality.
4.
Sometime
in
May 2007,
respondent
Ernesto
L.
Delos Santos
("respondent"), then
being
the
General
Manager and
Operator
of
BPTI,
as
well as
Executive
Vice
President
and
Vice-Chairman
of the
UM
Board
of
Trustees
and
University
Registrar,
commenced
the
construction
of
his
CTLL
Building,
which
is
nearby
or
adjacent
to BPTI.
Consequently,
sometime
in July
2007,
respondent
instructed
Policarpio
M.
Lacsa
("Lacsa"),
then
his driver,
to use
the
electric current
of
BPTI
for the
ball
cutter, bender
and
welding
that
were being
used
for
the construction
of
his
CTTL
Buitding.'o
However,
this
without
any
authorization/consent
from
nor knowledge
of
the
UM
Board
of
Trustees.ll
5.
When the
first
floor
of
his CTLL
Building
was
finished,
respondent
then ordered
Lacsa
to
make an
electrical
connection
coming
from
BPTI
going
to the
basement
of
the CTLL
Building,
to which
the latter
obeyed.12
Again,
this
was
made
without
any
authorization/consent
from nor
knowledge of
the
UM
Board
of
Trustees.
6.
On
2L
January
2008,
respondent's
father,
Dr.
Virgilio
Delos Santos
("Dr.Virgilio"),
died.
Prior
to his
death,
Dr. Virgilio
was
the Chairman
of
the
Board
of
Trustees and
70.79o/a
controlting stockholder
of
UM.13
7. During
his
period
of
illness, Dr.
Virgilio
was not
in
good
terms
with respondent.
In fact, Dr.
Virgilio
never
reconciled
with respondent until
his death.la
ru
Plcasc scc Policlrpio Lacsa's
Al'tldavit
datcd 07
JLrly
2011,
attachcrl
as Annex
to
UM's Crinrinal
Cornpany, Anncx
"B"
hcrcol.
"
Pleasc sce
Ccrtification
datctl
07
July
20ll issueil try
UM's
Corpolatc Secrctary
Atty. Diosdndo
G. Madritl, attachctl
as Anncx
to
UM's
Crinrinal
Conrplaint, Anncx
"8"
hercot.
l2
I,olicarpit'r Lacsa's
Alfidavit
ilated 07
July 201 l, Strpra..
r3
Pl"as"
scc Anncxcs "2" to"2-C" of rcsponclcnt's
Countcr'-Allltlavit,
Anncx
"C"
hcrcoil
la
Pleose
scc Afllclavit clated 0l
Scptenibcr
200tt of Ma.
Corazon
Rarnona
Llamas Delos
Santos
antl
Sinunrpaang
Salaysay datcd
08
August
20ll of Elccta Dacuan Arovalo attacheil as
Anncxcs
to UM's Reply-Atlidavit,
Anncx
"D"
hereof.
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B.
Sometime
in
February
2009,
respondent
instructed
Lacsa
to
connect
the
water
supply
of
CTLL
Building
to
the
water
installation
of
BPTI
for
the
purpose
of
making
water
supply
to
the
second
floor
of
CTLL
Building,
which
respondent
intended
to
open
for tourist
who
will
be spending
the
Valentine's
day
therein.ls
Again,
this
tapping
of
water
supply
from
BPTI
was
without
any
authorization
from
the UM
Board
of
Trustees.
9.
At
their
meetings
held
on
18
May
20LI
and
15
lune
2011,
the
members
of
the
UM
Board
were
informed
that
BPTI,
then
under
the
management
of
respondent,
had
incurred
an
operation
net
loss
of
Php717,555.13.
It appears
that
the
said
loss, among
others, was due
to
the fact
that
respondent
was
competing
with
the
business
of
BPTI.
Worse,
it appears
that
respondent
was
diverting
the
guests
of
BPTI
to
his
Dely's
Inn located
at
the
CTTL
Building
and
the
employees
of
BPTI
were
even required
by
respondent
to
serve
in
his Dely's
Inn.
10.
On
16
July
2011,
Dr.
Emily
D. De
Leon
("Dr.
De
Leon"),
President
of
private
complainant
UM,
went
to
Baguio
to
check
BPTI
and
its
personnel.
She
was
authorized
by the
UM
Board
of
Trustees
to
check
and
verify
the
various
anomalies
allegedly
committed
by
respondent
while
he
was
managing
BPTI,
and
to renovate
the
BPTI
premises.
There,
Dr.
De
Leon
came
to
know about
the
25 booklets
of
missing
receipts
of
BPTI
which
occurred
while
respondent
was
the
General
Manager
and
Operator
of
BPTI.
11.
Worse,
Dr.
De
Leon
was
then
apprised
by
Lacsa
about
the
illegal
water
and
electrical
connections
made by
him upon
instructions
of respondent.16
L2.
Thus,
pursuant
to its
Board
Resolution
dated
15
June
20t7, UM,
through
its
President,
Dr.
De Leon,
filed
on
0B
luly 2011
a criminal
complaintlT
for
Qualified
Theft with
the
Office of
the City
Prosecutor
of
Baguio
City
(*OCP-
Baguio City"),
docketed
as
NPS
Docket
No. INV-11-01553.
This
was
subsequently
raffled
to
investigating ACP
Ma.
Nenita
A.
Opiana.
Is
Policarpio Lacsa's Aflitlavit datctl
07 July
201
l,Sttpro..
lo
Plcas"
sec the
Al'lidavit
datccl
07.luly
20ll
of Dr.
Enrily
Dc
Lcon,
attachccl
as Annex to UM's Criminal
Cotuplaint,
Anncx "B"
Ircrcot'.
l'
A
"c,py
of UM's
Criurinal
Cornplaint
with
Anncxcs
is attachctl hercto as Artrlex
"8".
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13.
On
28
July
20LI,
respondent
filed
his
counter-
affidavitl8
wherein
he
categorically
admitted
that
he
actually
caused
the
tapping
of
water
and
electricity
from
BPTI
to
his
QTTL
Building.
However,
by
way
of
defense,
respondent claimed
that
his tapping
of
water
and
electricity
from
BPTI
to
his
CTTL
Building
were
made
with
the
consent
or
permission of
his
father,
Dr.
Virgilio,
majority
stockholder
of
UM.
L4.
In
its
reply-affidavit,le
UM
through
Dr.
De
Leon
pointedly debunked
the
purported
consent
or
permission
of
Dr.
Virgilio
and
asserted
that
the
same
is
bven
barred
or
prohibited
under
the
"Dead
Man's
Statute"
rule.
Dr.
De
Leon
further
pointed
out
that the
sworn
statements
of
respondent's
witnesses
are
highly
self-serving
considering
that
Yolanda
Calanza
and
Josephine
Penera
are
employees
of
respondent,
and
Cynthia
Delos
Santos-Chan,
sister
of
respondent,
is
his
co-oppositor
to
the
probate
of
Dr.
Virgilio's
holographic
will
pending
before
the
RTC-Manila.
She
also
pointed
out
that
the
UM
Board
of
Trustees
did not
authorize
nor
consent
to
respondent's
tapping
of
water
and
electricity
from
BPTI
to
his
CTTL
Building.
15.
However,
in
its
Resolution
dated
29 July
1OLLZo,
the
OCP-Baguio
City
thru
ACP
Opiana
dismissed
the
complaint
for
Qualified
Theft
for
lack
of
probable
cause.
16.
On
19
August
ZALL,
UM
timely
moved
for
reconsideration2l
of
the
Resolution
dated
29
July
zAlL.
On
23
August
ZOLL,
UM
filed
its
Amended
Motion
for
Reconsideration
dated
22
August
20
L",
which
respondent
opposed23.
t7.
In
its
Resolution
on
Review
dated
23
September
2O L'o,
the OCP-Baguio
City
thru
ACP
Rolando
T. Vergara
reversed
the
earlier
resolution
of
ACP Opiana
and
found
probable
cause
to
indict
respondent
for
the
crime
of
Qualified
Theft.
l8
A ct,1-,y
of
rcsponclent's
Cor.rrrtcr-Atl'ldavit
is
attachccl
hcrcto as
Allllex
"C".
l'
A
aolry
of
UM's
Reply-Ailidnvit
witlr
Anncxcs
is attachcd hcreto
as
Altltex
"l)".
20
Plcasc scc
Anncx
"F",
rcspontlcnt's
Petition
trr
Ccrtiolari
dated
l
5 Fcbruaty
20
1
3,
Anncx
"R"
hcreot.
2l
Plcase scc
Anncx
"C",
rcsponclcnt's
Petition
lirr Celtiontri
dated
l5
lrctrt'uat'y
2013,lbid.-
"
A
",,1,y
ol'UM's
Artrcnclcd
Motion
lor
Rcconsitlcration
datctl
22
August
20ll
with Antrcxcs
is
attachetl
hcrcto
as
Attllex
"Bt'.
2r
Pleasc sec Anncx
"[",
rcspondcnt's
Pctition
lirr
Ccrtiorari
clatetl
l5
Fcbt'uaty
2013, Supru..
:{
A
"o1ry
of
tlte OCP-Baguio
City's
Resolution on
Review dated
23 Scptenrber
201
I is attachccl
hcreto as
Annex
"F'n.
7/23/2019 GR No.220685 Petition for Review Rule 45
http://slidepdf.com/reader/full/gr-no220685-petition-for-review-rule-45 9/72
18.
Thereafter,
the
corresponding
information2s
for
Qualified
Theft
was
filed
with
RTC-Baguio
City,
docketed
as
Criminal
Case
No.
32306-R
entitled
"
People
of
the
Phitippines
vs.
Ernesto
Delos
Santos
y
Llamas."
The
case
was
subsequently raffled
to
Branch
7
thereof
then
presided
by
ludge
Mona
Lisa
V.
Tiongson-Tabora
'
19.
By
virtue
of
the
Warrant
Judge
Tiongson-Tabora,
respondent
Septem
ber
20
1 1
.
of
Arrest26
issued
was
arrested
on
appealed
via
Petition
for
review
OCP-Baguio
CitY's
resolutions,
to
by
27
20.
Meantime,
on
24
October
201L,
respondent
moved
for
reconsideration2T
of
the
OCP-Baguio
City's
Resolution
on
Review
dated
23
September
2011,
which
UM
opposed28.
2L.
Respondent
likewise
moved
for
inhibition2e
of
the
entire
OCP-Baguio
City
from
further
taking
part
in the
proceedings.
This
however
was
denied
by
the-
OCP-Baguio
bity
per
its
Resolution
dated
17
November
201130'
22.
In
its
Second
Resolution
on
Review
dated
23
November
2OLL31
,
the
OCP-Baguio
City
thru
Deputy
City
Prosecutor-In
Charge
Gloria
Caranto-Agunos
denied
respondent's
motion
for
reconsideration.
23.
ResPondent
then
with
the
DOJ
SecretarY
the
which
UM
commented.32
23.1
In
its
recent
Resolution
dated
09
June
201S33,
the
DOJ,
thru
Prosecutor
General
Claro
A.
Arella
no,
dismissed
respondent's
petition for
review.
25
Annex
ttG"
hclco['.
ro
plcn."
scc
Arrncxes
"L" and "M",
respondcnt's
Pctition
lirr
Ccrtiolari
datcd
l5
February
2013,Srrpxr..
17
pl"1rsc
scc
Anncx
"O",
rcspondcnt's
Pctition
fbr Certiolari
datcd
l5
Fcbruary
2013,
Supra..
28A.,.,1ry
ol.UM's
Oppositioir
tlatcd 05
Novcutbcr
201
I with
Attttexcs
is attachctl
hcrcto
as
Anllex
"llo''
'"
p
1"0." scc
Allcx
"P",
r'csponrlcnt's
Pctition
tbr
Ccrtiorari
datctl
I 5
Fcbru ary
2013,
S:.rp
ru..
3u
P l"ase
scc
Alrrcx
"R",
rcspondcnt's
Pctition
lbr
Ccrtiolari
dated
I 5 Fcbru
aly
2013
,
Supxr..
,,A
"n,y
o{.
tlre
oCp-Baguio
City's
Scconcl
Rcsolution
on Rcvicrv
datcd
23
Novcurbct'2013
is altachcd
lrcrcto
as
Allllcx
oolt'.
3r
A
copy ol'UM's
DOJ
Comntent
dntcd
02 January
2012
is
atttohed
ltercto
as
Annex
"J"'
ll
Arrncx
"l("
hct'col.
7/23/2019 GR No.220685 Petition for Review Rule 45
http://slidepdf.com/reader/full/gr-no220685-petition-for-review-rule-45 10/72
24.
Meanwhile,
on
03
october
20LL,
respondent
filed
with
RTC-Baguio
City,
Branch
7 an
Urgent
Omnibus
Motion
dated
30
september
2011,
(i)
for
judicial
determination
of
probable cause;
(ii)
to
lift/quash
warrant
of
arrest;
a19
(iii)
to
defer/suspend
-airaignment
and/or
any
proceedings3a.
On
04
October
2011,
respondent
filed
an
Urgent
Supplemental
Motion3s.
25.
In
her
Order
dated
01
February
2OL236
Judge
Tiongson-Tabora
denied
respondent's
sought
declaration
of
lack
of
probable cause,
but
surprisingly
granted
his
motion
to
post
bail
ruling
that
the
instant
Qrulified Theft
charge involving
PhP3Million
is NOT
a
"NON-
BAILABLE"
offense.
Respondent
was
then
hastily
released
from
custody
pursuant
to
the
Order
of
Release
dated
02
Februa
ry
207237
.
26.
Thereafter,
at
his
scheduled
arraignment
held
on
06
February
2AL2,
respondent
pleaded
"NOT
GUILTY"3B
to
the
crime
charged
of
Qualified
Theft.
27.
Subsequently,
both
respondent,
and
the
Prosecution
thru
private
complainant
UM,
moved
for
partial
reconsideration3e
of
the
Order
dated
01
February
20L2.
On
L7
February
20L2,
the
Prosecution
filed
an
Urgent
Supplemental
Motion
for
Partial
Reconsideration.a0
28. Pending
resolution
of
the
parties'
motions
for
partial
reconsideration,
UM
then
moved
for
inhibition
of
Judge Tiongson-Tabora,
which
respondent
opposed.
In her
Order
dated
05
October 20L2,
Judge
Tiongson-Tabora
inhibited
herself
from
handling
the
case.
Thereafter,
the
case
was
re-raffled
to RTC-Baguio
City,
Branch
60
then
presided
by
Judge
Edilberto
Claravall.
34
I,lcas"
scc Arrncx
"T",
rcsponclcnt's
Pctition
lirl Ccrtiolari
dated
l-5 Fctrruary
2013, Supro..
rs
Pl"usc scc
Anncx
"U",
rcsponclcnt's
Pctition
lbr
Ccrtiorari
datcd
I
5
February 2013,
Stpra..
3uA
"c,1ry
of
thc RTC-Baguio
City,
Branch
7's
Ordcr clatccl 0l
Fcbruary
2012is
attachccl
het'cto as
Annex
"L".
l7
Annex
"N'1"
hclcol.
'tsAnnex
"N"
hereof.
t"A,,,rc*cs
"V"
antl
"W",
r'cs1;ondcnt's Petition
firr
Ccrtiorari
clatcd l5
Febluary
2013, Supro..
A
copy of UM's
Motion
lilr
Partial Rcconsidcration
is attachctl hcrcttt
as
Atlnex
"O".
{uAturg,
"P"
het'cof'.
l0
7/23/2019 GR No.220685 Petition for Review Rule 45
http://slidepdf.com/reader/full/gr-no220685-petition-for-review-rule-45 11/72
29.
Subsequently,
Judge
Claravall
issued
his
Order
dated
07
December
207,241,
the
dispositive
portion
of
which
reads:
*WH
EREFORE,
all
the
foregoing
premises
considered,
the
Motion
for
Partial
Reconsideration
filed
by
the
accused
Ernesto
delos
Santos
is
DENIED
for
tack
of
merit.
However,
the
Motion
for
Partial
Reconsideration
filed
by
the
Private
Complainant
is GRANTED.
The
Order
of
the
Court
dated
February
l,
20LZ
granting
the
accused
the
right
to bail
is
recalled.
Consequently,
the
bail
posted
by
the
accused
in
the amount
of
P80,000.00
and
covered
by
Official
Receipt
No'
L275OB7
is
hereby
cancelled.
Let the
aforementioned
amount
be
returned
to
the
payor
upon
proper
presentment
of the
official
receipt
covering
the
said
payment.
Lastly,
let
a
new
warrant
be
issued
against
accused
Ernesto
Delos
Santos."
(Emphasis
in
bold
supplied)
30.
Since
respondent
remains
at
large
and
there
is
a
great
possibility
of
flight,
the
Prosecution
moved
for
issuance
of a
Hold
Departure
Order
against
him.
This
Judge
Claravall
granted
in
its Order
dated
13 February
2013.
31.
Respondent
then
filed with
the
Court
of
Appeals
a
petition
for
certiorari
under
Rule
6542
dated
15
February
2OL3
seeking
the
nullification
of
RTC-Baguio
City,
Branch
7's
Order
dated
01
February
20LL and
Branch
60's
Order
dated
07
December
2012.
This
was docketed
as
CA-G.R.
SP
No.
L28625,
and
raffled
to
the Tenth
Division
thereof.
32.
Thereafter,
in
compliance
with the
CA
Resolution
dated
22
March
2013, UM
commenteda3
to
respondent's
certiorari
petition.
Respondent
then
moved
to
admit
his
replyaa
to UM's
comment,
which
UM opposed.as
''A
"o1',y
o{'RTC-Baguio
City,
Branclr
(r0's
Ortlcrdatcd
07 Dcccurbcr
2012is attachcd
ltcrcto
as
Annex
"Q"
o'Arrrr"*
ttlt"
hcrcot.
{3
Anrte*
"S"
hcrcot.
44
A,rrra,
ttTtt
lrercof.
"
Arrna*
"Utt
hcrcof'.
lt
7/23/2019 GR No.220685 Petition for Review Rule 45
http://slidepdf.com/reader/full/gr-no220685-petition-for-review-rule-45 12/72
33.
On
30
July
201.3,
the
court
of
Appeals
[special
Tenth
Divisionl
unanimously
issued
its
Decisiona6,
the
dispositive
portion
of
which
reads:
*WHEREFORE,
the
instant
Petition
is
DENIED.
The
Order
dated
December
7,
}OLZ
of
the
Regional
Trial
Court,
Branch
7
of
Baguio
City
is
hereby
AFFIRMED
in
toto.
The
case
is
accordingly
REMANDED
to
the
trial
court
for
further
proceedings."
34.
Thereafter,
respondent
moved
for
inhibition
of
the
Justices
of
the
Court
of
Appeals
[Special
Tenth
Division],
which
UM opposed.
35,
Subsequently,
respondent
moved
for
reconsiderationaT
of
the
CA
Decision
dated
30
July
2013.
UM
then
filed
its
comment/oppositiona8
thereto,
to
which
respondent
replied.ae
36.
Meantime,
after
several
postponements,
the
RTC-
Baguio
City,
Branch
60
was able
to
conduct
the
pre-trial
conference
of
the
case
on
26
February
2O 4,
at
which
accused-respondent
dramatically
changed
his
defense
claiming
that:
"
x
x x
he
did
not
steal
the
electrical
and
water
facility
of
the
Benguet
Pines
Tourist
Inn
because
the
tapping
made
by
the
accused
was
made
on
the
transformer
of
Benguet
Pines
Tourist
Inn
and
not
on
its
electric meter
of
Benguet
Pines
Tourist
Inn.
x
x
x"5o
37.
Despite
the
fact
that
respondent's
accusations
were
baseless
and
unfounded,
ofl
05
March
2014,
the
Court
of
Appeals'
[Former
Special
Tenth
Division]
Justices
Acosta,
Lampas
Peratta
and
Antonio-Valenzuela
inhibited
from
further
handling
the
case.
46
Anrrex
o'Vt'hcrcof.
4'
A,ru"*
"147"
hcl'col.
'8
A,rrr"*
"X'o
lrcreol'.
4'
Art,r"*
"Y"
ltcrcof.
50
C,.,py
of
thc
RTC
-
Baguio
City,
Br.anch
(r0's
Prc-Tlial
Ordcr clatctl
2(r Februaly
2014
is
attachecl
hcrcto
as
Annex
,,D'
,
t2
7/23/2019 GR No.220685 Petition for Review Rule 45
http://slidepdf.com/reader/full/gr-no220685-petition-for-review-rule-45 13/72
38. The
case
was
thus
re-raffled
to
the
CA
Fourth
Division.
SurprisinglY,
voting
3-2,
the
Court
of
Appeals
[Fourth
Division-Division
Five]
issued
its
Amended
Decision
dated
21
November
20
4t',
the
dispositive
portion
of
which
reads:
*WHEREFORE,
Premises
considered,
petitioner's Motion
for
Reconsideration
is
GRANTED'
The
assailed
Orders
of
the
trial
courts
are
SET
ASIDE.
The
Complaint
of
Qualified
Theft
against
the
petitioner is
DISMISSED
for
lack
of
probable
cause
and
the
warrant
of
arrest
against
him
is
QUASHED.',
39,
Thus,
on
17
December
20L4,
UM
timely
reconsiderationsz
of
the
said
Amended
Decision
November
2014,
which
respondent
opposed.s3
moved
dated
for
2L
40. On
28
August
2015,
the
court
of
Appeals
IFormer
Fourth
Division
-
Division
of
Fivel
,
dgdn
voting
3-2,
denied
UM's
motion
for
reconsideration.sa
HENCE,
THIS
PETITION.
GROUNDS
FOR
ALLOWANCE
OF
THE
PETITION
I
THE
COURT
OF
APPEALS'
IFORMER
FOURTH
DIVISION
_
DIVISION
OF FIVE]
MAJORITY
WENT
BEYOND
ITS
CERTIORARI
JURISDICTION
IN
ISSUING
ITS
SPLIT
3-2
AMENDED
DECISION
DATED
2L
NOVEMBER
2OT4
AND
RESOLUTION
DATED
28
AUGUST
20L5,
IN
THAT:
IN
CRIMINAL CASES,
THE
TRIAL
COURT
HAS
THE
EXCLUSIVE
ORIGINAL
]URISDICTION
TO
TRY,
t'
Plcas" scc
Arrrrcx
"A"
hcrcol.
tt
Annex
"AAo'hclcof.
5l
Anrre*
'oBB"
hcrcot'.
t4
Pl"n."
sec Anrrcx
"A-1"
hcreot..
1.
t3
7/23/2019 GR No.220685 Petition for Review Rule 45
http://slidepdf.com/reader/full/gr-no220685-petition-for-review-rule-45 14/72
2.
HEAR
AND
RESOLVE
CONFLICTING
FACTUAL
ISSUES.
EXCEPT
IN
ORDINARY
APPEAL,
THIS
POWER
CANNOT
BE
PREMATURELY
ARROGATED
BY THE
COURT
OF
APPEALS
IN
A
MERE
CERTIORARI
PETITION.
WORSE,
THE
COURT
OF
APPEALS'
IFORMER
FOURTH
DIVISION
DIVISION
OF
FIVEI
MAIORITY',S
FIN
DINGS
OF
*IMPLIED
AUTHORITY,"
BONA
FIDE
BELIEF
OR
GOOD FAITH,
AND
LACK
OF
INTENT
TO
GAIN
HAVE
NO
FACTUAL
AND/OR
LEGAL
BASIS.
II
rHE
COURT
OF
APPEALS',IFORMER
FOURTH
DIVISION
-
DIVISION
OF
FIVE]
MA]ORITY
GRAVELY
ERRED
IN
REVERSING
THE
OCP-BAGUIO
CITY/DO]'S
ADMINISTRATIVE
FINDING
OF
PROBABLE
CAUSE
AND
THE
RTC-
BAGUIO
CITY,
BRANCH
7
AND
60'5
DETERMINATION
OF
PROBABLE
CAUSE
FOR
ISSUANCE
OF
WARRANT
OF
ARREST,
IN
THAT:
RE:
CONFLICTING
FACTUAL
ISSUES
IF
AT
ALL,
THE
DISPUTED
FACTUAL
ISSUES
HERE OUGHT
TO
BE
HEARD,
TRIED
AND
RESOLVED
FIRST
BY THE
TRIAL
COURT,
NOT
YET
BY
THE
COURT
OF
APPEALS.
THE
FOLLOWING
ARE
THE
CONFLICTING
FACTUAL
PROPOSITIONS
OF
THE
PARTIES:
1.
RESPONDENT
CLAIMED
THAT
HIS
FATHER
DR.
VIRGILIO
CONSENTED
TO
HIS TAKING
OF
WATER
AND
ELECTRICITY
FROM
UM'S
BPTI
TO
HIS CTLL
BUILDING.
IN CONTRA,
UM
DENIED
THE
SAME
ASSERTING
t4
7/23/2019 GR No.220685 Petition for Review Rule 45
http://slidepdf.com/reader/full/gr-no220685-petition-for-review-rule-45 15/72
2.
THAT
IT WAS
HIGHLY
IMPROBABLE,
IF NOT
IMPOSSIBLE,
CONSIDERING
THE
BREWING
ANIMOSITY
BETWEEN
RESPONDENT
AND
DR.
VIRGILIO
EVEN
PRIOR TO
THE
TIME
OF
THE
SUBJECT
TAKING
IN
2OO7
UP
TO
DR.
VIRGILIO'S
DEATH
IN 2OOB.
THE
COURT
OF
APPEALS'
IFORMER
FOURTH
DIVISION
DIVISION
OF
FIVE]
MAJORITY'S
SWEEPING
CONCLUSION
THAT
THE
UM
BOARD
HAD
THEREBY
IMPLIEDLY
AGREED
OR
ACQUIESCED,
IS
HIGHLY
INAPPROPRIATE
AS
THE
TRIAL
COURT
HAS NOT
FACTUALLY
RULED
THEREON
YET.
CONTRARY
TO
THE
COURT
OF
APPEALS'
IFORMER
FOURTH
DIVISION
DIVISION
OF
FIVE]
SPECIOUS
THEORY,
RESPONDENT'S
ALLEGATIONS
ON
DR.
VIRGILIO'S
ALLEGED
CONSENT
AND THE
UM
BOARD'S
IM PLIED
ACQUIESCENCE
ARE
HIGHLY
DISPUTED
FACTUAL
MATTERS
THAT
CAN
ONLY
BE
VENTILATED
AND RESOLVED
IN
A
FULL
BLOWN
TRIAL
BEFORE
THE
TRIAL
COURT.
AS A MATTER OF
PROBABLE
CAUSE,
AS
BETWEEN
RESPONDENT'S DEFENSIVE
CLAIM
VERSUS UM'S
CONTRA,
THE TRIAL
COURTS' FINDING
OF PROBABLE
CAUSE
MUST
PREVAIL.
RE: THE
COURT OF APPEALS,
IFoRMER
FOURTH DTVTSTON
DIVISION
OF
FIVE]
MAJORITY'S
CONCLUSIONS
3.
4.
l5
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ON
IMPLIED
AUTHORITY,
BONA
FTDE
BELIEF
OR
GOOD
FAITH,
AND THE
ABSENCE
OF
THE
ELEMENT
OF
INTENT
TO
GAIN
THAT
WERE
USED
TO
OVERTURN
COURTS'
THE
TRIAL
FINDING
OF
5.
PROBABLE
CAUSE,
ARE
INAPPROPRIATE
IN
THE
CERTTORARI
PETITION.
THE COURT
OF
APPEALS'IFORMER
FOURTH DIVISION
_
DIVISION
OF
FIVE]
MAJORITY'S
EXCULPATING
CONCLUSIONS
SOLELY
UPHOLDING
RESPONDENT'S
DEFENSES OF
DR.
VIRGILIO'S
PURPORTED
CONSENT
TO
TH
E
TAKING
,
BONA
FIDE
BELIEF OR
GOOD
FAITH,
AND
LACK
OF
INTENT
TO
GAIN,
ARE HIGHLY
INAPPROPRIATE
IN
A CERTIORARI
CONSIDERING
THAT:
PETITION,
THE
OFFICE OF CERTIORARI
IS
MERELY
TO
DETERMINE
WHETHER
OR NOT
THE TRIAL
COURT'S
FINDING
OF
PROBABLE
CAUSE
HAS
FACTUAL
AND LEGAL
BASES.
IT IS
N OT
WH ETH
ER
RESPON
DENT'S
CLAIM
VERSUS
THAT
OF
UM
IS
CORRECT, WHICH CAN ONLY
BE
RESOLVED
BY
THE
TRIAL
COURT IN
A FULL BLOWN TRIAL.
WITHOUT
ANY ABUSE,
LET
ALONE
GRAVE, THE TRIAL
COURTS'
FINDING
OF
PROBABLE
CAUSE
IS
WELL
GROUN
DED U PON
TH
E
FOLLOWING:
A.
AS
CONCLUSIVELY
ADMITTED
BY
HIM
IN HIS
COUNTER-
AFFIDAVIT,
RESPONDENT HAD
CAUSED
THE
TAPPING
OF AND
DIVERTED WATER
AND
6.
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ELECTRICITY
FROM
UM'S
BPTI
TO
HIS
CTLL
BUILDING.
B. RESPONDENT
HAD
TAKEN
WATER
AND
ELECTRICITY
FROM
UM'S
BPTI
WITHOUT
THE
CONSENT
OF
THE
UM
BOARD.
C. RESPONDENT'S
DEFENSE
THAT
HE
TOOK
WATER
AND
ELECTRICITY
WITH
THE
CONSENT
OF
HIS
"DECEASED'
FATHER
DR.
VIRGILIO,
IS
FOREVER
BARRED.
D. RESPONDENT'S
DEFENSE
OF
LACK
OF
INTENT
TO STEAL
IS
EVIDENTIARY
IN
CHARACTER
AND
SHOULD
BE
BETTER
VENTILATED
AND
HEARD
IN
A
FULL
BLOWN
TRIAL.
7.
IF
AT ALL,
THE
HOTLY
CONTESTED
FACTUAL
ISSUES
OF
DR.
VIRGILIO'S
CONSENT
TO
THE
TAKING,
GOOD
FAITH
AND
LACK
OF
INTENT
TO
GAIN
ARE
INDEED
MATTERS
OF
DEFENSE
THAT
OUGHT
TO BE RESOLVED
BY
THE
TRIAL
COURT
IN
THE
TRIAL
PROPER,
III
THE COURT
OF
APPEALS
ISPECIAL
TENTH
DIVISION] CORRECTLY
RULED
IN
ITS
RESOLUTION
DATED 30
JULY
2013
THAT RESPONDENT
IS
NOT
ENTITLED
TO
BAIL AS
A
MATTER
SINCE:
1.
PER
THIS
HONORABLE
COURT'S
RULING IN
PEOPLE
OF
THE
PHILIPPINES
VS, HU
RUEY
CHUN
(G.R.NO.
158064.30 JUNE
2005;
462 SCRA
499
,510-
5
1
5)
AN
D
I7
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OTHER
ESTABLIS
H
ED
]
U
RISPRU DENCE,
TH E INSTANT
CRIMINAL
CHARGE
AGAINST
RESPONDENT FOR
QUALIFIED
TH
EFT
IN
TH
E
AMOU
NT
OF
PHP3,OOO,OOO.OO
PER SE IS
A NON.
BAILABLE OFFENSE,
AS
THE
PENALTY THEREFOR
IS
RECLUSION
PERPETUA PER ARTICLE
310
IN
RELATION TO
ARTICLE 309,
REVISED PENAL
CODE.
PER EXISTING DOJ'S
BAIL BOND
GUIDE
FOR
QUALIFIED
THEFT,
NO
BAIL
SHALL
BE
RECOMMENDED
FOR
TH E
SU
BJ
ECT CHARGE OF
QUALIFIED
TH
EFT
WH
ERE
TH
E
VALUE
OF THE
PROPERTY
STOLEN
IS
PHP3
MILLION, MORE
OR
LESS.
DISCUSSTON
I
THE
COURT OF
APPEALS'IFORMER
FOURTH DIVISION
-
DIVISION
OF
FIVE]
MAJORITY WENT
BEYOND ITS
CERTIORARI
JURISDICTION
IN
ISSUING
ITS
SPLIT 3-2 AMENDED
DECISION
DATED
2L
NOVEMBER
2OL4
AND
RESOLUTION
DATED
28
AUGUST
20L5, IN
THAT:
In Viudez
ff vs,
Court
of Appealsss,
this Honorable
Court had explicitly
explained:
"It
is
well to remember
that
there
is
a
distinction
between the
preliminary inquiryr
which
determines
probable
cause
for
the
issuance
of
a
warrant
of arrest;
and
the
preliminary
investigation
proper,
55
C.R.
N,r.
I-s2t189.
05 .lune
2009;
588 SCRA
345, 356-357.
l8
2.
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which
ascertains
whether
the
offender
should
be
held
for
trial
or
be
released.
The
determination
of
Probable
cause
for
Purposes
of
issuing
a
warrant
of
arrest
is
made bY
the
judge.
The
preliminary
investigation
proper
whether
or
not
there
is
reasonable
ground
to
believe
that
the
accused
is
guilty
of
the
offense
charged
is
the
function
of
the
investigating
prosecutor.
As enunciated
in
Baltazar
v.
People,
the
task
of the
Presiding
judge
when
the
Information
is
filed
with the
court
is first
and
foremost
to determine
the
existence
or
non-
existence
of
probable cause
for
the
arrest
of
the
accused.
Probable
cause
is
such
set
of
facts
and
circumstances
as
would
lead
a
reasonably
discreet
and
Prudent
man
to
believe
that the
offense
charged
in
the
Information
or
any
offense
included
therein
has
been
committed
by
the
Person
sought
to
be a
rrested.
In
determining
probable cause,
the
average
man
weighs
the
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.
A
finding
of
probable
cause
needs
only
to
rest
on
evidence
showing
that,
more
likely
than
not,
a
crime
has
been
committed
and
that
it
was
committed
by
the
accused.
Probable
cause
demands
more
than
suspicion;
it
requires
less
than
evidence that
wou
ld
j
ustifY
conviction."
(
E m
phasis
in
bo
ld
supplied)
t9
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Corollary,
in
Serapio
vs.
Sandiganbayaf,'u,
this
Honorable
Court
had
unequivocally
stated:
"Absent
any
showing
of
arbitrariness
on the
Part
of
the
prosecutor
or
any
other
officer
authorized
to
conduct
preliminaty
investigation,
COURTS
AS
A
RULE
MUST
bTTTN
TO
SAID
OFFICER,S
FINDING
AND
DETERMINATION
OF
PROBABLE
CAUSE,
since
the
determination
of
the
existence
of
probable
cause
is
the
function
of
the
prosecutor.
"
(Emphasis
in
capital
and
bold
suPPlied)
Additionally,
in
Peopte
vs.
Teeu',
this
Honorable
Court
had
emphaticallY
decreed:
"xxx
A
magistrate's
determination
of
probable
cause
for
the
issuance
of
a
search
warrant
is
paid
great
deference
by
a
reviewing
court,
AS
LONG
AS
THERE
WAS
SUBSTANTIAL
BASIS
FOR
THAT
DETERMINATION.
Substantial
basis
means
that
the
questions
of
the
examining
judge
brought
out
such
facts
and
circumstances
as
would
lead
a
reasonably
discreet
and
prudent
man
to
believe
that an
offense
has
been
committed,
and the
objects
in
connection
with
the
offense
sought
to
be
seized
are
in
the
Place
sought
to
be
searche
d."
(Emphasis
in
capital
and
bold
suPPlied)
THUS,
just
like
the
prosecutor's
administrative
finding
of
probable
cause
and
the
trial
court's
determination
of
probable cause
for
the
purpose
of_
issuance
of
search
warrant,
as
long
as
the
trial
court's
determination
of
probable
causJ
fo.
issuance
of
warrant
of
arrest
is
amply
supported
by
sufficient
facts
and
evidence,
the
5t'
C.R.
No.
14tt769.
28 January
2003;
396
SCRA
45u,
468-469'
57
G.R.
No.
14054(t-4'1
.20
January
2(X)3;
395 SCRA
419,
437-438
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appellate
in a
mere
court
cannot
interfere,
let
alone
reverse
it'
certiorari
Petition.
HERE,
in
its
Resolution
on
Review
dated
23
_september
2011,
the
oCP-Baguio
City,
through
ACP
Rolando
T.
Vergara,
found
pr:onunt"
cause
against
respondent
for
Qualified
Theft,
ratiocinating
:
t'After
careful
consideration
of
the
totality
of
the
evidence
submitted
on
record
by
both
parties, we
find
for
the
complaint
University
of
Manila'
AttY.
Delos
Santos'
defense
of
alleged
exPress
consent
of
his
late
?ather
is
barred
and
prohibited
under
the
"Dead
Man's
bt"tut""
pursuant
to
Section
23,
Rule
13O
of
the
Rules
of
Court'
The
Supreme
Court
gives reason
for
this
rule
that
"a
death
has
closed
the
tips
of
one
party,
the
policy
of
the
law
is
to
close
the
liPs
of
the
other",
Nevertheless,
assuming
for
the
sake
of
argument
that
AttY'
Delos
Santos'
claim
that
his
father
gave
him
express
consent
to
make
such
electrical
and
water
connections
is
true,
bY
his
own
categorical
admission
and
as
stated
by
his
witnesses,
such
consent
of
his
late
father,
if there
was
?try,
was
onlY
limited
to
the
period
of the
construction
of
the
CTLL
building.
However,
even
after
the
comPletion
of
the
CTLL
building,
AttY.
Delos
Santos
did
not
disconnect
the
subject
electrical'
and
water
connections,
as
in
fact,
he
surrePtitiouslY
and
illegally
continued
to
make
use
of
the
same,
to
the
grave
damage
and
prejudice
of
the
UM.
This,
despite
the fact
that
sometime
in
March
2O1O;
he
aPPlied
with
and
was
granted bY
the
Baguio
Water
District
water
service
connection
for
his
CTLL
building
but
apparentty
did
not
Push
through
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with
it
for
the
obvious
reason
that
he
could
get electricitY
and
water
from
the
gPff
at
the
exPense
of
the
UM.
More
imPortantlY,
since
the
matter involved
corPorate
propertY,
it
was
not
within
his
iather's-sole
decision
to
allow
him
to
taP
electrical
and
water
services
from
the
UM's
BPTI'
It
indubitably
required
the
approval
of
the
mijoritY
of
the
board
of
directors
of
the
UM.
ClearlY,
AttY'
Delos
Santos
has
fallen
to
present, ds
there was
none,
anY
board
resolution
aPProving
such
electrical
and
water
connections'
The
inevitable
conclusion
therefore
is
that
the
same
were
made
without
the
knowledge
and
consent
of
the
UM,
the
fact
being
that
the
UM
is
an
educational
juridical
entity
with
a
personality
distinct
and
seParate
from
its
stockholders
and
the
same
was
created
Pursuant
to
corporation
law
bY
the
its
incorporation.
Being
a
corporation,
the
stockholders
have
onlY
an
inchoate
right
to
the
corporation's
ProPerties'
It
is,
therefore,
misleading
for
AttY'
Delos
Santos
to
saY that
the
UM
is
established
and
owned
bY
his
family
as a
juridical
entitY
which
owns
the
BPTI.
AttY.
Delos
Santos'
legal
PrePosition
that
the
UM
is
a
close
corporation
is
not
tenable
as
under
Section
96
of
the
Corporation
Code,
and
educational
institution,
like
the
UM,
cannot
be
inc-orPorated
as
a
close
corporation.sB
xxx
XXX
(Emphasis
in
bold
suPPlied)
XXX.,,
t*At
pp.
2-3,
Annex
"F" hercof
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Thereafter,inresolvingrespondent,smotionfor
reconsideration,
il","
ocP
Baguio
city,
thru
Deputy
city
prosecutor
I;
charge
Gloria
caranto
Aquino,.
affirmed
such
probable
cause
finding
in
its.
second
Resolution
on
Review
dated 23
November
2011,
holding:
"We reiterate
here
that:
ResPondent-movant
AttY'
Delos
Santos'
claim
that
his
taPPing
and
consumption
of
electricity
and
water
from
the
Benguet
Pine
Tourist
Inn
which
is
owned
by
the
complainant
University
of
Manila
was
with
the
express
consent
of
his
late
father
Virgilio
D'
Delos
Santos
has
been
and
should
be
considered
as
barred
and
Prohibited
under
the
"Dead
Man's
Statute"
under
Section
23,
Rule
13O
of
the
Rules
of
Court'
ObviouslY,
Dr.
Virgilio
D'
Delos
Santos
Ueing
alreadY
dead,
there
is
no
way
for
him
(Dr. Virgilio
D'
Delos
Santos)
to
confirm
respondent-
movani's
claim
of
"consent"
given
by
his
late
father.
XXX
XXX
XXX
Respondent-movant
should
have
seriously
considered
the
fact
that
BPTI
is
owned
bY
comPlainant
UM
which
is
governed
bY
its
Board
of
Trustees
and,
as
such,
it
is
onlY
the
said
board
that
has
authority
to
give
valid
consent
to
his
use
of
electricity
and
water
from
BPTI
for
several
years
at
the
expense
of
complainant
UM'
But
he
did
not
ever
seek
such
required
consent
and
authority
from
the
Board
of
Trustees
where
he is
even
a
member
and
Vice-Chairman.
Further,
the
declarations
of
witnesses
Dr.
Maria
Corazon
Ramona
Ll.
Delos
Santos
and
UM
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employee
Electa
D'
Arevalo
would
r..io.tslY
negate
respondent-
movant'i
allegition
of
consent
bY
his
late
fathei
Dr'
Virgilio
D'
Delos
Santos
for
his tapping
of
electricity
and
water
from
BPTI
owing
to
their
apparent
severe
estranged
relationshiP
as
father
and
son
way
back
2OO3
or
even
before,
in
that,
atl
throughout
the
seasons
of
his
later
father's
being
on
his
sick
bed,
he,
and
even
his
sister
Dr'
CYnthia
Ll.
Delos
Santos-Chan,
were
rejected
by
their father
to visit
him
bdcause
them
ore
his
death
will
be
accelerated
due
to
the
stress
in
seeing
them
instead
of
him
,""or-ering.
THUS,
WITH
THE
APPARENT
SERIOUS
ESTRANGED
RELATIONSHIP
WHICH
LASTED
UP
TO
THE
TIME
OF
DEATH
OF
THEIR
FATHER,
NOT
ANYONE
OF
RIGHT
MIND
CAN
PLAUSIBLY
CONCLUDE
THAT
RESPONDENT
RESPONDENT'
MOVANT
CAN
OBTAIN
THE
GENEROUS
CONSENT
OF
HIS
FATHER
FOR
THE
TAPPING
AND
UTILIZATION
OF
ELECTRICITY
AND
WATER
FROM
BPTI
AND
DIVERTING
IT
TO
CTLL
BUILDING,
ALSO,
IT
WOULD
NOT
BE
NECESSARY
FOR
HIS
FATHER
TO
INSTRUCT
JOSEPHINE
PINERA
AND
YOLANDA
CALANZA,
WHO
ARE
MERE
EMPLOYEES
OF
UM
THEN
ASSIGNED
AT
BPTr,
TO
EXTEND
SUPPORT
TO
RESPONDENT-MOVANT
TO
INCLUDE
HIS
ELECTRIC
AND
WATER
NEEDS
WHEN
HE
WAS
THEN
THE
GENERAL
MANGER
AND
OPERATOR
OF
BPTI
AND SAID
TWO
EMPLOYEES BEING
HIS
MERE
SUBORDINATES.
SUCH
IS
RATHER
UNREAL
AND
CONTRARY
TO NATURAL
EXPERIENCE.
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We
note
the
untimelY
demise
his
late
father
Dr.
Virgilio
D'
Delos
Santos
on
JanuarY
2L,2008.
Yet,
he
did
not
at
i.y
time
thereafter
ever
seek
such
required
consent
and
authority
from-the
Board
of
Trustees
of
UM'
Also,
the
fac
that
the
Board
of
Trustees
of
U
M
has
alreadY
exPresslY
Pointed
ot'l
and
acted
against
his
aPParent
conf
lict
of
interest
in
his
management
of
BPTI
and
subject
to
verification
his
unauthorized
tapping
and
use
of
electricitY'
*"i.tr-und
other
supplies
from
BPTI
to
his
CTLL
building
and
DelY's
Inn'
he
should
have
comPletelY
disconnected
and
removed
his
said
tapping
installations
from
the
BPTI
immediatelY
or
soon
after
the
resolutions
of
the
Board
contained
in
the
Secretary's
Certificate
dated
June
15,
}OLL
was
sent
bY
the
Corporate
SecretarY
to
BPTI
through
fax
transmission
in
the
late
afternoon
of
said
date
and
that
is
whether
or
not,
at
that
time,
his
CTLL
building
is
still
undergoing
construction.
But
he
did
not
do
so
even
with
and
desPite
the
fact
that
in
march
2O1O
he
was
able
to
get
an
approved
water
service
connection
wiitr the
Baguio
Water
District
for
his
CTLL
building.
THE
INEVITABLE
FINDING
THAT
CAN
BE
HAD
UNDER
THE
CIRCUMSTANCES
I5
RESPONDENT
THAT
MOVANT
UNLAWFULLY
TOOK,
WITH
INTENT
TO
GAIN,
ELECTRICITY
AND
WATER
FROM
BPTI
WITHOUT
CONSENT
AND AT THE
EXPENSE
AND TO
THE
DAMAGE
AND
PREJUDICE
OF
COMPLAINANT
UM
WHICH
OWNS
THE
BPTI.
25
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Because
electricitY
and
water
from
BPTI
is
corPorate
PropertY
of
complainant
UM,
it
would
onlY
be
the
Board
of
Trustees
of
UM
that
can
consent
for and
authorize
respondent-movant
to
tap
electrical
and
water
utilities
from
BPTI'
ApparentlY,
there
was
no
board
resolution
whatsoever
aPProving
such
electricitY
and
water
were
made
without
the
knowledge
and
consent
of
the
UM
which
in
fact,
is
an
educational
juridical
institution
having distinct and
seParate
p".sonality
from its
stockholders
under
the
CorPoration
Code'
As
such
juridical
entity
or
corporation,
the
stockholders'
inchoate
right
to
the
corPorate
ProPerties
would
be
vested
on
them
onlY
upon
its
dissolution
and
liquidation
of
its
assets
or
ProPerties.
Further,
it
would be
misleading
to
claim that
UM,
which
owns
the
BPTI,
is
considered
as
a
familY
owned
or
closed
corporation
considering
that,
under
Section
96
of
the
Corporation
Code,
the
UM,
being
an
educational
institution,
cannot
be
incorporated
as
a
close
corporation.
That
being
the
case,
onlY
valid
consent
or
authoritY
from the Board
of
Trustees
of
comPlainant
UM
can
permit
respondent-movant
to
iawfully
take
and
avail
of
electricity
and
water
from
BPTI.
XXX
XXX
XXX
Likewise,
we
agree
with
the
finding
in the
Resolution
on
Review
that
considering that
resPondent-
movant
had
a
direct
hand
in
the
management
of
BPTI
in
his
caPacitY
as
general
manager
thereof
and
that
he
did
not
in
any
manner
denY
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that
while
he
was
the
manager
anq
oPerator
of
the
establishment'
and
being
then
a
stockholder
and
,rr"--b.roftheBoardofTrusteeof
the
comPlai
nant
U
niversitY
of
Manila
whlch
owns
BPTI,
and
that
as
such
manager
and
oPerator
of
BPTI
and
stockholder
and
member
of
the
Board
of
Trustees
of
comPlainant
UM,
he
had
direct
and
full
access
to
the
entire
Premises
and
buildings
of
BPTI,
that
he
took
electricitY
and
water
from
BPTI
during
the
Period
covered
from
2OO7
and
divert
the
same
to
his
own
CTLL
building
and
which
electricity
and
water
consumption
of
his
CrLl
building
and
DellY's
Inn
which
is
housed
therein
was
Paid
for,
not
bY
him
or
his
later
father
Dr.
Virgitio
D.
Delos
Santos
who
died
on
JanuarY
2L,
2OO8,
but
bY
comPlainant
UM,
the
commission
of
the
offense
charged
against
him
was
attended
bY
the
qualifYing
circumstance
of
grave
abuse
of
the
confidence
rePosed
upon
him
bY
complainant
University
of
Manila'"se
(Emfhasis
in
capital
and
bold
supplied)
on
respondent's
appeal
via
petition
for
review,
the
DOJ,
thru
Prosecutor General
claro A.
Arellano,
affirmed
in
its
Resolution
dated
0B
June
2015
such
probable
cause
finding
of
the
OCP-Baguio
City,
holding:
"This
resolves
the
petition for
review
of
the
"Resolution
on
Review",
as
well
as
the
"second
Resolution
on
Review"
of
the
City
Prosecutor
of
Baguio
City
in the
above-
captioned
case,
both
upholding
the
finding
of
probable
cause
for
qualified
theft
against
respondent-appellant
Atty.
Ernesto
L'
Delos
Santos.
s"At
1r1r.
l4-l(r,
Annex
"l" lrcrcof.
27
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WE
HAVE
JUDICIOUSLY
REVIEWED
THE
RECORDS
OF
THIS
CASE
VIS-A.WS
THE
ARGUMENT
IN
RESPONDENT.APPELLANT'S
PETITION'
BUT WE DID NOT
FIND
ANY
COMPELLING
GROUND
OR
REASON
TO
REVERSE
OR
MODIFY
THE
FINDINGS
AND
CONCLUSION
OF
THE
INVESTIGATING
OFFICE,
WHICH
CORRECTLY
RULED
THAT
THE
ESSENTIAL
ELEMENTS
OF
THE
CRIME
OF
QUALIFIED
THEFT
ARE
PRESENT
IN
THE
CIRCUMSTANCES
OF
THIS
CASE.
Hence,
Pursuant
to
Section
1'2
of
Department Circular
No' 70
dated
July
3'
2000,
this
petition
may
be
dismisse
m9,tu
proprio
since
there
is
no
showing
that
the
investigating
office
committed
any
reversible
error
in
the
questioned
resolutions,
WHEREFORE,
the
Petition
for
review
is
hereby
DISMISSED''60
(Emphasis
in
caPital
and
bold
suPPlied)
Thereafter,
in
resolving
respondent's
motion
for
declaration
of
lack
of
probable
cause
for
issuance
of
warrant
of
arrest,
the
RTC-Baguio
City,
Branch
7
in
its
Order
dated
01
February
20L2,
founO
probable
cause
against
respondent
for
Qualified
Theft,
ratiocinating
:
"Probable cause
is
the
existence
of
such
facts and
circumstances
as
would
excite
the
belief
in a
reasonable
mind
that
a
crime
has
been
committed
and
that
the
respondent
is
probably
guilty
thereof
and
should
be
held
for
trial.
In
the
present case,
the
Court
agrees
with
and
affirms
the
findings
of
the
investigating
prosecutor,
Assistant
City
Prosecutor
Rolando
T.
Vergara,
that
probable cause indeed
exists
for
the
indictment
of
the
accused
for the
crime
of
qualified
theft
considering
that
he
himself
admitted
that
he
cause
the
tapping
of
and
diverted
electricity
t"Anncx
"l("
hcrcof
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and
water
from
the
Benguet
Pines
Tourist
Inn
(BPTI)
which
is
owned
by
the
University
of
Man-ila.
(UM)
to
the
CTLL
building
which
he
owns
withouttheconsentofapprovalof
theBoardofUM'Liketheinvestigating
prosecutor,
the
Court
finds
that
the
defense
relied
upon
bY
the
accused'
that
is,
that
the
taPPing
'nq
diversion
was
with
the
consent
of
his
late
father,
Fr'
Virgilio
D'
Delos
Santos
is
barred
and
Prohibited
under
the
"Dead
Man's
Statute"
under
Section
23,
Rule
13O
of
the
Rules
of
Court'
Dr'
Delos
Santos
couldnotpossiblyconfirmtheclaim
of
the
self-serving
allegation
of
the
accuse
6.n6t
(Emphasis
in
bold
supplied)
subsequently,
ruling
on
respond-ent's
motion
for
partial
reconsideration
oi'tt'l"
order
dated
01
February
2072,
the
RTC-Baguio
city,
Branch
60
affirmed
in
its
order
dated
07
December
2012
the
above
finding
of
probable cause
of
RTC-
Baguio
CitY,
Branch
7
,
decreeing:
'tThe issue
raised
by
the
accused
in
his
Partial
Motion
for
Reconsideration
must
first
be
resolved
considering
that
the
same
involves
the
question
on
whether
or
not
probable
cause
exists
to
indict
him
of
the
crime
charged
in
the
information,
It
must be
pointed
out that
the
accused
is
charged
with
the
crime
based
on
the
existence
of
a
probable
cause.
Probable
cause
is
defined
as
a
reasonable
ground
of
presumption
that
a
matter
is,
or
may
be,
well-founded
in
such
a
state
of
mind
as
would
lead
a
person
of
ordinary
caution
and
prudence
to
believe
or
entertain
an
honest
or
strong
suspicion
that
a
thing is
so'
It
is
also
defined
as
such
facts
as
are
sufficient
to
engender
a
well-founded
belief
that
a
crime
has
been
committed
t"
At
1,.
2, Arrncx
"L"
lrcleol.
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a
nd that
respondents
a
re
proba
bly
guilty
thereof.
There
are
two kinds of
determination
of
probable
cause;
executive
and
judicial.
In
the case
at
bar,
probable
cause
against
the
accused
has already
been
determined
under both
instances.
THE
CONTENTIONS
OF
THE
ACCUSED
IN
HIS
PRESENT
MOTION
ARE EVIDENTIARY
IN
NATURE.
THE
SAME
ARE
BETTER
APPRECIATED
IN
A FULL-BLOWN
TRIAL
OR
IN
A
MORE
APPROPRIATE
MOTION.
THE
PRESENCE
OR
ABSENCE
OF
THE
ELEMENTS
OF
THE
CRIME
IS
EVIDENTIARY
IN
NATURE
AND
IS
MATTER
OF
DEFENSE THAT
MAY
BE
PASSED
UPON
ON
A
FULL-BLOWN
TRIAL
ON
THE
MERITS."62
(Emphasis
in
capital
and
bold
supplied)
Further,
in
ruling
on
respondent's
petition
for
certiorari,
the
Court
of
Appeals
[Special
Tenth Division]
in
its
30
July
2013 Decision
then unanimously
denied
respondent's
certiorari
petition,
and affirmed
in toto
the above
trial courts'
finding of
probable
cause
against
respondent
for
Qualified
Theft, holding:
*HERE,
WE
FIND
NO
GRAVE
ABUSE
OF
DISCRETION
COMMITTED
BY THE TRIAL COURT
IN
AFFIRMING THE INVESTIGATING
PROSECUTOR'S
FINDING
OF
PROBABLE
CAUSE
TO
HOLD
ERNESTO
FOR TRIAL
FOR
QUALIFIED
THEFT.
XXX
XXX
XXX
In this
case,
Ernesto
never
denied
having
used
or
tapped
the
electricity
and
water
of
BPTI;
alleging
only
that
the
same
was
t't
At
p.
2.
Anncx
"Q"
hcrcol.
30
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made
with
the
consent
of
his
late
father
Virgilio,
who,
at
the
time
the
construction
of
the
CTLL
Building
commenced,
served
as
President
of
UM,
The
Pivotal issue
therefore
is
whether
the
prosecutor
and
the
trial
court
has
reason
to
believe
that
Ernesto's
taking
of
electricity
and
water
constitutes
qualified
theft'
WITH
ERNESTO'S
ADMISSION/
THE
COURT
AGREES
THAT
IT
IS
PROBABLE
THAT
THE
CRIME
OF
QUALIFIED
THEFT
HAS
BEEN
CorrrMrrrED
AND
THAT
ERNEsro
rs
PROBABLY
GUILTY
THEREOF.
TO
reiterate,
We
are
not
here
concerned
with
the
finding
as
to
whether
all
the
elements
of
qualified
theft
have
been
sufficientlY
Proven
to
warrant
a
conviction,
because
to
require
the
same
would
already
be
beyond
the
scope
of
the
prosecutor
and
the
trial
court's
task
of
determining
probable cause,
as
these
are
matters
which
are
ProPerlY
addressed
in
a
full
blown
trial.63
XXX
(Emphasis
in
XXX
XXX,,
capital
and
bold
suPPlied)
Despite
such
sound
disquisitions,
_the
court
of
Appeals
IFormer
Fourth
Division-Division
of
Five]
nonetheless
iur"rr"d
and
set
aside
the
foregoing
OCP-Baguio
City/DOl's
administrative
finding
of
probable
cause,
and
the
RTC
Baguio
City,
Branch
7 and
60's
determination
of
probable
cause
for
issuance
of
warrant
of
arrest,
as
affirmed
no
less
by
the
court
of
Appeals
[special
Tenth
Division].
HOWEVER,
the
court
of
Appeals'IFormer
Fourth
Division-Division
of
Fivel majority went
beyond
its
certiorari
jurisdiction
in
issuing
its
assailed
split
3-2
Amended
Decision
and
Resolution,
in
that:
otAt
1r1.,.
l0-12,
Anncx
"V"
hcrcot
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1.
IN
CRIMINAL
CASES,
THE
TRIAL
COURT
HAS
THE
EXCLUSIVE
ORIGINAL
]URISDICTION
TO
TRY,
HEAR
AND
RESOLVE
CONFLICTING
FACTUAL
ISSUES,
EXCEPT
IN
ORDINARY
APPEAL,
THIS
POWER
CANNOT
BE
ARROGATED
BY
THE
COURT
OF
APPEALS
IN
A
M
ERE
CERIIORAR/
PETITION.
In criminal
cases,
the
trial
court
has
the
exclusive
original jurisdiction
to try,
hear
and
resolve
the
parties'
conflicting
factual
issues.
This, upon
its due
determination
of
probable
cause
vis-d-vis
the
issuance
of
the
corresponding
warrant of
arrest.
This
power
cannot
be
arrogated
by
the
appellate
court
in a
mere
certiorari
petition
where
the
sole
issue
is
"grave
abuse".
The only
time
that
the
appellate
court
can
review
the
factual
findings
of
the
trial
court
is
when
the
decision
on
the
merits
is brought
to
it
on
ordinary
appeal.
This ordinary
appeal
however
is
only
possible
when
a
full
blown
trial
shall have
been
conducted
and
held
by
the
trial
court.
AHEAD
OF
TRIAL
ANd
WORSE,
IN
A
MERE
CERTIORARI
WHERE
THE
ISSUE
IS
MERELY
*GRAVE
ABUSE",
the Court
of
Appeals'
[Former
Fourth
Division
Division
of
Fivel
majority
had indubitably
resolved
already
the
conflicting
factual
allegations
of
the
parties.
It
effectively
weighed
the
credibility
of
the
parties'
respective
witnesses
and
determined
the
probative
value
of
the
respective
evidence
presented
by
them,
matters
ripe
only
in
ordinary
appeal.
The Court
of
Appeals'
IFormer
Fourth
Division
Division of
Fivel
majority,
for
reasons
known
only
to
them,
have accepted
hook,
line and
sinker
respondent's
factual
defenses/allegations.
This despite
the fact
that
these
factual
matters
were
explicitly:
a.
DENIED
AND
CONTROVERTED
BY UM,
MORE
SO,
ARE
BELIED
BY
THE
RECORDS;
b, BRUSHED
ASIDE BY THE
OCP
-
BAGUIO
CTTY
/
DOJ AND
THE RTC
BAGUTO
CrTY,
BRANCH
7
AND 60
AS DEFENSIVE
TRIABLE
ISSUES
OF
FACT;
AND
32
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c.
HELD
BY
THE
COURT
oF
APPEALS',
[SPECIAL
TENTH
DIVISIONI
AS
*MATTERS
OF
DEFENSE
BETTERAIREDDURINGTHETRIALPRoPER".
clearly, in
resolving early
the
contested
factual
issues,
the
Court
of
Appeals
[n-ormei
Fourth
Division
Division
of
Fivel
had
thereby
acteO
as
if
it
was
a
trial
court,
and
worse
went
beyond
its
certiorari
jurisdiction'
In
point, in
Marcos-Araneta
vs,
Court
ot
ayyealsla,
this
Honorable
Court
had
decreed
that
the
Court
of
Appeals'
in
its
exercise
of
its
certiorari
jurisdiction
under
Rule
65,
is
limited
to
reviewing
and
correcting
errors
of
jurisdiction'
eruditely
exPlaining:
"
Clea
rlY
the
n,
TH
E
CA
OVERSTEPPED
ITS
BOUNDARIES
WHEN,
IN
DISPOSING
OF
PRIVATE
RESPONDENTS'
PETITION
FOR
CERTIORARI,
IT
DID
NOT
CONFINE
ITSELF
TO
DETERMINING
WHETHER
OR NOT
LACK OF
JURISDICTION
OR
GRAVE
ABUSE
OF
DISCRETION
TAINTED
THE
ISSUANCE
OF
THE
ASSATLED
RTC
ORDERS,
BUT
PROCEEDED
TO
PASS
ON
THE
FACTUAL
ISSUE
OF
THE
EXISTENCE
AND
ENFORCEABILITY
OF
THE
ASSERTED
TRUST.
IN
THE
PROCESS,
THE
CA
VIRTUALLY
RESOLVED
PETITIONER
IRENE'S CASE
FOR
RECONVEYANCE
ON
ITS
SUBSTANTIVE
MERITS
EVEN
BEFORE
EVIDENCE
ON
THE
MATTER
COULD
BE
ADDUCED.
Civil
Case
Nos'
334L-t7
and
3342-17
in
fact
have
not
even
reached
the
pre-trial
stage.
To
stress,
the
nature
of
the
trust
allegedly
constituted
in
Irene's
favor
and
its
enforceability,
being
evidentiary
in
nature,
are
best
determined
by
the
trial
court.
The
original
complaints
and
the
amended
complaint
certainly
do
not
even
clearlY
indicate
whether
the
t'{
C.R.
N,,.
15409(r.
22 Augtrst
200til
5(rl
SCRA'
4l
'
58--59'
JJ
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asserted
trust
is
implied
or
express.
To
be
sure,
an
express
trust
differs
from
the
implied
varietY
in
terms
of
the
manner
of
proving
its
existence.
Surely,
the onus of
factuallY
determining
whether
the
trust
allegedly
established
in
favor
of
Irene,
if one
was
indeed
established,
was
implied
or
express
properly
Pertains,
at
the
first
instance,
to
the
trial
court
and
not
to
the
aPPellate
court
in a
sPecial
civil
action
for certiorari,
as
here.
In
the
absence
of
evidence
to
Prove
or
disprove
the
constitution
and
necessarily
the
existence
of
the
trust
agreement
between
lrene,
on
one
hand,
and
the
Benedicto
GrouP,
on
the
other,
the
aPPellate
court
cannot
intelligently
pass
upon
the
issue
of
trust.
l\
Pronouncement
on
said
issue
of
trust
rooted
on
speculation
and
conjecture,
if
properly
challenged,
must
be
struck
down,
So
it must
be
here"'
(EmPhasis
in
bold
supplied)
Contrary
to
the
Court
of
Appeals'
_[Former
Fourth
Division
-
Division
of
Five]
majority's
stanceuu,
while
Marcos-
Araneta had different
factual
milieu
from
the
instant
case,
the
enunciated
ruling
therein
is
clearly
relevant
and
applicable
to
this
case
Clearly,
far from
limiting
itself
in
resolving
whether
the
trial
courts
had
gravely
abused
their discretion
in
finding
probable
cause
for
issuance
of
warrant
of arrest
against
accused-respondent,
the
Court
of
Appeals'
fFormer
Fourth
Division
-
Division of
Fivel
majority
delved
already
with
the
merits of
the
case as
it already
ruled
in favor
of
accused-
respondents'
controverted
factual
defenses.
This
logically
presupposed
the
weighing
of
the
parties'
evidence
and
determining
the
credibility
of
parties'
respective
witnesses,
which
however
were
highly
inappropriate
and
improper
at
this
stage
of
the
proceedings.
t'5
At
p.
-j,
Anncx
"A-1"'hcrcof
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2.
WORSE,
THE
COURT
OF
APPEALS'IFORMER
FOURTH
DIVISION
DIVISION
OF
FIVE]
FINDINGS
OF
"IMPLIED
AUTHORITY",
BONA
FIDE
BELIEF
OR
GOOD
FAITH
AND
LACK
OF
INTENT
TO
GAIN
HAVE
NO
FACTUAL
AND/OR
LEGAL
BASIS.
As
the
ocP-Baguio
city/Dol,
the
RTC
Baguio
city,
Branch
7
and
60
and
the
3-0
unanimous
Court
of
Appeals
[Special
Tenth
Division]
had
spoken
on
the
existence
of
[robable
cause
against
respondent,
it
then
behooved
upon
tf-l*
Court
of
Appeals
IFormer
Fourth
Division
Division
of
Fivel
to
heed
their
call.
This,
as
such
determination
of
probable
cause
is
well
grounded on
palpable
valid
tacts,
albeit
contested
by
respondent.
This
matter
of
exercise
of
discretion
ought
have
been
the
only
issue
in
the
certiorari
petition.
Specifically,
on
the
matter
of
grave
abuse
only.
It cannot
go
beYond.
Accordingly,
the
split
3-2
Amended
Decision
dated
2t
November
2OL4
and
Resolution
dated
28
August
2015
upholding
respondent's
factual
propositions
and
therefore
reversing
tlre
RTC
Baguio
City,
Branch
7
and
60
judicial
finding
of
probable
cause
for
issuance
of
warrant
of
arrest
against
accused
respondent,
and
the
Court
of
Appeals'
[Special
Tenth
Division]
3-0
unanimous
Decision
dated
30
July
2013,
is
UNPROCEDURAL.
It
resolves
substantive
issues
in an
improper
and
inappropriate
manner,
divesting
and
skipping
the
original
and
exclusive
jurisdiction
of the
trial
court
to
hear,
try
and
decide
factual
issues.
II
THE COURT
OF
APPEALS'IFORMER
FOURTH
DIVISION
-
DIVISION
OF FIVE]
MAJORITY
GRAVELY
ERRED
IN
REVERSING
TH
E
OCP-BAGUIO
CITY/DOJ'S
ADMINISTRATIVE
FINDING
OF
PROBABLE
CAUSE
AND
THE
RTC-
BAGUIO
CITY,
BRANCH
7
AND
60'5
DETERMINATION
OF
PROBAtsLE
CAUSE
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FOR
ISSUANCE
OF
WARRANT
OF
ARREST,
IN
THAT:
RE:
CONFLICTING
FACTUAL
ISSUES
IF
AT ALL,
THE
DISPUTED
FACTUAL
ISSUES
HERE
OUGHT
TO
BE
HEARD,
TRIED
AND
RESOLVED
FIRST
BY
THE
TRIAL
COURT,
NOT
YET
BY THE
COURT
OF
APPEALS.
THE
FOLLOWING
ARE
THE
CONFLICTING
FACTUAL
PROPOSITIONS
OF
THE
PARTIES:
1
.
RESPON
DENT
CLAIM
ED
THAT
HIS
FATHER
DR.
VIRGILIO
CONSENTED
TO HIS
TAKING
OF
WATER
AND
ELECTRICITY
FROM
UM'S
BPTI
TO
HIS
CTLL
BUILDING.
IN
CONTRA,
UM
DENIED
THE
SAME
ASSERTING
THAT
IT
WAS
HIGHLY
IM
PROBABLE,
IF
NOT
IMPOSSIBLE,
CONSIDERING
TI-{E
BREWING
ANIMOSITY
BETWEEN
RESPONDENT
AND
DR.
VIRGILIO
EVEN PRIOR
TO
THE
TIME
OF
THE
SUBJECT
TAKING
IN 2OO7
UP
TO
DR.
VIRGILIO'S
DEATH
IN 2OOB.
In
its
assailed
Amended
Decision,
the Court
of
Appeals
IFourth
Division
Division
of
Five]
seemed
to
have
supposed,
albeit
erroneously,
that
respondent's
father
Dr.
Virgilio
had
consented
to his taking
of
water
and
electricity
from
UM's
BPTI
to
his CTLL
Building,
viz.:
"The
fourth
element
of
the
above-
mentioned
crime,
i.e., that
it be
done
without
the
owner's
consent,
is absent
in this
case.
Petitioner's
use of
the
electricity
and water supply
of
BPTI was
done
with
the
consent and
imprimatur
of
his
father,
Virgilio,
who was
at
that
time
the
majority
stockholder
and
President
and
Chairman
of
the
Board
of
Trustees of
UM
which
in
turn
owns
BPTI.
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The
peculiar
circumstances
of
this
case
permit
a
conclusion
that
Virgilio
was
given
an
apparent
authoritY
bY
the
Board
of
Trustees
of UM
to
give
such
consent
on
behalf of
the
latter."66
Despite
private
complainant
UM's
pointed
argument
in
its
motion
'for
reconsideration
against
such
erroneoUs
supposition,
the
Court
of
Appeals
[Former
Fourth
Division-
Division
of
Fivel
did
not
even
bother
to
explain
the
same
in
its
Resolution
dated
2B
August
2015.
There,
it
nonchalantly
reiterated
its
say-so
finding:
"Petitioner's
use
of
the
electricity
and
water
supply
of
BPTI
was
with
the
consent
of
his
father
who
was at
that
time
the
majority
stockholder
and
President
and
Chairman
of
the Board
of
Trustees
of
UM.
Virgilio
Delos Santos
gave
his
consent
to
his
son
(herein
petitioner) to use
BPTI's
electricity
and
water supply
in
2007.
Thereafter,
and
until
Virgilio's
death
in
2008,
the Board
of
Trustees
of UM
did
not
object
to
or
repudiate
said
consent."67
RECORDS
WOULD
HOWEVER
SHOW
THAT
FI\R
FROM
BEING
A SETTLED
FACTUAL
ISSUE,
RESPONDENT'S
FACTUAL
ALLEGATION
THAT
HIS
FATHER
DR.
VIRGILIO
HAD
CONSENTED
TO
HIS
TAKING
OF
WATER
AND
ELECTRICITY,
WAS
POINTEDLY
CONTROVERTED
AND
DISPUTED
BY
UM.
In
its
amended
motion
for reconsideration
of
the OCP-
Baguio
City's
Resolution dated
29 July
2011, UM
had
explicitly
contested
respondent's
aforesaid
allegation,
to
wit:
"More
on the
issue of
consent,
the Sinumpaang
Salaysay
executed
by
Electa
D. Arevalo
(attached
to
the
Roelo
[src])
would
negate
any
such
consent
by
Atty.
Virgilio
de
los
Santos
to
the
tapping
of
electricity
and
water by
Atty. Ernesto
de
los
Santos.
Said affiant
stated:
uo
At
1',.
B,
Annex
"A"
hcrcol'.
t"
At
1,.
(r
Annox
"A"-1"
hcrcol'.
5t
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'11.
Noong
MaY L3,
2003
siYa
(referring
to
Virgilio
de
los
Santos)
ay
mahospital
ulit
sa
kanyang
sakit
na
prostate
cancer
sa
Medical
Center
Manila.
Ako
uli
ang
nag-alaga
at
nabantay
sa kanya.
Ang bilin
sa akin
ay
away
iyong
bibisitahin
siya
ng kanyang
.
asawa
at
mga
anak
na
sina
AttY'
Ernesto
de
los Santos
at
Dr.
Cynthia
de
los Santos
Chan.
Baka
siYa
raw aY
mas
lalung
mamatay
kaysa
gagaling.'
'9.
Sa
tuwing
ako
ay
inuutusan
ni
Dr.
Virgilio
de
los
Santos
na
bibili
ng
mga
prutas
sa Binondo
o
ibang
lugar
ang
bilin
niya
sa akin
ay
ako
lang
daw
ang
dapat bibili
ng
kanyang
mga
prutas
at'huwag
iutos
sa iba
pati
ang
kanyang
mga anak
dahil
baka
lasunin
daw
siya.'
The
aforequoted
facts
would
show
the
estranged
relationship
of
Virgilio de
los
Santos
with
his
son
Ernesto
de
los
Santos
dating
back
2OO3
or
even
before.
With
this
seemingly
irreconcilable
estranged
relationship,
which
lasted
up
to
the
time
of death
of
Virgilio
de
los
Santos,
would
anybody
in
his right
mind
plausibly
conclude
that
Ernesto
de
los
Santos
can
get
the
consent
of Virgilio
de los
Santos
to
the utilization
and
tapping
of
electricity
and
water
from
BPTI and
diverting
it to CTLL
Building?
And
would
Virgilio
de
los
Santos
instruct
Josephine
Pinera
and
Yolanda
Calanza,
who are
mere employees
of
U.M.
assigned
then
at
BPTI,
to
extend
support
to
Ernesto de
los
Santos
to
include
his electrical
and
water
needs
when Ernesto
de
los
Santos
was
then
the
manager
and
operator
of
BPTI
and
these
two
(Penera
and Calanza)
were
his
mere
subordinates
who would
Kow-tow
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to
whatever
he
(Ernesto)
wants
to
do
there?
It
would be
very
funnY
a
nd
indeed
rid
icu lous
for
the
subordinates
to
be authorizing
their
boss
to
tap
electricity and
water.
This
is
really
against
the
everyday
experience
of mankind
and
belongs
to
the
miraculous.
Fu
rthermore,
when
Virgilio
de
los
Santos
got
sick
alreadY
he
refused
sine then
to see
Ernesto
de
los Santos
and
Cynthia
de
los
Santos-Chan.
The
affidavit
of
Maria
Corazon
Ramona
L. de
los
Santos
on
this
score
states:
'It
was only
when my
father
was
sick
that
he
refused
to
see
them.
He
said
that
he might die
early
because
of
the
stress
of
seeing my
brother
and
sister.'
(Se
Rollo,
Affidavit
of
Ramona
Delos
Santos,
par.
J)'."oe
(Emphasis
in
bold
supplied)
IN FACT, in its
comment
to
respondent's
CA
petition
for
certiorari,
UM had
categorically
asserted:
"Furthermore,
it is extant
from
the
affidavits
executed
by
Electa
D.
Arevalo
and
Ma.
Corazon
Ramona
Ll.
Delos
Santos
that the
relationship
of
petitioner
and
his
deceased
father
had already
soured
prior
to the death
of
the
latter.
The
alleged
consent
given
by
petitioner's
deceased
father
is therefore
highly
dubious.
In the natural
order
of
things,
persons
whose
relationship
is
estranged
would
necessarily refuse
to
give
consent
or extend benefit
to the
other. Interestingly,
petitioner
had failed
to refute, hence
deemed
to have
admitted
such
fact."6e
t't
At
1lp.
(r-7,
Annex
"ll"
hcrcof.
t"'
At
pp.
22-23,
Annex
"S"
Irercol.
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IF
AT ALL,
FAR
FROM
BEING
SETTLED
AS
THE COURT
OF
APPEALS'
IFORMER
FOURTH
DIVISION
DIVISION
OF
FIVE]
MAJORITY
HAD
ERRONEOUSLY
SUPPOSED
IT TO
BE,
WHETHER
OR
NOT
DR.
VIRGILIO
HAD
CONSENTED
TO
RESPONDENT'S
TAKING
OF
WATER
AND
ELECTRICITY,
IS
CLEARLY
A
HOTLY
DISPUTED
AND
CONTESTED
FACTUAL
ISSUE
RESOLVABLE
ONLY
VIA
FULL
BLOWN
TRIAL.
2.
THE
COURT
OF
APPEALS'
IFORMER
FOURTH
DIVISION
DIVISION
OF
FIVE]
MA]ORITY'S
SWEEPING
CONCLUSION
THAT
THE UM
BOARD
HAD
THEREBY
IMPLIEDLY
AGREED
OR
NCQUIESCED,
IS
HIGHLY
INAPPROPRIATE
AS
THE
TRIAL
COURT
HAS
NOT
FACTUALLY
RULED
THEREON
YET.
The
Court
of
Appeals'
IFourth
Division
Division
of
Fivel
majority
further
asseverated
in its
Amended
Decision:
"Virgilio, with the
acquiescence
of
the
Board
of
Trustees
of
UM,
gave
his
consent
to
the
petitioner
to
use
BPTI's
electricity
and
water
supply
in
2007.
Thereafter,
and
until
the death
of
Virgilio
in
2008,
the
Board
of
Trustees
of
UM
did
not
object
to
or
repudiate
the
said act
of
Virgilio,
In other
words,
the
Board
did
not
put
an
end
to
this
arrangement
wh
ich
cou
ld
g
ive
it
sufficient
ground
to file
a
criminal
case
against
the
petitioner
of
the
latter
continued
to use
that
water
suPPIY
despite
the
clear
prohibition
by
the
Board of
Trustees
of
the
university.
It
was
only
in
20tL,
when
petitioner
and
Cynthia
opposed
the
Probate
proceedings
of
the estate
of
their
father
initiated
by their
sister
Ramon
[sic]
and
when
there
was
already
a
serious
corporate
squabble
between
and
among
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the
members
of
the
Board
of
Trustees
of
UM
that
a
complaint
for
qualified
theft
was
filed
against
the
petitioner
as
We
note
in this
case.
If
the
Board
of Trustees
of
UM
trulY
believed
that
Virgilio
had
no
authority
to
give
consent
on
its behalf,
it
could
have
overturned
and
nullified
his
decision
to
allow
the
petitioner
to
use
the
electricity
and
water
supply
of
its
ProPertY
in
Baguio City
from
its inception.
The
fact
that
the
Board
of
Trustees
of
UM did
not
prevent
the
petitioner
to
continue
to
openly
use
its
electricity
and
water
supply
during
the lifetime
of
Virgilio, and
even
immediately
thereafter,
clearly
manifests
that
it
acquiesced
to
Virgllio's
giving
of
consent
to the
petitioner."T0
In its assailed
Resolution
dated
28
Court
of
Appeals'
[Former
Fourth
Division
majority
then
merely repeated:
Aug
ust
2OL5
,
the
-
Division
of
Fivel
"The
Board
of
Trustees of
UM
could
have
easily overruled
and
nullified
Virgilio's
decision
to allow
the
petitioner
to
use
its
electricity and
water supply
in
Baguio
City.
The
fact
that
the
Board
of
Trustees
of
UM
did
not
prevent
the
petitioner
to
continue
to openly
use
its electricity
and
water
supply during
the
lifetime
of
Virgilio, and
even immediately
thereafter
lasting
for
four
years,
clearly
manifests
that
it
acquiesced
to
Virgilio's
giving
of
consent
to
the
petitioner.
It
was only
after
a serious
family/corporate
squabble that
happened
between
and
among
the corporate
directors
that
the criminal
case was
filed
against
petitioner.
It is well-entrenched
that
if
a
corporation knowingly
permits its officert
or
any other agent,
to
perform
acts
within the
scope
of an apparent
authority,
holding
him
out
to the
public
as
possessing
power
to do
those acts,
the
corporation
will,
as
against
'"
At
1r1r.
8-9, Anrrcx
"A"
hercou
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any
person
who
has
dealt
in
good
faith
with
the
corporation
through
such
agent,
be
estopped
from
denying
such
authority,
Apparent authoritY
is
derived
not
merely
from
practice.
Its
existence
may be
ascertained
through
1)
the
general
manner
in
which
the
corporation
holds
out
an
officer
or agent
as
having
the
power
to act,
or
in other
words,
the apparent
authority
to
act
in
general,
with
which
it clothes
him;
or
2)
the
acquiescence
in
his acts
of
a
particular
nature,
with
actual
or
constructive
knowledge
thereof,
within
or
beyond
the
scope
of
his
ordinary
powers.
Virgilio's
apparent
authority
to
juggle
the
funds
of UM
with
his
own
funds
is clearly
demonstrated
bY
UM's
own
attached
evidence,
to
wit:
"They
failed
to appreciate
the
fact
that
it
was
even
mY
father
who
shouldered
his
grandchildren's
expense.
This
was
evidenced
bY
a
certification issued
by
the
President
and
Chief of
Academic
Officer,
copy
of
which
is attached
hereto
as
Annex
"8"
attesting
that
mY brother's
second
mistress
has
been
receiving
monthly
allowance
from
the University
in the
amount
of
Nine
Thousand
Eight
Hundred
Twenty
Five
Pesos.
xxx"
By
giving
Virgilio an
aPParent
authority,
UM's Board
of
Trustees
cannot
now deny
and
repudiate
the
legal
effect
of
Virgilio's
consent
given
to the
petitioner
to
use
the
electricity and
water
supply
of
BPTI."71
Again,
the
Court
of
Appeals'
IFormer
Fourth
Division
Division
of
Fivel majority
had
accepted
hook,
line and
sinker
respondent's allegations
in
his CA
certiorari
petition
and
motion
for
reconsideration.
IT
TREATED,
ALBEIT
UNPRoCEDURALLY,
RESPONDENT',S
ALLEGATTONS
AS
UNDISPUTED
GOSPEL
TRUTHS.
''
At
pp-
(r-7,
Anrrcx
"A-1"
hclcof'.
42
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SUCH
ALLEGATIONS
WERE
HOWEVER
CATEGORICALLY
CONTRADICTED
BY UM.
PER
THE
SUFFICIENT
DOCUMENTARY
AND
CONTROVERTING
AFFIDAVIT
EVIDENCE
SUBMITTED
BY
UM
DURING
PRELIMINARY
INVESTIGATTON, PLUS
RESPONDENT'S
OWN
CONCLUSIVE
ADMISSIONS
IN
HIS
AFFIDAVIT,
IT
IS
WELL
ESTABLISHED
THAT:
(i)
RESPONDENT
HAD
TAKEN
WATER
AND
ELECTRICITY
FROM
UM'S
BPTI
TO
HIS
CTLL
BUILDING;
(ii)
THrs
TAKTNG
WAS
WTTHOUT
THE
CONSENT
OF THE UM
BOARD
OF
TRUSTEES,
AS
IN
FACT,
THEY
HAD
NO
KNOWLEDGE
NOR
HAD
ACQUTESCED
TO
RESPONDENT,S
TAKING;
AND
(iii)
RESPoNDENT
WAS
THE
GENERAL
MANAGER
OF
UM'S
BPTI
AND
oFFrCER/STOCKHOLDER
OF
UM
AT
THE
TIME
OF SAID
TAKING,
THESE
sHoULD
HAVE
BEEN
ENOUGH
VIS-A-VIS
THE
DETERMINATION
OF
PROBABLE
CAUSE
FOR
ISSUANCE
OF
WARRANT
OF
ARREST
AGAINST
RESPONDENT
FOR
QUALIFIED
THEFT.
WORSE,
the Court
of
Appeals'
IFormer
Fourth
Division
-
Division
of
Fivel
majority's
factual
findings
are
even
bereft
of
any
factual
and
legal
bases.
It
bears
stressing
that:
1)
THE
UM
BOARD
OF
TRUSTEES
HAD
DISCOVERED
RESPONDENT
SURREPTITIOUS
TAKING
ONLY
SOMETIME
IN
JUNE
aOIL,
FOR
WHICH
THEY
IMMEDIATELY
RESOLVED
TO INITIATE
A
QUALIFIED
THEFT COMPLAINT
AGAINST
RESPONDENT
IN
JULY
20LL72.
2) RESPONDENT
WAS
ABLE
TO CONCEAL
THrS
ILLEGAL
TAKING
AND
THEFT
OF
WATER
AND
ELECTRICITY
AS
HE WAS
THE GENERAL
MANAGER
OF
UM'S
BPTI
WHEN THE
SUBJECT
ILLEGAL
WATER
AND
"l,lcasc
scc
thc Ai'lirlavits
o1'UM's
incurnbcnt Plcsiclcnt
Dr. Enrily
D. Dc Lcon
antl Policar?io
M.
Ltcsa, antl UM's
Cor'ltolntc
Sccrctary
Atty. Diosdado
G. Madlirl's Ccrtitication,
attachctl
as Atrttcxcs
to UM's
Cotnplaint,
Annex
"B"
'lrcrco1.
43
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ELECTRICAL
CONNECTIONS
WERE
TAPPED
FROM
UM'S
BPTI
TO
RESPONDENT'S
CTLL
BUILDING
IN
2OO7
UNTIL
RESPONDENT
WAS
REMOVED
AS
SUCH
ON
15
JUNE
2O11.
3)
FAR
FROM
BErNG
*OPENLY"
AS
THE
COURT
oF
APPEALS',
[FOURTH
DTVTSTON
DIVTSTON
OF
FIVEI
MAJORITY
HAD
SPECIOUSLY
CHARACTERIZED
RESPONDENT'S
TAKING,
THE
PICTURES
OF
THE
SUBJECT
ILLEGAL
WATER
AND
ELECTRIC
CONNECTIONS
WOULD
SHOW
THAT
THE SAME
WERE
CONSPICUOUSLY
HIDDEN
FROM
THE
PUBLIC,
INCLUDING
BPTI'S
EMPLOYEES,
TO
AVOID
DETECTION.T3
Apart
from
being
PRoCEDURALLY
INAPPROPRIATE,
the
Court
of
Appeals'
IFormer
Fourth
Division
Division
of
Fivel
majority's
factual
findings
even
ahead
of
trial
that
the
UM
Board
of
Trustees
had
impliedly
agreed
or
acquiesced
to
respondent's
subject
taking,
is
BELIED
BY
THE
RECORDS.
3.
CONTRARY
TO
THE
COURT
OF
APPEALS'
IFORMER
FOURTH
DTVISION
-
DIVISION
OF
FIVEI
MAJORITY'S
SPECIOUS
TH
EORY,
RES
PON
DENT'S
ALLEGATIONS
ON
DR.
VIRGILIO'S
ALLEGED
CONSENT
AND
THE
UM
BOARD'S
IMPLIED
ACQUIESCENCE
ARE
HIGHLY
DISPUTED
FACTUAL
MATTERS
THAT CAN
O
N LY
BE
VENTILATED
AND
RESOLVED
I N A
FU
LL BLOWN
TRIAL
BEFORE
THE
TRIAL
COURT.
A
FORTIORI,
contrary
to the
Court
of
Appeals'
[Former
Fourth
Division
Division
of
Fivel
majority's
sweeping
conclusion,
the
alleged
consent
of
Dr.
Virgilio
to
respondent's
taking and
the
correlative
UM
Board
of
Trustees'
purported
implied
acquiescence
therefor,
are
highly
disputed
factual
matters
that
can
only
be
ventilated
and
resolved
in a full blown
trial
before
the
7r
l'lcasc
scc
Ar.rncxcs
"5","5-A"
and
",5-8",
UM's
DO.l Cottrnrcttt, Atrncx
".1"
hcrcofl
44
7/23/2019 GR No.220685 Petition for Review Rule 45
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trial
court.
DefinitelY,
the
Court
of
l\ppeals
I
Former
Fourth
Division
Division
of
Fivel
cannot
put
finis
to
such
controversial
factual
issues
on
a
mere
petition
for
certiorari,It
is
contrary
to
the
existing
procedural
rules
and
settled jurisPrudence'
Rightly
so,
in
its
order
dated
07
December
20 2,
the
RTC-Baguio
City,
Branch
60
had
concluded:
"xxx There
are
two
kinds
of
determination
of
Probable
cause;
executive
and
judicial.
In
the
case
at
bar,
probable
cause
against
the
accused
has
alreadY
been
determined
under
both
instances.
The
contentions
of
the
accused
in
his
Present
motion
are
evidentiary
in
nature'
The
same
are
better
aPpreciated
in
a
full-
blown
trial
or
in
a
more
appropriate
motion.
The
Presence
or
absence
of
the
elements
of
the
crime
is
evidentiary
in
nature
and
is
matter
of
defense
that
may be
Passed
uPon
on
a
full-blown
trial
on
the
merits
."'o
(Emphasis
in bold
supplied)
Also,
in
its
Decision
dated
30
July
20L3,
the
Court
of
Appeals
[special
Tenth
Division]
had
correctly
ruled:
"xxx
With
Ernesto's
admission,
the
Court
agrees
that
it is
probable that
the
crime
of
qualified
theft
has
been
committed
and
that
Ernesto
is
probably
guilty
thereof.
To
reiterate,
We
are
not
here
concerned
with
the
finding
as
to
whether
all
the
elements
of
q
ua
lified
theft
have
been
sufficiently
proven
to
warrant
a
conviction,
because
to
require
the
same
would
alreadY
be
beYond
the
scope
of
the
prosecutor
and
the
trial
court's
task
of
determining
probable
cause,
as
these
are
matters
which
7'l
At
1r.
2, Anncx
"Q"
hcrcof'.
45
7/23/2019 GR No.220685 Petition for Review Rule 45
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are
properly
addressed
blown
trial.Ts
inafull
XXX
XXX
(Emphasis
in
bold
suPPlied)
XXX,,
4. AS
A
MATTER
OF
PROBABLE
CAUSE,
AS
BETWEEN
RESPON
DENT'S
DEFENSIVE
CLAIM
VERSUS
UM'S
CONTRA,
THE
TRIAL
COURTS'
FINDING
OF
PROBABLE
CAUSE
MUST
PREVAIL.
Settled
is
the
rule
that
in
determining
the
existence
of
probable cause,
certainty
of
guilt
is
not
required
'
It
is
sufficient
that
the
pieces
of
evidence
as
presented
would
excite
a
reasonable
belief
that
the
crime
charged
is
committed
and
that
the
respondent
is
probably
guilty
thereof.
In
Metropolitan
Bank
&
Trust
Company
vs.
Gonzal@s'6,
this
Honorable
Court
thus
ruled:
"x x x
Probable
cause
is
a
reasonable
ground
of
presumption that
a
matter
is,
or
may
b€,
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
believe,
or
entertain
an
honest
or
strong
suspicion,
that
a
thing
is
so.
The term
does
not
mean
"actual
or
positive
cause"
nor does
it
imPort
absolute
certainty.
It
is
merely
based
on
opinion
and
reasonable
belief.
Thus,
a
finding
of
probable
cause
does
not
require
an
inquiry
whether
there
is
sufficient
evidence
to
Procure
conviction.
It
is
enough
that
it
is
believed
that
the
act
or
omission
complained
of constitutes
the offense
charged,"
(Emphasis
in
bold
supplied)
As a
matter
of
probable
cause,
as
between
respondent's
defensive
claim
versus
UM's
contra,
the
RTC
-
TsAt
1-,.
I
l,
Anncx
"V"
hercof.
7t'G.R.
No.
ltlOl(r-5. 07 April
2009; 584
SCRA
(r3
l,
(r40-(r4l
citing
Pilupil vs.
Sundigonbnvrrr,
G.R.
No.
l0l97ti' 07
April
1993;221
SCRA 149,360.
46
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Baguio
City,
Branch
7 and
60's
finding
of
probable cause
m ust
preva
il
.
As
eloquently
pointed
out
by
CA
Justice
Marlene
Gonzales-Sison
in
her
dissenting
opinion
to
the
assailed
Amended
Petition:
*I
must
emPhasize
that
PETITIONER
ACTUALLY
ADMITTED
THAT
WHILE
SERVING
AS
AN
OFFICER
OF
U.M.
AND
MANAGER
AND
OPERATOR
OF
BPTI,
HE
CAUSED
THE
TAPPING
OF
BPTI'S
WATER
AND
ELECTRICITY
TO
BE
USED
IN
THE CONSTRUCTION
OF
HIS
BUILDING.
HE
I\LSO
ADMITTED
THAT
THIS
WAS
WITHOUT
ANY
AUTHORIZATION
FROM
U.M.,S
BOARD
OF
TRUSTEES.
In
my
opinion,
SUCH
ADMISSION
MUST
LEAD
TO
THE
CONCLUSION
THAT
PETITIONER
PROBABLY
COMMITTED
QUALIFIED
THEFT.
THE
ACTS
DETAILED
IN THE
ADMISSION
COMPLETES
ALL
THE
ELEMENTS
OF
QUALIFIED
THEFT,
AND
SUPPORTS
THE ALLEGATIONS
OF
THE
PRIVATE
RESPON
DENT.
"
Petitioner's
admission
admits
the
following:
first, there
is a
taking
of
personal property,
that
is
electricity
and
waterl second,
that
said
personal
property
belonging
to
another,
U.M.:
third,
petitioner
tapped
into those
resources
with
intent
to
gain,
i.e.,
allow
him
to
avoid
incurring
costs
for
such
water
a
nd electricity,
wh
i le usi
ng the
same;
fourth, that
there
was no
consent
by
the
owner,
in this
case,
private
respondent U.M.
acting
through
its board of trustees,
to
the
taking;
fifth, that
petitioner
accomplished
the deed
without
resort to
violence
or
force
upon
47
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th
i ngs,
beca
use
a
lleged
IY,
h
is
tapping
was
with
the
Permission
of
his
late
father;
and
sixth,
that
there
was
grave
abuse
of
discretion,
since,
during
the time that
he
utilized
BPTI's
water
and
electricity,
he
was
occuPYing
executive
positions
in the
dePrived
owner-
corporation,
[J.M..
Petitioner
qualifies his
admission
by
his
defense
that
his
late
father
permitted
him
to
taP
into
BPTL
He
presents
witnesses
which
may
corroborate
the
grant
of
authority.
HOWEVER,
AT
THIS
STAGE
OF
THE
PROCEEDTNGS,
rr
MUST
BE
RECALLED,
rS
oNLY
CONCERNED
WITH
THE
DETERMINATION
OF
PROBABLE
CAUSE.
IT
HAS
ALREADY
BEEN
HELD
THAT
DURING
THIS
STATE,
IT
IS
INAPPROPRIATE
TO
RULE
ON
THE
CREDIBILITY
OF
STATEMENTS
COMING
FROM
THE
ACCUSED
AND
HIS
WITNESSES,
WHICH
APPROPRIATELY
LIES
WITHIN
THE
PROVINCE
OF
TRIAL
PROPER.
MOREOEVER,
EVEN
IF
THESE
WITNESSES
ARE
CREDIBLE,
TH
E
HYPOTH
ETICAL
TRUTH
OF
THEIR
STATEMENTS
WOULD
STILL
NOT
CHANGE
THE
FACT
THI\T
U.M.,
AS
A
CORPORATE
ENTITY/
NEVER
CONSENTED
TO
ALLOW
PETITIONER
TO
TAP
INTO
BPTI'S
RESOURCES.
IT
IS
BASIS
THAT
A
CORPORATION
HAS
A
PERSONALITY
SEPARATE
AND
DISTINCT
FROM
ITS
OFFICERS
AND
STOCKHOLDERS.
Petitioner
buttresses
his
defense
by
alleging
that
private
respondent U.M.
is
actually
a
closely-held
corporation
run
by
his
family,
such
that
it
can
be
bound
by
the actions
of
his
later,
which
is
considered
the
head
of
the
familY.
Petitioner
likewise
laments
that
the
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prosecution never
even
reviewed
the
records
of
private
resPondent,
its
history, and
its unusual
arrangement
to
remove any
doubt
that
it
was
a close
corporation.
Again,
with due
resPect
to
the
majority,
I find
THAT
THESE
DEFENSES
CANNOT
BE
VALIDATED
AT
THrS STATE.
ONCE
MORE,
THEY
ARE
ALREADY
EVIDENTIARY
IN
NATURE;
SUCH
STATEMENTS
REQUIRE
THE
PRESENTATION
OF
WITNESSES
WHO
MAY
TESTIFY
ON
HOW U.M.
OPERATES,
AND
REQUIRE
AS
WELL
THE
ASSESSMENT
OF
DOCUMENTARY
EVIDENCE
ON
ITS
NATURE
AS
A CORPORATION.
EVIDENTIARY
MATTERS
MUST
BE
PRESENTED
AND
HEARD
DURING
TRIAL.
THE
ESSENTIAL
DIFFERENCE
OF
PROCEEDINGS
TO
DETERMINE
PROBABLE
CAUSE
AND
TRIAL
PROPER,
TO MY
MIND,
SHOULD
ALSO
BAR
US
FROM
DETERMINING
BASED
ON
EVIDENCE
THAT
PETITIONER
HAD
NO
INTENT
TO
STEAL
(GIVEN
HIS
FATHER'S
PERMTSSTON)
AND
THI\T
HrS
FATHER
WAS
EXTRAORDINARY
GENEROUS
TO HIS
CHILDREN.
UNFORTUNATELY,
THESE
DEFENSES
REST ON
A
CONSIDERATION
OF
FACTUAL
MI\TTERS
AND
THE
TESTIMONIES
OF
WITNESSES,
WHICH
AGAIN ARE ALL
PROPER
FOR
TRIAL.
n77
TEmphasis
in capital and
bold
supplied)
This was
amply
supported by CA
Justice Manuel
M.
Barrios in his separate dissenting opinion
to the assailed
Amended
Decision
elucidating:
7'At
1r1r.
9-
l
l, CA
.lustioc Conzalcs-Sison's Disscrrtirrg Opinion. Anrrcx
"A"
hclcol
49
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*It
is
my
view
that
respondent
judge
did
not
act
arbitrarily
in
finding
the
existence
of
probable
cause
since
it
is
conceded
fact
that
petitioner
-
while
an officer
of
U.M.
and manager/operator
of BPTI
tapped
and
utilized
BpTI's
water
and
electricity
for the
construction
of his
own
building
and that
he
admittedly gained
material
benefit
therefrom.
Indubitably,
the
elements
of
Qualified
Theft
can
be
deduced
from
these
admitted
facts,
and certainly,
to
find
the
existence
of
probable
based
thereon cannot
be
considered
abuse of
discretiofl,
ffiuch
less,
grave.
THE
DEFENSE
OF PETITIONER
THAT
HE
ACTED
WITH
THE
CONFORMITY
OF
HIS
LATE
FATHER
WHO
WAS
THEN
MAJORITY
SHAREHOLDER
OF
COMPLAINANT
CORPORATION
IS
A
DISPUTED
FACT,
AND
RESPONDENT
JUDGE
WOULD
NOT
YET
BE
IN
A
POSITION
TO
CONSIDER
THE
SAM
E,"78
(Emphasis
in
capital
and
bold
supplied)
RE:
THE
COURT
OF
APPEALS'
IFoRMER
FOURTH
DTVTSTON
DIVISION
OF
FIVE]
MAJORTTY'S
CONCLUSIONS
ON
IMPLIED
AUTHORITY,
BONA
FIDE
BELIEF
OR
GOOD
FATTH,
l\ND
THE
ABSENCE
OF
THE
ELEMENT
OF INTENT
TO
GAIN
THAT
WERE
USED
TO
OVERTURN
THE
TRIAL
COURTS'
FINDING
OF
PROBABLE
CAUSE,
ARE
INAPPROPRIATE
IN
THE
CERTTORART
PETITION.
THE
COURT
OF
APPEALS'IFORMER
FOURTH
DIVISION
_
DIVISION
OF
FIVE]
'
Disscntiug
Opinion,
Anncx
"A"
hcrcol.
50
78
At
p.
2,
CA.lusticc
Barrios
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MAJORITY'S
EXCULPATING
CONCLUSIONS
SOLELY
UPHOLDING
RESPONDENT'S
DEFENSES
OF
DR'
VIRGILIO'S
PURPORTED
CONSENT
TO
THE
TAKING,
BONA
FIDE
BELIEF
OR
GOOD
FAITH,
AND
LACK
OF
INTENT
TO
GAIN,
ARE
HIGHLY
INAPPROPRIATE
IN
A
CERTIORARI
CONSIDERING
THAT:
PETITION,
In
the
first
assailed
Amended
Decision,
the
Court
of
Appeals'
IFourth
Division
-
Division
of
Five]
majority
further
opined:
t'The
third
element,
i.e.,
that
the
said
taking
be
done
with
intenf
to
gain
is
likewise
absent
in
this
case.
Even
assuming
arguendo
that
Virgilio
was
not
dulY
authorized
bY
the
Board
of
Trustees
of
UM
to
give
its
consent
to
the
petitioner and
the
latter
erred
when
he
solely
relied
on
his
father's
consent
without further
securing
the
authority
from
the
real
owner
of
the
electricity
and
water
suPP|Y
will
not
make
him
culpable
of
the
crime
of
qualified theft
because
he
was
acting
with
a
color
of
authority
or
a
semblance
of
right
to
do
such
act."7e
The
Court
of
Appeals'
[Former
Fourth-Division
of Five]
majority
repeated
in
the
second
assailed Resolution
dated
28
August
2015
the
foregoing
erroneous
thesis,
saying:
"For
a
charge
of
crime
to
ProsPer,
the
accused
must
have
been
shown
to
have
acted
with a
genuine
criminal
intent.
If he
was
acting
under
a
bona
fide
belief
that
he
has
a
claim
or
title
to
the
thing
allegedly
stolen,
the
criminal
intent
is missing.
Petitioner's
claim
of
right
on
the
basis
of
the
permission
given
by
his
7"
At
p.
10,
Anncx
"A"
hcrcol'.
5t
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father
negates
criminal
intent
on
his
part.
He
openly
used
BPTI's
electricity
and
water
supply
under
the
bona
fide
belief
that
he
was
allowed
and
authorized
bY
his
father
to
use
the
same,
His
father
owned
majority
of
the
shares
of
stocks
of
UM
and
was
at
that
time
its
President
and
Chairman
of
the
Board.
He
practically
controlled
and
ran
the
business
affairs
of
the
university'
As
explained
above,
the
Board
of
Trustees
had
given
Virgilio
an
apparent
authority
to
do
so
as
shown
bY
the
fact
that
it
allowed
Virgilio
to
treat the
finances of
UM
as
if
theY
were
his
own
Personal
property.
It
did
not
revoke
this
authority
while
Virgilio
was
still
alive
or
even
immediately
thereafter.
The
allegation
therefore
that
Petitioner
had
the
intention
to deprive
UM
of
its
personal
property
is
negated
by
the
fact
that
he
relied
in
good
faith
on
his
father's
authority
to
use
BPTI's
electricity
and
water
suPPlY".Bo
WE
BEG
TO
DISAGREE.
The
court
of
Appeals'
IFormer
Fourth
Division
Division
of
Fivel
majority's
exculpating
conclusions
solely
upholding
responden['s
defenses
of
Dr.
Virgilio's
purported
consent
[o the
taking,
bona
fide
belief
or
good
faith,
and
lack
of
intent
to
gain
are
inappropriate
in a
certiorari
petition,
considering
that:
5.
THE
OFFICE
OF
CERTIORARI
IS
MERELY
TO
DETERMINE
WHETHER
OR
NOT
THE
TRIAL
COURT,S
FINDING
OF
PROBABLE
CAUSE
HAS
FACTUAL
AND
LEGAL
BASES.
IT
IS
NOT
WHETHER
RESPONDENT'S
CLAIM
VERSUS
THAT
OF
UM
IS
CORRECT,
t"
At
pp.
7-8,
Arrncx
"A-1"
hercol.
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WHICH
CAN
ONLY
BE
RESOLVED
BY
THE
TRIAL
COURT
IN
A
FULL
BLOWN
TRIAL.
It
is
well
settled
that
the
office
of
certiorari
is
merely
to
determine
whether
the
court,
body
or
tribunal
has
gravely
abused
its
discretion,
amounting
to
lack
or
in
excess
of
jurisdiction,
in
issuing
its
assailed
order
or
resolution'
Aotlv,
in
Brito
vs,
Office
of the
Deputy
ombudsman
for
tiiiiur,
this
Honorable
Court
had
categorically
ruled:
"In
cert
iorari
proceedings
under
Rule
65
of
the
Rules
of
Court,
the
inquirY
is
limited
essentiallY
to
wlrether
or
not
the
Public
respondent
acted
without
or
in
excess
of
its
jurisdiction
or
with
grave abuse
of
discretion'
A
tribunal,
board
or
officer
acts
without jurisdiction
if
it/
he
does
not
have
the
legal
Power
to
determine
the
case.
There
is
excess
of
jurisdiction
where,
being
clothed
with
the
Power
to
determine
the
case,
the
tribunal,
board
or
officer
overstePs
its/his
authoritY
as
determined
bY
law.
And
there
is
grave abuse
of
discretion
where
the
iribunal,
board
or
officer
acts
in
a
capricious,
whimsical,
arbitrary
or
desPotic
manner
in
the
exercise
of
his
judgment
as
to
be
said
to
be
equivalent
to
lack
of
jurisdiction"'
(EmPhasis
in
bold
suPPlied)
In
the
Same
vein,
in
Chan
vS,
Cottrt
of
Appeatsu',
this
Honorable
Court
had
amply
elucidated:
"x
x
x
in an
action
for
certiorari,
the
primordial
task
of
the
Court
is
to
ascertain
whether
the
lower
court
as
a
8'
G.R.
No.
113512.10
July
2007;
527
scRA
224,229.
*t
G.R.
No.
15s922.28
Apri12016;451
scRA
502,515-516.
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quasi-iudicial
body
acted
with
grave
abuse
of
discretion
amounting
to
excess
or
lack
of
jurisdiction
in
the
exercise
of
its
judgment,
such
that
the
act was done in
a
caPricious'
whimsical,
arbitrarY or
desPotic
manner.
In
a
petition
for
certiorari'
the
jurisdiction
oi
the
appellate
court
is
narrow
in
scoPe'
It
is
limited
to
resolvingonlyerrorsofjurisdiction.It
isnottostrayatwillandresolvequestions
or
issues
beyond
its
competence,
such
as
an
error
of
judgment
which
is
defined
as
oneinwhichthecourtorquasi-judicial
body may
commit
in
the
exercise
of
its
jurisdiction.Anerrorofjurisdictionisone
wheretheactscomplainedofWereissued
withoutorinexcessofjurisdiction.Thereis
excessofjurisdictionwherethecourtor
quasi-judicial
body,
being
clothed
with
the
po*eito
determine
the
case,
oversteps
its
authority
as
declared
by
Iaw"'
(Emphasis
in
bold
suPPlied)
Thus,
the
crux
of
respondent's
CA
certiorari petition
was
merely
to
determine
whether
or
not
the
RTC
-
Baguio
City,
Branch
7
and
60
gravely
abused
their
discretion
in
finding
probable
cause
against
accused-respondent
for
Qualified
Theft.
NOTHING
MORE
NOTHING
LESS.
It behooves
aR
inquiry
only
as
to
the
sufficiency
of
the
factual
and
legal
bases
of
the
trial
courts'finding
of
probable
cause.
clearly,
it
was
beyond
the
ambit
of
respondent's
cA
certiorari
petition to
determine
whether
his
claim
versus
that
of
UM
is
correct,
as
to
call
the
application
of
weight
of
evidence
and
credibility
of
witness.
If at
all,
this
matter
can
only
be
addressed
by
the
trial
court
in
a
full
blown
trial'
6.
WITHOUT
ANY
ABUSE,
ALONE
GRAVE,
THE
COURTS'
FINDING
PROBABLE
CAUSE
IS
GROUNDED
UPON
FOLLOWING:
LET
TRIAL
OF
WELL
THE
54
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AS
CONCLUSIVELY
ADMITTED
BY
HIM
IN
HIS
COUNTER.
AFFIDAVIT,
RESPONDENT
HAD
CAUSED
TH
E
TAPPING
OF
AN D
DIVERTED
WATER
AND
ELECTRICITY
FROM
UM'S
BPTI
TO
HIS
CTLL
BUILDING,
RESPONDENT
HAD
TAKEN
WATER
AND
ELECTRICITY
FROM
UM'S
BPTI
WITHOUT
THE
CONSENT
OF
THE
UM
BOARD.
RESPONDENT'S
DEFENSE
THAT
HE
TOOK
WATER
AND
ELECTRICITY
WITH
TH
E
CONSENT
OF
HIS
*DECEASED"
FATHER
DR.
VIRGILIO,
IS
FOREVER
BARRED.
D.
RESPONDENT'S
DEFENSE
OF
LACK
OF
INTENT
TO
STEAL
IS
EVIDENTIARY
IN
CHARACTER
AND
SHOULD
BE
BETTER
VENTILATED
AND
HEARD
IN
A
FULL
BLOWN
TRIAL.
In
order
that
a
person
may
be
held
liable
for
Qualified
Theft,
the
following
elements
must
concur:
a.
There
must
be
a
taking
of
personal
property;
b.
That
the
said
property
belongs
to
another;
c.
That
the
taking
be
done
with
intent
to
gain;
d.
That
it be
done
without
the
owner's
consent;
e.
That
it
be
accomplished
without
the
use
of
violence
or
intimidation
against persons,
nor
of
force
upon
things;
and
o?
f.
That
it be
done
with
grave
abuse
of
confidence.*'
83
Pcople
vs.
I'uig, G.R.
Nos.
173(t54-765.28
Augtrst
2008;
561
SCRA
564'
lt70'
55
A.
B.
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HERE,
the
above
elements
of
Qualified
Theft
are
all
present:
As
to
the
first
requisite,
with
respect
to
u.u
element
of
.,ta@of
tacsa
emphatically
affirmed
and
confirmed
that
respondent
instructed
him
sometime
in
July
2OO7
to
use
the
electric
current
of
BPTI
for
the
bail
cutter,
bender,
and
for
welding
because
at
that
time
respondent
was
constructing
his
GTTL
Building.
Lacsa
also
affirmed
and
confirmed
that
-*t.,"n
the
first
floor
of
CTTL
building
was
finished,
,"rpondent
ordered
him
to
make
an
electrical
connection
coming
from
BPTI
going
to
the
basement
.of
cTI
Building
which
[u
obeyed;
-
after
making
the
electrical
connection,
the
place
of
work was
transferred
to
the
basement
of
the
bfff-
building
and
there
the
ball
cutting,
bending
and
welding
using
the
electric
current
from
BPTI
was
do-ne;
he
p"ttoially
knew
this
because
he
(Lacsa)
also
worked
there
for
respondent
as
operator
of
the
ball
cutter,
bender
and
welder
for
some
time.
Furthermore,
Lacsa,
the
eyewitness
to
the
unlawful
taking
done
by
respondent
also affirmed
and
confirmed
in
his
,irorn
affidavit
that
respondent
also
instructed
him
to
connect
the
water
supply
of
CTTL
Building
to
the
water
installation
of
BprI
sometime
in
February
2009
purposely
to
make
supply
of
water
to
the
second
floor
of
GTLL
Building
*t.'i.t,,
respondent
then
intended
to
open
for
would-be
tourists
or
checkers
on
14
February
2009
(valentine's
Day);
when
Lacsa
left
the
employ
of
respondent
in
July
2009,
such
water
connection
was
still
in
operational
and
existing;
when
he
(Lacsa) was
instructed by Dr.
De
Leon, President
of
U'M',
to
check
the
water
connection
sometime
in
June
20LL,
he
still
saw
and
found
out
that
the
water
connection
is
still
there,
however,
the
electric
connection
was
already
cut,
but
nonetheless
the
electric
wire
which
was
then
used
to
connect
the
electric
current
with
BPTI
is
still
there.
Realizing
that
he
cannot
effectively
rebut
the
statements
of
Lacsa,
respondent
even
conclusively
admitted
in
his
counter-Affidavit
that
he
actually
took
electric
current
and
water
from
BPTI
and
used
it
in
the
construction
of
his
CTTL
Building.
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ClearlY,
the
foregoing
admission
more
than
sufficientlY
the
element
of
"unlawful
taking"'
evidence
and
established
the
conclusive
existence
of
affidavit
that
the
electric
current
and
water
were
taken
from
BPTI
which
in
turn
is
owned
by
UM.
This
was
duly
admitted
by
respondent
in
his
counter-Affidavit.
so,
there
is
also
more
than
sufficient
basis
of
the
existence
of
probable
cause
on
this
score.
,
with
resPect
to
the
element
that
\he
dt
ing
be
donu
with
intent
to
gain",
petitioner
benefited
from
the
electric
current
and
water
as
he
used
them
in
constructing
his
GTLL
Building'
This
is
affirmed
and
confirmed
likewise
nv
Lacsa
in
his
sworn
affidavit
and
duly
admitted
by
respondent
in
his
counter-Affidavit.
By
"gain"
is
meant
not
only
the
acquisition
of
a
thing
useful
to
the
putposes
of
life
but
also
the
benefit
which
in
any
other
sense
*rv
be
derived
or
expected
from
the
act
which
is
performed.sa
with
resPect
to
the
element
tnat
ff,e
saio
"personal
property
be.longs
to
another",
witness
Lacsa
affirmed
and
confirmed
in
his
Sworn
,
with
resPect
to
the
etement
"without
the
owner's
consent",
the
sworn
affidavit
of
Dr.
De
Leon
attested
to
the
fact
that
the
Board
of
Trustees,
which
is
the
corporate
governing
body
of
uM
pursuant
to Sec.
23
of
the
Corporation
Code,
did
not
consent
and
in
fact
does
not
know
the
said
illegal
connections
and
so
said
installations
were
not
legal
up
to
the time they
were
disconnected.
Furthermore,
the
Certification
of
Atty'
Diosdado
G.
Madrid,
a
member
of
the
Board
of
Trustees
and
corporate
secretary
of
the
UM,
attested
to
the
fact
that
since
11
August
2006
to
date,
records
of
the
meetings
of the
UM
Board
has
shown
no
passage of
any
resolution
authorizing
respondent,
or
CTLL
Building
Dely's
Inn,
to
connect
the
water
and
electrical
connections
of
the
BPTI
to
respondent's
CTLL
Building.
As to
the
fifth
requisite,
with
respect
that
*it
be
accomplished
without
the
use
to
of
the
element
violence
or
s4
Arrtonio
Grcgorio,
Furrdanrcntals
olCriminal
Law
Rcvicw,
1997
Ed.,
p.
759,
citing
Pcoplc
v.r.
Ferntrnrlez.33
O'G
9Ii5.
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intimidation
against
persons,
nor
force
upon
thing.s",
the
documentary
#O
testimonial
evidence
presented
in
the
case
negated
the
use
of
violence
of
intimidation
against
persons
nor
force
upon
things
in
the
taking
of
the
electric
current
a
nd water.
ite,
with
resPect
to
the
element
that
-ffiffine
with
gtur";b-*te
of
confidence",
respondent
had
duly
admitted
in
tris
Complaint
for
Forcible
Entry
with
:Lt^ L-
^
ou
rug"r,
docketed
as
civil
case
No.
13
540
filed
with
the
Municipal
Trial
Court
of
Baguio
City
ut
at
the
trial
of
the
subjecl
incident
he
was
the
General
Manager
and
Operator
of
BPTI
owned
by
UM.
His
admission
is
considered
a
judicial
admission
sin.u
th"
complaint
was
verified
and
filed in
court'
ThefactthatrespondentWaSmanagingBPTI.isalso
bolstered
by
the
Minutes
of
the
Board
of
Trustees'
Regular
Meeting
held
on
15
lune
2011
wherein
it
is
stated
that
the
uM
Board
of
Trustees
passed
a
resolution
removing
iesponOent
from
the
management
and
operation
of
BPTI'
As
to
the
seventh
requisite,
with
respect
to the
damage
susta@ion
of
respondent's unlawful
takin{
with
grave
abuse
of
confidence
of
the
water
and
electricity,
th6
electric
and
water
consumptions
of
the
BPTI
in
2006
and
2011
when
the
illegal
connections
were
not
yet
made
or
were
already
cut
when
compared
vis-ir-vis
the
water
and
electric
consumptions
of
BPTI
from
2007
up
to
2010
would
show
the
actual
loss
incurred
by
the
UM
by
reason
of
said
illegal
and
unauthorized
connections.
From
the
electric
and
water
consumptions
of
BPTI
for
the
period
2OO7
to
2010
should
be
deducted
the
regular
electric
and
water
consumptions
every
year
of
BPTI
and
the
difference
is
the
amount
of
loss
stolen
by
respondent
from
UM
every
year. This
amount
must
be
multiplied
by
the
number
of
years
the
illegal
connections
were
existing,
which
amounted
to
Php3
Million,
more
or
less.
Thus,
in
its
order
dated
01
February
2072,
the
RTC-
Baguio
City,
Branch
7
well
founded
probable
cause
against
respondent
for
Qualified
Theft,
explaining:
"Probable
cause
is
the
existence
of
such
facts
and
circumstances
as
would
excite
the
belief
in
a
reasonable
mind
that
a
crime
has
been
committed
and
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that
the
respondent
is
probably
guilty
thereofandshouldbeheldfortrial.In
the
present
case,
the
Court
agrees
with
and
affirms
the
findings
of
the
investigating
prosecutor,
Assistant
City
Prosecltor
Rolando
T'
Vergara'
that
probable
cause
indeed
exists
for
the
indictment
of
the
accused
for
the
crime
of
qualified
theft
considering
that
he
himself
admitted
that
he
cause
the
tapping
of
and
diverted
electricity
and
*lte.
from
the
Benguet
Pines
Tourist
Inn
(BPTI)
which
is
owned
by
the
University
of
Manila-
(UM) to
the
CTLL
building
which
he
owns
without
the
consent
of
aPProval
of
theBoardofUM.Liketheinvestigating
prosecutor,
the
Court
finds
that
the
defense
relied
uPon
bY
the
accused'
that
is,
that
the
taPPing
anq
diversion
was
with
the
consent
of
his
late
father,
Fr'
Virgilio
D'
Delos
Santos
is
barred
and
Prohibited
under
the
"Dead
Man's
Statute"
under
Section
23,
Rule
13O
of
the
Rules
of
Court.
Dr'
Delos
Santos
could
not
possihly
confirm
the
claim
of
the
self-serving
allegation
of
the
accuse6.z8s
(Emphasis
in
bold
supplied)
on
the
other
hand,
in
its
order
dated
07
December
2012,
the
RTC-Baguio
city,
Branch
60
duly
affirmed
the
above
finding
of
probable
cause,
ratiocinating:
"The
issue
raised
by
the
accused
in
his
Partial
Motion
for
Reconsideration
must
first
be
resolved
considering
that
the
same
involves
the
question
on
whether
or
not
probable
cause
exists
to
indict
him
of
the
crime
charged
in
the
information.
It
must be pointed
out that
the
accused
is
charged
with
the
crime
based
on
the
existence
of
a
probable
cause,
Probable
cause
is
defined
as
a
8s
At
1r.
2,
Atrttcx
"L" hct'ctll'.
59
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reasonable
ground
of
presumption
that
a
matter
is,
or
may
be,
well-founded
in
such
a
state
of
mind
as
would
lead
a
person
of
ordinary
caution
and
prudence
to
believe
or
entertain
an
honest
or
strong
suspicion
that
a
thing
is
so'
It
is
also
defined
as
such
facts
as
are
sufficienttoengenderawell-founded
beliefthatacrimehasbeencommitted
and
that
respondents
are
probably-
guilty thereof.
thete
are
two
kinds
of
determination
of
Probable
cause;
executive
and
judicial' In
the
case
at
bar,
Probable cause
against
the
accused
-
has
alreadY
been
determined
under
both
instances'
The
contentions
of
the
accused
in
his
present
motion
are
evidentiary
in
nature.
The
same
are
better
appreciated
in
a
full-blown
trial
or
in
a
more
aPpropriate
motion'
The
Presence
or
absence
of
the
elementsofthecrimeisevidentiary
in
nature
and
is
matter
of
defense
that
maY
be
Passed
uPon
on
a
full-
L'ia*n
tria|
on
the
merits'86"
(EmPhasis
in
bold
suPPlied)
FROM
THE
FOREGOING,
it
is
daylight
clear
that
the
trial
courts'
finding
or
probable
cause
had
sufficient
and
strong
legal and
factual
bases,
to
wit:
A.AscoNcLUsIVELYADMITTEDBYHIMINHIS
COUNTER.
AFFIDAVITBT,
RESPONDENT
HAD
cAUsEDTHETI\PPINGoFANDDIVERTED
WATERANDELECTRICITYFRoMUM,SBPTI
TO
HIS
CTTL
BUILDING.
B.PERRECORDSTRESPONDENTHADTOOK
WATERANDELECTRICITYFRoMUM,SBPTI
WITHoUTTHEcoNsENToFTHEUMBoARD
OF
TRUSTEESBB.
8t'
At
1rp.
2,
Attncx
"Q"
lrclcof.
*7
Anncx
"C"
hclcol.
B*
pl"u*"
scc
Ccrtillcatiorr
datcrl
07
JLrly
20ll
issucd
try
UM's
corporatc
Scct'ctnt'y
Atty'
Diostlntlo
c Madritl'
[ltached
as
Attncx
to
UM's
Crinrinnl
Conllllaint,
Anttcx
"B"
ltcl'col"
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RESPONDENT'S
DEFENSE
THAT
HE
TOOK
WATER
AND
ELECTRICITY
WITH
THE
coNsENT
OF
HrS
FATHER
DR.
VrRGrLro,
rs
BARRED
AND
PROHIBITED
PER
THE
RATIONALE OF THE
*DEI\D
MAN'S
STATUTE''
RULE.
ALSO,
RESPONDENT',S
DEFENSE
OF
LACK
OF
INTENT
TO
STEAL
IS
EVIDENTIARY
IN
CHARACTER
AND
SHOULD
BE
BETTER
APPRECIATED
IN
A
FULL
BLOWN
TRIAL'
7.
IF
AT
ALL,
THE
HOTLY
CONTESTED FACTUAL
ISSUES
OF
DR.
VIRGILIO'S
CONSENT
TO
THE
TAKING,
GOOD
FAITH
AND
LACK
OF
INTENT
TO
GAIN
ARE
IN
DEED
MATTERS
OF
DEFENSE
THAT
OUGHT
TO
BE
RESOLVED
BY
TH
E
TRIAL
COURT
IN
THE
TRIAL
PROPER.
To reiterate
at
the
expense
of
broken
record,
the
hotly
contested
factual
issues
of
Dr.
Virgilio's consent
to
respondent's
taking,
the
UM
Board
of
Trustees'
implied
acquiescence
thereior,
and
respondent's
bona
fide
belief
or
good
faith
vis-ir-vis
that
he
took
water
and
electricity
with
the
consent
of
the
actual
owner
thereof,
are
truly
matters
of
defense
that
ought
to
be
resolved
by
the
trial
court
at
the
first
instance,
not
by
the
Court
of
Appeals
on
a
mere
certiorari
petition.
Specifically,
respondent's
defense
of
bona
fide
belief
or
good
iaith
does
not
overcome
the
existence
of
probable
iarr"
of
the
crime
of
Qualified
Theft
against
him.
Good
faith
is a
matter
of defense
which
is
best
ventilated
in
a
full
blown
trial
before
the
trial
court.
As
held
by
this
Honorable
Court
in
Andres
vs, Cuevasge:
"Notatu dignum
is
Petitioners'
ventilating
before
this
Court
the
merits
of
their
defenses,
The issue
of
whether
they
acted
in
good
fa
ith
is
best
determined,
however,
during
the
trial
proper.
This
is
not
the
occasion
for
the
full
c.
D.
8'
G.R.
No.
150t169.09
.lunc
200-5;
4(r0
SCRA 38,
,52-53.
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and
exhaustive
display
of
their
evidence'
The
Presence
or
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.
In
fine,
the
validitY
and
merits
of
a
party's
defense
or
accusation,
as
well
as
admissibility
of
testimonies
and
evidence,
are
better
ventilated
during
trial
proper
than
at
the
preliminary
investigation
level".
(Emphasis
in
bold
suPPlied)
In
fact,
in the
cases
of
US
vS.
Manluco,
et
al.eo
and
Gaviola
vs.
Peopleer
which
were
cited
by
the
Court
of
Appeals'
IFourth
Division
Division
of
Five]
majority
in
its
assailed
Amended
Decision,
accused'claim
of
honest
belief
or
good
faith
was
only
weighed
and
ruled
upon
by
the
trial
court
after
a
full
blown
trial.
Evidently,
this
is
not
the
case
here.
III
THE
COURT
OF
APPEALS
ISPECIAL
TENTH
DIVISION]
CORRECTLY
RULED
IN
ITS
RESOLUTION
DATED
30
JULY
2OL3
THAT
RESPONDENT
IS
NOT
ENTITLED
TO
BAIL
AS
A
MATTER
OF
RIGHT
SINCE:
1.
PER
THIS
HONORABLE
COURT'S
RULING
IN
PEOPLE
OF THE
PHILIPPINES
VS,
HU
RUEY CHUN
(G.R.
NO.
158064.
30
JUNE
2005;
462
SCRA
499,510-515)
AND
OTHER
ESTABLISHED
]
U
RISPRU
DENCE,
THE
INSTANT
CRIMINAL
CHARGE
AGAINST
RESPONDENT
FOR
QUALI
FIED
TH
EFT
IN
TH E
""
No.
t
(x)05.
09 Novcmtrcr
I
9
I 4;
2ll
I'}h
il 3(r
I
.
')r
C.R.
Nn.
163927.27
January
20t)6;
4ti0
SCRA
436
62
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AMOUNT
OF
PHP3,OOO,OOO.OO
PER
SE IS A NON-BAILABLE
OFFENSE,
AS THE PENALTY
TH EREFOR
IS
RECLUSION
PERPETUA
PER
ARTICLE
310
IN
RELATION
TO
ARTICLE
309,
REVISED
PENAL
CODE.
ON
THE FACTS,
respondent
was
charged
here
for
having
stolen
water
and
electricity
with
grave
abuse
of
confidence
in
the
amount
of
PhP
3,000,000.00
which,
as
per
Article
310 in
relation
to Article
309,
Revised
Penal
Code is
punishable
by
reclusion
perpetua.
This, since
the
penalty
for
theft
under
Art.
309
reads,
in
part:
"xxx
1.
The
penalty
of
prision
mayor
in its
minimum
and
medium
periods,
if the value
of
the
thing
stolen
is
more
than
|2,OOO
pesos
but
does
not
exceed
22,OOO
pesos;
but
if
the
value
of
the thing
stolen
exceeds
the latter
amount,
the
penalty
shall
be the
maximum
period
of the
one
prescribed
in
this
paragraph,
and
one
year
for
each
additional
ten
thousand
pesos,
but
the
total
of
the
penalty
which
may
be
imposed
shall
not
exceed
twenty
years.
In such
cases,
and
in
connection
with
the
accessory
penalties
which
may
be imposed
and
for
the
purpose
of the
other
provisions
of
this
Code,
the
penalty
shall
be
term
ed
prision
mayor
or reclusion
temporal,
as
the
case
may
be;
x x
x
(Emphasis
in
bold supplied)
Verily,
since
respondent
stands
charged
with
having
unlawfully
took
electricity
and water
in
the
staggering
amount
of PhP3,000,000.00
the
maximum
penalty
prescribed
thereof
under
Article
309 should
first
be applied,
which
is
imprisonment
of
reclusion
temporal
or twenty
(20)
years.
since
respondent
committed
the
same
in
grave
abuse
of
confidence as
UM's
then
General Manager
and
operator
of
its
BPTI,
he falls
under
the
graver
felony
of
eualified
Theft,
which,
under
Article
310,
imposes
a
specific
penarty
two
degrees
higher
than
that
applicable
in
theft.
Accordingly,
under
the
table
of
penalties
in
Article
76,
Revised
penal
63
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code,
the
penalty
of reclusion
perpetua
at
the
very
least
is imposable
on
respondent.
Aptly,
in
People
of
the
Philippines
vs.
Cafialese2,
this
Honorable
Court had
explicitly
held
that the
penalty for
Qualified
Theft
under Article
310
of
the
Revised
Penal
Code,
taking
into
consideration
the value
of
the
property
stolen, is
reclusion
perpefua
with the
accessory
penalty
of death, with
no
possibility
of
pardon
before
the
lapse
of
40
years.
Accordingly,
per
Section
13",
Article III,
L}BT
Philippine
constitution,
respondent
is not entitled
to
bail
as a
matter
of
right
since
he
stand
charged
of
an
offense
with
reclusion
perpetua
as
imposable
penalty.
Respondent
nonetheless
cited in
his
CA
certiorari
petition
the
case
of cenzon
vs.
Abad
Sanfos to
bolster
his
position
that
he
is
entitled
to
bail
as a matter
of right.ea
Cenzon
however
is
inapplicable
and irrelevant
in this case
as
the crime
involved
therein
was large-scale
or
syndicated
estafa
under
P.D.
No.
B1B, NOT
Qualified
Theft.
what
is controlling
then
in this
case
involving
the
crime
of
Qualified
Theft
of
water
and electricity
in the
amount
of
Php3,000,000.00,
is
the
case
of People
of
the
philippines
vs,
Hu
Ruey
Chun.es
There,
this Honorable
Court ruled
that
since
the imposable
penalty
for
the crime
charged
therein
of
QUALIFIED
THEFT
in
the
amount
of
p762,076.35
is
reclusion
perpetua,
the
accused-respondent
was
NOT
entitled
to
bail
as
a
matter of right.
2.
PER
EXISTING
DOJ'S
BAIL
BOND
GUIDE
FOR
QUALIFIED
THEFT,
NO
BAIL
SHALL
BE
RECOM
M EN DED
FOR
TH
E
SU
BJ
ECT
CHARGE
OF
QUALIFIED
THEFT
SINCE
THE
VALU
E
OF
TH
E
PROPERTY
"'G.ll.
No.
l2(r3 19.
l2Ockrbcr
l()9g:297
SCRA(r(r7,676-678.
'B
".Scction
13'
AII
llcrstlns,
excellt
those
chargetl
rvith
oll'enses
punishable
5y reclusiol
l)erl)ctuu
lvhen
evitlence
of
gtlilt
is strollg,
shall,
[rclbrc coltvictiotr,
bc
bailnblc
by
sul'l'icicnt
surctics,
or
bc
rclcascrl
irn
ic"ogsizalce
as
lray lre
Pfovi.tlctl
by
law.
Thc
riglrt to
bail
shall
not
bc
intpairccl
cvcn
whcrr
thc privilcgc
ol tlrc
writ .rf
hntr"u.
cerlus
is
suspcncled.
Ilxcossivc
bail
shall
.ot
bc
'ct1uirctl".
(Emphasis
in bold
supplicil)
"r
I'ttlagt'a1rlt
173,
pp.
4-5-41.l,
rcsporrtlcnt'sPctition
lil'Ccltiorali
tlatccl
l5 Fcbruary
2011,
Anncx
"R"
lrcreof.
'''
G.R.
No.
l-s1t064.
30 .lunc 2005;
462SCRA
498,
5 l0-515.
64
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STOLEN
IS PHP3
MILLION,
MORE
OR
LESS,
Section
L, President's
Memorandum
Order
No. 177
states:
"SECTION
1.
No
bail shall
be
recommended
for the
crime
of
qualified
theft
where the
adequate value
of the
property
stolen
is
five
hundred
thousand
(P500,000.00)
and
above.
"
The
provision
or text
of Memorandum
Order No. L77,
specifically
is
literally
and categorically clear WTTHOUT
ANY
QUALIFICATION
OR CONDITION
that
no
bail
shall
be
recommended
for
qualified
theft
where
the
value
of the
stolen
property
is
PhP500,000.00
and
above. It means
what
it
says
and it
says what
it means
In
consequence,
since
respondent
was
charged
for
Qualified
Theft
of stolen
water
and
electricity
which
aggregate
value
is
in
the
amount
of
PhP3,000,000.00,
he
is
therefore
not entitled
to
bail
as
a
matter of
right.
IN FACT,
in its fairly
recent
Memorandum
Order
No.
63,
series
of 20L3,
the
office
of the
President
revoked
Memorandum
order
No. 777,
series
2005
and reiterates
the
previous
Dol
Circular
No. 29,
series
of
2005 mandating
that
"pursuant
to
the
provisions
of
existing
laws,
no
bail shatt
be
recommended
for
the
offense
of
qualified
theft, whether
consummated,
frustrated
or
attempted,
where
the
value
of
the
property
is
P222,000,00
or
more."
In
any event,
whether
under
Memorandum
Order
No.
L77,
Series
of
2005
or DOJ
Circular
No. 29,
Series
of
2005,
the
subject
charge
of
Qualified
Theft
involving
php3
Million,
more
or
less,
is
clearly
a NON-BAILABLE
OFFENSE.
PRAYER
WHEREFORE,
the
PEOPLE
respectfully
prays
that
this
Petition
be
GrvEN
DUE
couRsE,
and
after
due
proceedings,
the
court
of Appeats'
[Former
Fourth
Division
-
Division
of
Fivel
Amended
Decision
dated
zt
Novem
ber
65
7/23/2019 GR No.220685 Petition for Review Rule 45
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2014
and
Resolution
dated
28
August
2015
in CA
-G.R.
SP
No.
L28625,
be
REVERSED AND
SET
ASIDE, and
in lieu
thereof a
new Decision be
ISSUED
REINSTATING
AND
AFFIRMING IN TOTO
the
Court
of
Appeals'
fspecial
Tenth
Divisionl
Decision
dated
30
July
2013.
Other reliefs
just
and
equitable
are
likewise
prayed
for.
Pasig
City
for the
City of Manila,
12
October
2015.
MADRID
DANAO
& CARULLO
Counsel for Private
Complainant UM
Suite 1609
16/F, Jollibee
Plaza
F.
Ortigas
Jr. Road
(ex-Emerald
Avenue)
Ortigas Center,
Pasig
City
1605
/
P.O. Box
No.
13143
Tel.
Nos.
(02)
63t-7ss\
/
Q2)
706-33Ls
By:
$,
RAINI MADRID
Lifetime
IBP No.
053{3
/
05.'03-05
/
Quezon
City
Pasig
City
CLE
Compliance No.
IV
-
0016867
/
04-15-2073
/
/
1A,,,rar
ALVIN A.
CARULLO
Roll No. 48458
PTR
No.
03Bt}tz
/
Ot-07-15
/
Pasig
City
Lifetime
IBP
No.
03773
/
06-28-04
/
RSM
MCLE
Compliance
No.
IV
-
0016869
/
04-15-2013
/
Pasig
City
Copy
furnished:
COURT
OF
APPEALS
(By
Personal
Service)
Ma.
Orosa
Street
Ermita,
1000
Manila
[CA-G.R,
SP
No.
128625]
OFFICE
OF
THE
SOLICITOR GENERAL
(By
Personal
Service)
(ASG
BERNARD
G,
HERNANDEZ)
No.
134
Amorsolo
Street
Legaspi
Village,
L299 Makati
City
RTC-BAGUIO
CITY,
BRANCH
6O
(By
Registered
Mail)
Hall
of
Justice
Complex
Baguio
City
7/23/2019 GR No.220685 Petition for Review Rule 45
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RTC-BAGUIO
CfTY,
BRANCH 7
(By
Registered
Mail)
Hall of
Justice
Complex
Baguio City
RTC-BAGUIO
CITY,
BRANCH
5
(By
Registered Mail)
Hall
of
Justice Complex
Baguio City
ATTY. FILIBON
FABELA
TACARD ON
(By
Registered
Mail)
TACARDON
AND
PARTNERS
Counsel
for
Respondent
Unit 501,
West
Mansion
Condominium
West
Avenue cor.
Zamboanga
Street
LLO4
Quezon
City,
ERNESTO
L.
DELOS SANTOS
(By
Registere:d
Mail)
Respondent
108 Cenacle Drjve, Senville
Subdivision
Tandang
Sora,
Quezon
City
EXPLAT{ATION
(Re:
$ervice through_Registered Mail)
In
compliance with Section
11,
Rule 13
of
the
1997
Rules
of
Civil
Procedure,
counsel respectfully manifests
that service of the
foregoing
Petition for Review
on
Certiorari
was
done
by
registered mail,
personal
service not
being
practicable
at
the
present
time,
due
to
distance and unusually
heavy
volume
of
pleadings
which
have
to
be
filed
by our office
messengers.
/
Vtr,,rfr-
ALVIN
A.
CARULLO
AAC/jcb/UM 1.3928
67
7/23/2019 GR No.220685 Petition for Review Rule 45
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VERIFICATION
AND
CERTIFICATION
OF NON.FORUM
SHOPPING
I,
DR.
EMrLY
D.
DE
LEON,
of legal
age
and
with
office
address
at
546
M.V.
Delos
santos
street,
sampaloc, Manila,
after
having
been
duly
sworn
to
in
accordance
with
law,
hereby
depose
and
state
that:
1.
I
am
the incumbent
President
of the
University
of
Manila
("UM"),
private
complainant
in
the
above
case.
2,
For
and on
behalf
of the
UM
per
attached
Secretary,s
Certificate
and
with
the
conformity
of
the
Office
of
the
Solicitor
General
("osc"),
I
have
caused
the
preparation
and
filing
of
the
foregoing
Petition
for
Review
on
certiorari
under
Rule
4s
with
the
supreme
Court.
3. I have
read
and
understood
the
contents
thereof
and the
facts
herein
alleged
are true
and correct
of my
own
personal
knowledge
and/or
on
authentic
documents.
4.
To
the
best
of my
knowledge,
no
similar
action
or
proceeding
is
pending
in the
Supreme
court,
the Court
of
Appeals
or
different
divisions
thereof,
or
any
other court,
tribunal,
or
quasi-
judicial
agency,
except
the
originating
criminal
Case
No.
32306-R,
entitled
"People
of
The
Philippines
vs.
Ernesto
Delos
santas",
now
pending before
RTC-Baguio
city,
Branch
5;
and
cA-G.R.
sp
No.
128625,
entitled
"Atty.
Ernesto
L.
Delos
santos
vs.
Regional
Trial
Court
of Baguio
City, Branch
60
And Branch
7,
and
lJniversity
of
Manila
represented
by Dr.
Emily
D. De
Leon",
court
of
Appeals-Manila
IFormer
Fourth
Division-Division
Of
Five].
5.
Should
it come
to
my
knowledge
that
a
similar
action
or
proceeding
has
been
filed
or is
pending
before
the
Supreme
Court,
the
court
of
Appeals,
the
different
divisions
thereof,
or
any
other
court,
tribunal,
or
quasi-judicial
agency,
I
hereby
undertake
to
notify
the
court
or tribunal
taking
cognizance
of the
above-entitled
case
of
such
fact within
five
(5)
days
from
receipt
of such
knowledge.
6.
Iam
Section
5,
Rule
7
executing
this
sworn
statement
in
compliance
with
of
the
7997
Rules
of
Civil
Procedure
DR.
EM
D. DE
Affiant
at
tu
Doc.
No.
(
f(//.
-.
|.
,/l
l
Paoe
No.
A{'
B;;k
N;:.-38
Series
of
2015.
7/23/2019 GR No.220685 Petition for Review Rule 45
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REPUBLIC
OF
THEi PHILIPPINES)
,J
n tr, ,
,,
)Ss'
.
,,
,l,_
/.{
SECRETARY'S
CERTIFICATE
I,
ATTY,
DIOSDADO
G.
MADRID,
of
legal
age,
Filipino
and
with
office
address at
546
M.V.
Delos
Santos Street,
Sampaloc,
Manila
after
having
been first
sworn
in accordance
with law, do hereby
certifyl
1.
I
am
the
duly elected
and
incumbent
Corporate Secretary
of the
University of
Manila
("Corporation"),
a
corporation
duly
organized and
existing
under
Philippine
laws.
2. As
Corporate Secretary, I
am the custodian
of
the
records
of
the
Corporation,
including
the
minutes
of
the
meetings
of its
Board
of
Directors.
3.
That
at a
Regular
Meeting
of the
board of
Trustees
of the
Corporation
held
on
September
76,20L5, at
which meeting
a
quorum
was
present
and
acting
throughout, the following
resolutions were approved, among others:
"RESOLVED,
that
the
Corporation,
with
the
endorsement
of the
OCP-Baguio City/DOJ
and the
conformity of the
Office
of the Solicitor
General,
shall
appeal,
via
Petition
for
Review on
Certiorari under
Rule
45, with
the
Supreme
Court the Court of
Appeals'
IFourth
Division
-
Division
of
Five] Amended
Decision
dated
27
November 2Ol4 and
Resolution dated
28
August 2015
in CA-G.R.
SP No.
128625,
entitled
"Atty.
Ernesto
L.
Delos Santos
vs.
RTC'Baguio
City,
Branch 60
and 7, and
University
of
Manila,
represented
by
Dr.
Emily
D. De Leon".
RESOLVED FURTHER,
as
it is
hereby resolved,
that
Dr. Emily
D. De Leon,
incumbent
President of the
Corporation, be
authorized,
as she
is authorized,
to
sign
for
and
on behalf
of
the Corporation, the
Motion for
Extension
of Time
to
File
Petition
for
Review
on
Certiorari under
Rule
45,
and
the
main Petition
for
Review
on
Certiorari
under
Rule
45
and
any and all
pleadings
in
the
said
case,
and
such
other
papers
or
documents necessary/ incidental and/or
proper
in
respect
thereto."
4.
The foregoing
resolutions
have not
been
altered, modified
or revoked
and
that
the
same are
still
in
full
force and effect.
5. I
am
executing
this
Certificate
for
whatever
legitimate
purpose/s
it
may serve
IN WITNESS
WHEREOF.
I have hereunto
@,",
rriAnliJil.A
,fl?YFftflffi='
Issued
on
June
5,
2009.
Doc.
No.
/6q
l:ffiJI#r
I
ArrY.
DrosDAD{o.
ror*rfl
CorpolqJe
S{cretary
,
sEP23mw
set my
hand
this
AND
SWORN
to
before me this
_
September,
2015
at
,
affiant exhibiting
to me his
Senior Citizen
ID
No. 24757899,
l{t\
I
lrFil
oa,
H?E
7/23/2019 GR No.220685 Petition for Review Rule 45
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eneral
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tlre
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suirjecr
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vi''as
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ur-rclersignecl,s
Division
as
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c'rse
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ancl
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refers
t.
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al_terchecl
I
st
i.clorse,rent
tliltec,l
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?1,
20i5
ol
City
proseci-rlor
lJlmer-
\4anr-rel
Sagsago,
Office
of
Ciil,
prosecutor
o[.Ragr-rio
Cit1,,
relatirze
to
CA_G.lR.
Sp
No.
128ri?ij
entitlecl
Att.1r.
I1rl-resto
I_.
De
l_os
Seintos
\/rr-sr-ts
f.lTC_Bergi_ric
(-1i1.J,,
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G0
zrnci
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l
jnirrer"si[1,
o,
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representecl
b5r
[p.
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lfe
[,eon
Ulie-
have
gone
uver
the
record
of
flre
:,,i:,t:
rl:rxq"t
we
corrctur-w,ith
the
<lpiuion
of
CitSr
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ltaanrue]
sagsago
that
t]re
..'u,ris
,re
rrrougirt
lrefore
the
c"*rI
of
A.ppears
orr
a
petition
for
Certiorari.l
r
ertrplrasis
srr1i1rlicr1.
7/23/2019 GR No.220685 Petition for Review Rule 45
http://slidepdf.com/reader/full/gr-no220685-petition-for-review-rule-45 71/72
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to
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7/23/2019 GR No.220685 Petition for Review Rule 45
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AFFIDAVIT
OF
SERVICE
l, JAIME
M.
TAYAG,
a
paralegal
of
MADRID
DANAO
& CARULLO,
with
office
address
at
Suite
1609,
16/F
Jollibee
Plaza,
F.
Ortigas
Jr. Road
(ex-Emerald
Ave.),
Ortigas
Center,
Pasig
City,
after
having
been
duly sworn
to in
accordance
with
law,
hereby
depose
and
state:
That on
I
served copies
of
the following
Pleading/Paper:
PETITION FOR REVIEW
ON
CERIIORAR/
UNDER RULE 45
ln
G.R.
No. 220685
[CA-G.R.
SP No.
1286251,
entitled
"People
of
the
Philippines
vs.
Atty.
Ernesto
L.
Detos
Sanfos"pursuant
to
Sections
6, 7 and
13 of Rule
13 of
the 1997
Rules,of
Civil Procedure,
as follows:
Bv Personal
Service:
COURT
OF
APPEALS
Ma.
Orosa
Street
Ermita,
1000
Manila
[CA-G.R.
SP
No.
128625]
OFFICE OF THE SOLICITOR GENERAL
(ASG
BERNARD
G. HERNANDEZ)
No.
134
Amorsolo
Street
Legaspi
Village,
1299 Makati
City
Bv
Reqistered
Mail:
RTC.BAGUIO
CITY,
BRANCH
60
Hall
of Justice
Complex
Baguio
City
RTC.BAGUIO
CITY,
BRANCH
7
Hall
of Justice
Complex
Baguio
City
RTC.BAGUIO
CITY, BRANCH
5
Hall
of Justice
Complex
Baguio
City
ATTY.
FILIBON
FABELA
TACARDON
TACARDON
AND
PARTNERS
Counsel
for
Respondent
Unit
501,
West
Mansion
Condominium
West
Avenue
cor.
Zamboanga
Street
1104
Quezon
City.
ERNESTO
L.
DELOS
SANTOS
Respondent
108
Cenacle
Drive,
Senville
Subdivision
Tandang
Sora,
Quezon
City
by
depositing
FIVE
(5)
copies
at
the
Ortigas
Post
Office
of
pasig
City
as evidenced
by
and
Registry
Receipt Nos.
hereto
attached