Questions for Group Reporting Topic: Anti-Fencing Law

1. Elements of Fencing: a. a crime of robbery or theft has been committed;ccused, who is not a principal or accomplice in the crime, buys, receives,ossesses, keeps, acuires, conceals, or disposes, or buys and sells, or in any mannereals in any article, item , object or anything of value, which has been derived fromhe proceeds of said crime; b. the accused knows or should have known that saidrticle, item, object or anything of value has been derived from the from theroceeds of the crime of robbery or theft; c. and there is on the part of the accused,tent to gain for himself or for another.

A crime of robbery or theft has been committed; The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possess, keeps, acquires, conceals, sells, or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime; The accused knows or should have known that the said article, item, or object or anything of value has been derived from the proceeds of the crime of robbery or theft; and 1. There is, on the part of the accused, intent to gain for himself or for

another.(Dizon-Pamintuan vs People, GR 111426, 11 July 94) As regards the first element, the crime of robbery or theft should have been committed before crime of fencing can be committed. The person committing the crime of robbery or theft, may or may not be the same person committing the crime of fencing. As in the case ofD.M. Consunji, Inc., vs. Esguerra, quantities of phelonic plywood were stolen and the Court held that qualified theft had been committed. In People vs. Lucero there was first a snatching incident, where the bag of Mrs. Maripaz Bernard Ramolete was snatch in the public market of Carbon, Cebu City, where she lost a Chinese Gold Necklace and pendant worth some P4,000.00 to snatchers Manuel Elardo and Zacarias Pateras. The snatchers sold the items to Manuel Lucero. Consequently, Lucero was charged with violation of the Anti-Fencing Law. However, in this case, no eyewitness pointed to Lucero as the perpetrator and the evidence of the prosecution was not strong enough to convict him.

The second element speaks of the 2. overt act of keeping, buying, receiving, possessing, acquiring, concealing, selling or disposing or in any manner deals with stolen items. It is thus illustrated in the case of Lim vs. Court of Appeals, where the accused, Juanito Lim stored and kept in his bodega and subsequently bought or disposed of the nine (9) pieces of stolen tires with rims owned by Loui Anton Bond. The accused known or should have known that the goods were stolen. As pointed out in the case of People vs. Adriatico, the court in convicting Norma Adriatico, stated that it was impossible for her to know that the jewelry were stolen because of the fact that Crisilita was willing to part with a considerable number of jewelry at measly sum, and this should have apprised Norma of the possibility that they were stolen goods. The approximate total value of the jewelry were held to be at P20,000.00, and Norma having bought it from Crisilita for only P2,700. The court also considered the fact that Norma engage in the business of buying and selling gold and silver, which business is very well exposed to the practice of fencing. This requires more than ordinary case and caution in dealing with customers. As noted by the trial court: . . . the Court is not inclined to accept the accuseds theory of buying in good faith and disclaimer of ever seeing, much more, buying the other articles. Human experience belies her allegations as no businessman or woman at that, would let go of such opportunities for a clean profit at the expense of innocent owners. The Court in convicting Ernesto Dunlao Sr., noted that the stolen articles composed of farrowing crates and G.I. pipes were found displayed on petitioners shelves inside his compound. (Dunalao, Sr. v. CA, 08/22/96) In the case of People v. Muere (G.R.12902, 10/18/94), the third element was not proven. This case involves the selling of alleged stolen Kenwood Stereo Unit in the store Danvir Trading, owned by the spouses Muere. The store is engaged in buying and selling of second hand merchandise located at Pasay Road, Makati. The said stereo was bought from Wynns Audio, an existing establishment. The court held that there is no proof that the spouses Muere, had knowledge of the fact that the stereo was stolen. The spouses Muere purchased the stereo from a known merchant and the unit is displayed for sale in their store. These actions are not indicative of a conduct of a guilty person. On the same vein, the third element did not exist in the case of D.M. Consunji, Inc.(Consunji v. Esguerra, 07/30/96) where the subject of the court action are the alleged stolen phelonic plywood owned by D.M. Consunji, Inc., later found to be in the premises of MC Industrial Sales and Seato trading Company, owned respectively by Eduardo Ching and the spouses Sy. Respondents presented sales receipts covering their purchase of the items from Paramount

Industrial, which is a known hardware store in Caloocan, thus they had no reason to suspect that the said items were products of theft. The last element is that there is 3. intent to gain for himself or for another. However, intent to gain need not be proven in crimes punishable by a special law such as the Anti-Fencing Law. The crimes punishable by special laws are called acts mala prohibita. The rule on the subject is that in acts mala prohibita, the only inquiry is that, has the law been violated? (in Gatdner v. People, as cited in US v. Go Chico, 14 Phils. 134) When the act is prohibited by law, intent is immaterial. Likewise, dolo or deceit is immaterial in crimes punishable by special statute like the AntiFencing Law. It is the act itself which constitutes the offense and not the motive or intent. Intent to gain is a mental state, the existence if which is demonstrated by the overt acts of the person. The mental state is presumed from the commission of an unlawful act. (Dunlao v. CA) again, intent to gain is a mental state, the existence of which is demonstrated by the overt acts of person, as the keeping of stolen items for subsequent selling.

2. Definition of Fencing Sec. 2 of PD No. 1612 (Anti-Fencing Law) is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows or should be known to him, or to have been derived from the proceeds of the crime of robbery or theft. (Dizon-Pamintuan vs. People, GR 111426, 11 July 94). The law on fencing does not require the accused to have participation in the criminal design to commit or to have been in any wise involved in the commission of the crime of robbery or theft. Neither is the crime of robbery or theft made to depend on an act of fencing in order that it can be consummated. (People v De Guzman, GR 77368). Robbery is the taking of personal property belonging to another, with intent to gain, by means of violence against or intimidation of any person, or using force upon anything. On the other hand, fencing is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or shall be known to him, to have been derived from the proceeds of the crime of robbery or theft.

3. Definition of Fencer includes any a. person, b. firm, c. association corporation or d. partnership or e. other organization who/which commits the act of fencing. "Unlicensed dealer/supplier" shall refer to any persons, partnership, firm, corporation, association or any other entity or establishment not licensed by the government to engage in the business of dealing in or of supplying the articles defined in the preceding paragraph The person liable is the one buying, keeping, concealing and selling the stolen items. If the fence is a corporation, partnership, association or firm, the one liable is the president or the manager or the officer who knows or should have know the fact that the offense was committed.

MERE POSSESSION OF STOLEN ARTICLE PRIMA FACIE EVIDENCE OF FENCING Since Sec. 5 of PD NO. 1612 expressly provides that mere possession of any good, article, item, object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing it follows that the accused is presumed to have knowledge of the fact that the items found in her possession were the proceeds of robbery or theft. The presumption does not offend the presumption of innocence enshrined in the fundamental law.

FENCING AS A CRIME INVOLVING MORAL TURPITUDE. In violation of the Anti-Fencing Law, actual knowledge by the fence of the fact that property received is stolen displays the same degree of malicious deprivation of ones rightful property as that which animated the robbery or theft which by their very nature are crimes of moral turpitude. (Dela Torre v. COMELEC 07/05/96) Moral turpitude can be derived from the third element accused knows or should have known that the items were stolen. Participation of each felon, one being the robber or the thief or the actual perpetrators, and the other as the fence, differs in point in time and degree but both invaded ones peaceful dominion for gain. (Supra) Both crimes negated the principle of each persons duty to his fellowmen not to appropriate things that they do not own or return something acquired by mistake or with malice. This signifies moral turpitude with moral unfitness. In the case of Dela Torre, he was declared disqualified from running the position of Mayor in Cavinti, Laguna in the last May 8, 1995 elections because of the fact of the disqualification under Sec. 40 of the Local Government Code, of persons running for elective position -Sec. 40 Disqualifications (a) Those sentenced by final judgement for an offense involving moral turpitude Dela Torre was disqualified because of his prior conviction of the crime of fencing wherein he admitted all the elements of the crime of fencing.

PROOF OF PURCHASE WHEN GOODS ARE IN POSSESSION OF OFFENDER NOT NECESSARY IN ANTI-FENCING The law does not require proof of purchase of the stolen articles by petitioner, as mere possession thereof is enough to give rise to a presumption of fencing. It was incumbent upon petitioner to overthrow this presumption by sufficient and convincing evidence. (Caoili v. CA; GR 128369, 12/22/97)

4. Essence of Violation PD 1612, Section 2 thereof requires that the offender buys or otherwise acquires and then sells or disposes of any object of value which he knows or should he known to him to have been derived from the proceeds of the crime of robbery or theft. (Caoili v CA; GR 128369, 12/22/97)

The Anti-Fencing Law was made to curtail and put an end to the rampant robbery of government and private properties. With the existence of ready buyers, the business of robbing and stealing have become profitable. Hence, a law was enacted to also punish those who buy stolen properties. For if there are no buyers then the malefactors could not profit from their wrong doings.

5. Is it a Continuing Crime 6. Venue 7. Cases: a. Dizon (234 SCRA 63) b. 227 SCRA 65 c. Francisco 434 SCRA 122

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 111426 July 11, 1994 NORMA DIZON-PAMINTUAN, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. Puno and Puno for petitioner. The Solicitor General for respondent.

DAVIDE, JR., J.: The chief issue presented for our determination in this petition for review under Rule 45 of the Rules of Court is the correctness of the decision of 29 March 1993 of the Court of Appeals in

CA-G.R. CR No. 11024 1 which affirmed the decision of Branch 20 of the Regional Trial Court of Manila in Criminal Case No. 88-64954 2 finding the petitioner guilty of the violation of the AntiFencing Law (P.D. No. 1612) but set aside the penalty imposed and ordered the trial court to receive additional evidence on the "correct valuation" of the pieces of jewelry involved for the sole purpose of determining the penalty to be imposed. The information in Criminal Case No. 88-64954 charged the petitioner with the violation of the Anti-Fencing Law in that on or about and during the period from February 12, to February 24, 1988, inclusive, in the City of Manila, Philippines, the said accused, with intent of gain for herself or for another, did then and there wilfully, unlawfully and knowingly buy and keep in her possession and/or sell or dispose of the following jewelries, to wit: one (1) set of earrings, a ring studded with diamonds in a triangular style, one (1) set of earrings (diamond studded) and one (1) diamond-studded crucifix, or all valued at P105,000.00, which she knew or should have known to have been derived from the proceeds of the crime of robbery committed by Joselito Sacdalan Salinas against the owner Teodoro and Luzviminda Encarnacion. 3 On the basis of the testimonies of prosecution witnesses Teodoro Encarnacion (one of the offended parties), Cpl. Ignacio Jao, Jr., and Pfc. Emmanuel Sanchez, both of the Western Police District, the trial court promulgated on 16 November 1990 its decision, the dispositive portion of which reads: WHEREFORE, the prosecution having proved the guilty of the accused for violation of Presidential Decree No. 1612 beyond reasonable doubt, the accused Norma Dizon-Pamintuan is hereby sentenced to suffer an indeterminate penalty of imprisonment from FOURTEEN (14) YEARS of prision mayor to NINETEEN (19) YEARS of reclusion temporal. No civil liability in view of the recovery of the items, subject-matter of this case. With costs. 4 The evidence of the prosecution is summarized by the trial court as follows: Teodoro Encarnacion, Undersecretary, Department of Public Works and Highways testified that he has just arrived at his residence located at Better Living Subdivision, Paraaque at around 9:45 p.m. of February 12, 1988 coming from the Airport and immediately proceeded inside the house, leaving behind his driver and two housemaids outside to pick-up his personal belongings from his case. It was at this point that five unidentified masked armed persons appeared from the grassy portion of the lot beside the house and poked their guns to his driver and two helpers and dragged them inside his house. That the men pointed a gun at him and was made to lie face down on the floor. The other occupants, namely his wife, the maids and his driver were likewise made to lie on the floor. Thereafter, the robbers ransacked the house and took away jewelries and other personal properties including cash. After the intruders left the house he reported the matter immediately to the police. He was then interviewed by the Paraaque police and was informed that an operation group would be assigned to the case.

He likewise reported the matter to the Western Police District on February 15, 1988. Two days later, a group of WPD operatives came over to his house and he was asked to prepare a list of items of jewelry and other valuables that were lost including a sketch of distinctive items. He was later told that some of the lost items were in Chinatown area as tipped by the informer the police had dispatched. That an entrapment would be made with their participation, on February 14, 1988. As such, they went to Camp Crame at around 9:00 a.m. and arrived at the vicinity of 733 Florentino Torres Street, Sta. Cruz, Manila at about 10:00 a.m.; that he is with his wife posed as a buyer and were able to recognize items of the jewelry stolen displayed at the stall being tended by Norma Dizon Pamintuan; the pieces were: 1 earring and ring studded with diamonds worth P75,000 bought from estimator Nancy Bacud (Exh. "C-2"), 1 set of earring diamond worth P15,000 (Exh. "C-3") and 1 gold chain with crucifix worth P3,000 (Exh. "C-4"). Corporal Ignacio Jao, Jr. of the WPD testified that he was with the spouses Teodoro Encarnacion, Jr. in the morning of February 24, 1988 and they proceeded to Florentino Torres Street, Sta. Cruz, Manila at the stall of Norma Dizon-Pamintuan together with Sgt. Perez. After the spouses Encarnacion recognized the items subject matter of the robbery at the display window of the stall being tended by the herein accused, they invited the latter to the precinct and investigated the same. They likewise brought the said showcase to the WPD station. He further testified that he has no prior knowledge of the stolen jewelries of the private complainant from one store to another. Pfc. Emmanuel Sanchez of the WPD testified that he reported for duty on February 24, 1988; that he was with the group who accompanied the spouses Encarnacion in Sta. Cruz, Manila and was around when the couple saw some of the lost jewelries in the display stall of the accused. He was likewise present during the early part of the investigation of the WPD station. 5 The recovery of the pieces of jewelry, on the basis of which the trial court ruled that no civil liability should be adjudged against the petitioner, took place when, as testified to by Teodoro Encarnacion, the petitioner "admitted that she got the items but she did not know they were stolen [and that] she surrendered the items and gave them to [his] wife." 6 On the other hand, the version of the defense, as testified to by Rosito Dizon-Pamintuan, is summarized by the trial court thus: The defense presented only the testimony of Rosito Dizon-Pamintuan who testified that he is the brother of Norma Dizon-Pamintuan and that sometime around 11:00 a.m. of February 24, 1985, he, together with the accused went infront of the Carinderia along Florentino Torres Street, Sta. Cruz, Manila waiting for a vacancy therein to eat lunch. Suddenly, three persons arrived and he overheard that Cpl. Jao told her sister to get the jewelry from inside the display window but her sister requested to wait for Fredo, the owner of the stall. But ten minutes later when said Fredo did not show up, the police officer opened the display window and got the contents of the same. The display stall was hauled to a passenger jeepney and the same, together with the accused were taken to the

police headquarters. He likewise testified that he accompanied his sister to the station and after investigation was sent home. 7 In convicting the petitioner, the trial court made the following findings: The prosecution was able to prove by evidence that the recovered items were part of the loot and such recovered items belong to the spouses Encarnacion, the herein private complainants. That such items were recovered by the Police Officers from the stall being tended by the accused at that time. Of importance, is that the law provides a disputable presumption of fencing under Section 5 thereof, to wit: Mere possession of any goods, article, item object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing. There is no doubt that the recovered items were found in the possession of the accused and she was not able to rebut the presumption though the evidence for the defense alleged that the stall is owned by one Fredo. A distinction should likewise be made between ownership and possession in relation to the act of fencing. Moreover, as to the value of the jewelries recovered, the prosecution was able to show that the same is Ninety Three Thousand Pesos (P93,000.00). 8 The petitioner then appealed her conviction to the Court of Appeals (CA-G.R. CR No. 11024) where she raised two issues: (1) that the judgment was based on a mere presumption, and (2) that the prosecution failed to show that the value of the jewelry recovered is P93,000.00. In its challenged decision of 29 March 1993, the Court of Appeals disposed of the first issue in this wise: The guilt of accused-appellant was established beyond reasonable doubt. All the elements of the crime of fencing in violation of the Anti-Fencing Law of 1979 (P.D. No. 1612), to wit: 1. A crime of robbery or theft has been committed; 2. A person, not a participant in said crime, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells; or in any manner deals in any article or item, object or anything of value; 3. With personal knowledge, or should be known to said person that said item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; 4. With intent to gain for himself or for another; have been established by positive and convincing evidence of the prosecution . . .

... The fact that a crime of robbery has been committed on February 12, 1988 is established by the testimony of private complainant Teodoro T. Encarnacion who immediately reported the same to Paraaque Police Station of the Southern Police District (TSN, Hearings of October 3, 1988, November 9, 1988 and January 11, 1989; Exh. A) and submitted a list and sketches of the jewelries robbed, among other things, from their residence located at Better Living Subdivision, Paraaque, Metro Manila (Exh. C, C-1 to C-4 and D). The second element is likewise established by convincing evidence. On February 24, 1988, accused-appellant was found selling the jewelries (Exhs. C-2, C-3 and C-4) which was displayed in a showcase in a stall located at Florentino Street, Sta. Cruz, Manila. [Testimonies of Teodoro Encarnacion (id. supra); Cpl. Ignacio Jao (TSN, Hearing of February 13, 1989) and Pfc. Emmanuel Sanchez (TSN, Hearing of June 4, 1989)]. On the element of knowledge that the items are derived from the proceeds of the crime of robbery and of intent to gain for herself or for another, the Anti-Fencing Law provides: Sec. 5. Presumption of Fencing. Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing. Knowledge and intent to gain are proven by the fact that these jewelries were found in possession of appellant and they were displayed for sale in a showcase being tended by her in a stall along Florentino Street, Sta. Cruz, Manila. 9 Nevertheless, the Court of Appeals was of the opinion that there was not enough evidence to prove the value of the pieces of jewelry recovered, which is essential to the imposition of the proper penalty under Section 3 of P.D. No. 1612. It opined that the trial court erred in concluding that "the value of the recovered jewelries is P93,000.00 based on the bare testimony of the private complainant and the selfserving list he submitted (Exhs. C, C-2 and C-4, TSN, Hearing of October 3, 1993)." 10 The dispositive portion of the Court of Appeals' decision reads: WHEREFORE, finding that the trial court did not commit any reversible error, its decision dated October 26, 1990 convincing accused appellant is hereby AFFIRMED with the modification that the penalty imposed is SET ASIDE and the Regional Trial Court (Branch 20) of Manila is ordered to receive evidence with respect to the correct valuation of the properties involved in this case, marked as Exhibits "C", "C-2" and "C-4" for the sole purpose of determining the proper penalty to be meted out against accused under Section 3, P.D. No. 1612. Let the original records be remanded immediately. 11 Hence, this petition wherein the petitioner contends that:

I PUBLIC RESPONDENT COURT OF APPEALS MANIFESTLY ERRED IN AFFIRMING THE DECISION OF PUBLIC RESPONDENT JUDGE CAEBA, IN BLATANT DISREGARD OF APPLICABLE LAW AND WELL-ESTABLISHED JURISPRUDENCE. II PUBLIC RESPONDENT COURT OF APPEALS MANIFESTLY ERRED IN REMANDING THE CASE TO THE COURT A QUO FOR RECEPTION OF EVIDENCE FOR THE PURPOSE OF DETERMINING THE CORRECT PENALTY TO BE IMPOSED. 12 On 23 February 1994, after the public respondents had filed their Comment and the petitioner her Reply to the Comment, this Court gave due course to the petition and required the parties to submit their respective memoranda, which they subsequently complied with. The first assigned error is without merit. Fencing, as defined in Section 2 of P.D. No. 1612 (Anti-Fencing Law), is "the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft." Before P.D. No. 1612, a fence could only be prosecuted for and held liable as an accessory, as the term is defined in Article 19 of the Revised Penal Code. The penalty applicable to an accessory is obviously light under the rules prescribed in Articles 53, 55, and 57 of the Revised Penal Code, subject to the qualification set forth in Article 60 thereof. Nothing, however, the reports from law enforcement agencies that "there is rampant robbery and thievery of government and private properties" and that "such robbery and thievery have become profitable on the part of the lawless elements because of the existence of ready buyers, commonly known as fence, of stolen properties," P.D. No. 1612 was enacted to "impose heavy penalties on persons who profit by the effects of the crimes of robbery and theft." Evidently, the accessory in the crimes of robbery and theft could be prosecuted as such under the Revised Penal Code or under P.D. No. 1612. However, in the latter case, he ceases to be a mere accessory but becomes a principal in the crime of fencing. Elsewise stated, the crimes of robbery and theft, on the one hand, and fencing, on the other, are separate and distinct offenses. 13 The state may thus choose to prosecute him either under the Revised Penal Code or P.D. No. 1612, although the preference for the latter would seem inevitable considering that fencing is a malum prohibitum, and P.D. No. 1612 creates a presumption of fencing 14 and prescribes a higher penalty based on the value of the property. 15 The elements of the crime of fencing are: 1. A crime of robbery or theft has been committed; 2. The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires,

conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime; 3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and 4. There is, on the part of the accused, intent to gain for himself or for another. In the instant case, there is no doubt that the first, second, and fourth elements were duly established. A robbery was committed on 12 February 1988 in the house of the private complainants who afterwards reported the incident to the Paraaque Police, the Western Police District, the NBI, and the CIS, and submitted a list of the lost items and sketches of the jewelry taken from them (Exhibits "C" and "D"). Three of these items stolen, viz., (a) a pair of earrings and ring studded with diamonds worth P75,000.00 (Exhibit "C-2"); (b) one set of earrings worth P15,000.00 (Exhibit "C-3"); and (c) a chain with crucifix worth P3,000.00 (Exhibit "C-4"), were displayed for sale at a stall tended to by the petitioner in Florentino Torres Street, Sta. Cruz, Manila. The public display of the articles for sale clearly manifested an intent to gain on the part of the petitioner. The more crucial issue to be resolved is whether the prosecution proved the existence of the third element: that the accused knew or should have known that the items recovered from her were the proceeds of the crime of robbery or theft. One is deemed to know a particular fact if he has the cognizance, consciousness or awareness thereof, or is aware of the existence of something, or has the acquaintance with facts, or if he has something within the mind's grasp with certitude and clarity. 16 When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence unless he actually believes that it does not exist. 17 On the other hand, the words "should know" denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in performance of his duty to another or would govern his conduct upon assumption that such fact exists. 18 Knowledge refers to a mental state of awareness about a fact. Since the court cannot penetrate the mind of an accused and state with certainty what is contained therein, it must determine such knowledge with care from the overt acts of that person. And given two equally plausible states of cognition or mental awareness, the court should choose the one which sustains the constitutional presumption of innocence. 19 Since Section 5 of P.D. No. 1612 expressly provides that "[m]ere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing," it follows that the petitioner is presumed to have knowledge of the fact that the items found in her possession were the proceeds of robbery or theft. The presumption is reasonable for no other natural or logical inference can arise from the established fact of her possession of the proceeds of the crime of robbery or theft. This presumption does not offend the presumption of innocence enshrined in the fundamental law. 20 In the early case of United States vs. Luling, 21 this Court held:

It has been frequently decided, in case of statutory crimes, that no constitutional provision is violated by a statute providing that proof by the state of some material fact or facts shall constitute prima facieevidence of guilt, and that then the burden is shifted to the defendant for the purpose of showing that such act or acts are innocent and are committed without unlawful intention. (Commonwealth vs. Minor, 88 Ky., 422.) In some of the States, as well as in England, there exist what are known as common law offenses. In the Philippine Islands no act is a crime unless it is made so by statute. The state having the right to declare what acts are criminal, within certain well defined limitations, has a right to specify what act or acts shall constitute a crime, as well as what proof shall constitute prima facie evidence of guilt, and then to put upon the defendant the burden of showing that such act or acts are innocent and are not committed with any criminal intent or intention. In his book on constitutional law, 22 Mr. Justice Isagani A. Cruz said: Nevertheless, the constitutional presumption of innocence may be overcome by contrary presumptions based on the experience of human conduct [People vs. Labara, April 20, 1954]. Unexplained flight, for example, may lead to an inference of guilt, as 'the wicked flee when no man pursueth, but the righteous is as bold as a lion. Failure on the part of the accused to explain his possession of stolen property may give rise to the reasonable presumption that it was he himself who had stolen it [U.S. vs. Espia, 16 Phil. 506]. Under our Revised Penal Code, the inability of an accountable officer to produce funds or property entrusted to him will be considered prima facieevidence that he has appropriated them to his personal use [Art. 217]. According to Cooley, the constitutional presumption will not apply as long as there is "some rational connection between the fact proved and the ultimate fact presumed, and the inference of one fact from proof of another shall not be so unreasonable as to be purely arbitrary mandate" [1 Cooley, 639]. The petitioner was unable to rebut the presumption under P.D. No. 1612. She relied solely on the testimony of her brother which was insufficient to overcome the presumption, and, on the contrary, even disclosed that the petitioner was engaged in the purchase and sale of jewelry and that she used to buy from a certain Fredo. 23 Fredo was not presented as a witness and it was not established that he was a licensed dealer or supplier of jewelry. Section 6 of P.D. No. 1612 provides that "all stores, establishments or entitles dealing in the buy and sell of any good, article, item, object or anything of value obtained from an unlicensed dealer or supplier thereof, shall before offering the same for sale to the public, secure the necessary clearance or permit from the station commander of the Integrated National Police in the town or city where such store, establishment or entity is located." Under the Rules and Regulations 24 promulgated to carry out the provisions of Section 6, an unlicensed dealer/supplier refers to any person, partnership, firm, corporation, association or any other entity or establishment not licensed by the government to engage in the business of dealing in or supplying "used secondhand articles," which refers to any good, article, item, object or anything of value obtained from an unlicensed dealer or supplier, regardless of whether the same has actually or in fact been used.

We do not, however, agree with the Court of Appeals that there is insufficient evidence to prove the actual value of the recovered articles. As found by the trial court, the recovered articles had a total value of P93,000.00, broken down as follows: a) one earring and ring studded with diamonds (Exh. "C-2") P75,000.00 b) one set of earring (Exh. "C-3") P15,000.00 c) one gold chain with crucifix (Exh. "C-4") P3,000.00 These findings are based on the testimony of Mr. Encarnacion 25 and on Exhibit "C," 26 a list of the items which were taken by the robbers on 12 February 1988, together with the corresponding valuation thereof. On cross-examination, Mr. Encarnacion re-affirmed his testimony on direct examination that the value of the pieces of jewelry described in Exhibit "C-2" is P75,000.00 27 and that the value of the items described in Exhibit "C-3" is P15,000.00, although he admitted that only one earring and not the pair was recovered. 28 The cross-examination withheld any question on the gold chain with crucifix described in Exhibit "C-4." In view, however, of the admission that only one earring was recovered of the jewelry described in Exhibit "C-3," it would be reasonable to reduce the value from P15,000.00 to P7,500.00. Accordingly, the total value of the pieces of jewelry displayed for sale by the petitioner and established to be part of the proceeds of the robbery on 12 February 1988 would be P87,000.00. Section 3(a) of P.D. No. 1612 provides that the penalty of prision mayor shall be imposed upon the accused if the value of the property involved is more than P12,000.00 but does not exceed P22,000.00, and if the value of such property exceeds the latter sum, the penalty of prision mayor should be imposed in its maximum period, adding one year for each additional P10,000.00; the total penalty which may be imposed, however, shall not exceed twenty years. In such cases, the penalty shall be termed reclusion temporal and the accessory penalty pertaining thereto provided in the Revised Penal Code shall also be imposed. The maximum penalty that can be imposed in this case would then be eighteen (18) years and five (5) months, which is within the range of reclusion temporalmaximum. Applying the Indeterminate Sentence law which allows the imposition of an indeterminate penalty which, with respect to offenses penalized by a special law, shall range from a minimum which shall not be lower than the minimum prescribed by the special law to a maximum which should not exceed the maximum provided therein, the petitioner can thus be sentenced to an indeterminate penalty ranging from ten (10) years and one (1) day ofprision mayor maximum, as minimum to eighteen (18) years and five (5) months of reclusion temporal maximum asmaximum, with the accessory penalties corresponding to the latter. In the light of the foregoing, the Court of Appeals erred in setting aside the penalty imposed by the trial court and in remanding the case to the trial court for further reception of evidence to determine the actual value of the pieces of jewelry recovered from the petitioner and for the imposition of the appropriate penalty. We do not agree with the petitioner's contention, though, that a remand for further reception of evidence would place her in double jeopardy. There is double jeopardy when the following requisites concur: (1) the first jeopardy must have attached prior to the second, (2) the first

jeopardy must have validly been terminated, and (3) the second jeopardy must be for the same offense as that in the first. 29 Such a concurrence would not occur assuming that the case was remanded to the trial court. WHEREFORE, the instant petition is partly GRANTED by setting aside the challenged decision of the Court of Appeals in CA-G.R. CR No. 11024 insofar as it sets aside the penalty imposed by Branch 20 of the Regional Trial Court of Manila in Criminal Case No. 88-64954 and orders the remand of the case for the trial court to receive evidence with respect to the correct value of the properties involved. The decision of the Regional Trial Court is AFFIRMED subject to the modification of the penalty which is hereby reduced to an indeterminate penalty ranging from Ten (10) years and One (1) day of Prision Mayor maximum as minimum to Eighteen (18) years and Five (5) months of Reclusion Temporal maximum as maximum, with the accessory penalties of the latter. SO ORDERED. Cruz, Bellosillo, Quiason and Kapunan, JJ., concur.

#Footnotes

1 Rollo, 54-64. Per Associate Justice Ma. Alicia Austria-Martinez, concurred in by Associate Justices Nathanael P. De Pano, Jr. and Quirino D. Abad Santos, Jr. 2 Original Records (OR), 130-135; Rollo, 67-72. Per Judge Doroteo N. Caeba. 3 RTC OR, 1. 4 OR, 135; Rollo, 72. 5 OR, 132-133; Rollo, 69-70. 6 TSN, 3 October 1988, 23. 7 OR, 133-134; Rollo, 70-71. 8 OR, 134; Rollo, 71. 9 Rollo, 57-59. 10 Rollo, 61. 11 Id., 63. 12 Id., 20-21. 13 People vs. Hon. de Guzman, G.R. No. 77368, 5 October 1993.

14 Section 5, P.D. No. 1612. 15 Section 3, Id. 16 Webster's Third New World International Dictionary, unabridged, 1971 ed., 1252. 17 BLACK'S LAW DICTIONARY, 872-873, (6th ed.), citing Model Penal Code, 2.202. 18 Id., 873, taken from Reinstatement of Torts 12. 19 Diong-an vs. Court of Appeals, 138 SCRA 39 [1985]. 20 Section 14(2), Article III, 1987 Constitution. 21 34 Phil. 725, 728 [1916]. 22 CONSTITUTIONAL LAW, 1993 ed., 313. 23 TSN, 2 February 1990, 2-4. 24 It took effect on 15 June 1979. 25 TSN, 3 October 1988, 15-17. 26 OR, 79. 27 TSN, 9 November 1988, 5. 28 Id., 3-4. 29 Gorion vs. RTC of Cebu, 213 SCRA 138 [1991].

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 139250 August 15, 2000

GABRIEL CAPILI, petitioner, vs. COURT OF APPEALS, ET. AL., respondents. DECISION GONZAGA-REYES, J.: This Petition for Review on Certiorari seeks the reversal of the Decision of the Court of Appeals1 in CA G.R. CR No. 19336 entitled "People of the Philippines vs. Gabriel Capili, et. al." affirming the Decision of the Regional Trial Court2 of the National Capital Judicial Region, Branch 34, finding Gabriel Capili guilty beyond reasonable doubt of violation of Presidential Decree 1612. Gabriel Capili y Recto (GABRIEL) together with his wife Ferma Capili y Inot were charged with violation of Presidential Decree 1612, otherwise known as the Anti-Fencing Law, in an information that reads: "That on or about November 5, 1993, in the City of Manila, Philippines, the said accused, conspiring and confederating together and mutually helping each other. With intent to gain for themselves or for another, did then and there willfully and knowingly receive, possess, keep, acquire and sell or dispose of the following, to wit: Assorted pieces of jewelry Several pieces of old coins (U.S. dollar) all valued at P3,000,000.00, which they knew or should have known to have been derived from the proceeds of a (sic) crime of theft. Contrary to law."3

On December 3, 1993, both accused entered a plea of not guilty to the offense charged with the assistance of counsel.4 Thereafter, trial ensued. The trial court summarized the testimonies of the witnesses as follows: "x x x xxx xxx

Christine Diokno testified that at 4:00 P.M. on November 4, 1993, when she went home from her office, she discovered that some of her (sic) items at (sic) her closet and the jewelries (sic) and money at (sic) her mothers room were taken. Upon call, two Makati police responded and surveyed the room where the robbery took place. The police officer took her statement (Exhs. "F", "F-1" and "F-2") and then investigated the theft case. Police prepared the police report and concluded that Michael Manzo, her former houseboy, committed the offense so a case against Manzo was filed. She described all the properties that were taken as those reflected in the police report because according to her she gave the police a list of the items and is part of her statement (tsn, p. 11, May 11, 1994). Allegedly the value is about 3 Million pesos, some were of 20 years and some were of 30 years vintage, acquired by her parents since their wedding in 1945. Some from abroad, States or Hongkong acquired during trips. On November 27, 1993, Quiapo sub-station informed her that Michael Manzo was there. She talked to Michael Manzo who admitted the commission of the stealing and that he sold the items to Gabriel Capili and his wife forP50,000.00. Likewise Michael Manzo admitted that on two occasions Gabriel Capili returned some of the items. The first was before he went to Isabela. That Capili returned to him (Manzo) the memorabilia taken from her room consisting of (sic) school ring, bracelets, key chain and some custom jewelries (sic) and some other items. That three days before the apprehension Gabriel returned the Raymond Wiel watch and two cast rings with diamonds. The first ring is valued at P3,000.00 the second watch was (sic) cost P20,000.00 to P60,000.00 and the two cast rings about P80,000.00. Then Manzo informed her that he sold those items returned to other buyers, near Claro M. Recto, who paid P1,500.00 and P1,000.00 for the ring which police officer (sic) failed to recover because the stand was no longer there. She was shown by the police officer the items recovered from Gabriel Capili and his wife which she identified as her property. Shown with Exhs. "A", "B", "C", she said those are her properties and that the coins (sic) were acquired during the trips to the States. She kept John F. Kennedy dollar coins contained in a small box. She further relayed that the coins, Exh. "A" came from a brooch owned by her mother. The chain with medal of our Lady was bought by her mother and was given to her together with other belongings. That before the discovery of the incident her mother had the list of all the items by counting them physically because her mother used to check the jewelry every week in her presence. That all is worth three (3) Million Pesos because the jewelries (sic) were sometimes brought to a jeweler for a change or for removal of stones or replacement that is why she considered that all the jewelries (sic) were appraised. She does not know, however, what exactly were brought by her mother. That she was present during the last inventory of the items and the land titles by her mother, presenting the alleged inventory on August 1, 1993 (Exh. "S"), after her father died on July 15, 1993. While her mother was checking them, she was in the room writing the description of the jewelries (sic), the cost and date when bought. That the corresponding value stated came from her mother kept inside the vault. That on November 2, 1993, she took out all the items because November 9 was her mothers birthday and would like to select the items she and her mother were going to wear for the

occasion then check the jewelries (sic) against the prepared list. The list included the items lost but did not include the box of memorabilia which was taken from her room. She claimed that the records including the receipts from where the list was taken were lost together with the jewelries (sic) that were taken. xxx xxx xxx

To support the allegation in the Information Michael Manzo testified that after he asked his friend Emilio Benitez where he can sell his jewelries (sic) he was brought to Boy Rectos (accused) house at 1260 Carola St., Sampaloc, Manila, to whom he gave one bag of jewelries (sic) with the information that he stole them while he was a house boy. Recto agreed to pay him P50,000.00 (p. 3, tsn, March 3, 1994). He left and went back after a week or on November 5, as he needed the money. He was paid P1,500.00. He left again and went back after two weeks and was paid again P6,000.00. He left again but in his return he was not paid anymore. When he visited his friend Emilio Benitez at the precinct, having been charged with vagrancy, he was caught by the police asking him where he brought the jewelries (sic), so he pointed to Boy Recto, who was picked-up and brought to the station and investigated. During the frisking and searching at the station, police officers found pearls and old coins from Gabriel Capili. The following day, Mrs. Ferma Capili was investigated at sub-station 3, Quiapo, WPD. He identified the pearl earring with copper (sic) with diamond (Exh. "A"). He likewise identified the old coin 4 pieces of dollars marked as Exhs. "B-1", "B-2", "B-3" and "B-4"; "B-1", "B-2" dimes, "B-3" and "B-4" quarter cents; pendant with inscription Boy Recto, Exh. "C". He admitted that the statement marked as Exh. "D" and sub-markings is his. Describing the contents of the bag, he said that there were more or less 20 pieces of rings, some with pearls and some with diamonds and birthstones; more or less 20 pairs of earrings, diamond with pearls; more or less 10 pieces of necklaces of plain gold with pendant with the replica of God and cast with diamond. There were Quartz watches; 3 pieces Bulova watches; 5 pieces of Seiko watches, Raymond Wiel. That per complainants information, all of them costs (sic) 3 Million Pesos which he merely gave to the accused without counting them. He however, claims that they will cost only one to two million pesos. Despite which value, he entrusted them to Boy Recto without counting the pieces. Defense adopted Exhibit "B" as Exhibit "1" and sub-markings, Exhibit "D" as their Exhibit "2" and "2-a". That during the investigation, when he was given another lawyer, he stated that he told the accused to sell the jewelries (sic) he stole. (p. 6, tsn, March 16, 1994) That witness explained that only the fancy ones were returned to him. That three days after he left the jewelries (sic) to (sic) Recto, they had drinking session somewhere at Recto, on which occasion, he did not ask for the jewelries (sic). That the P1,500.00 was given to him near the bus terminal at Sampaloc near UST and when the fancies (sic) were returned, which he came to know as such because he had it appraised in a pawnshop when they arrived from Roxas, Isabela. When the jewelries (sic) were returned contained in the bag, he accepted, opened (sic) for a couple of minutes without counting. That

Emilio Benitez glanced on (sic) them because the bus was about leave. Recto gave the instruction that he can come back within two weeks because Boy Recto will pay. The witness admitted that he is facing a charge of Qualified Theft in Makati pending before a court where he posted his bail. That he is testifying before this Court out of his own volition. He explained that they went to Isabela per instruction of Gabriel Capili that they should lie low because the police were hunting for them and that Emilio Benitez is from Roxas, Isabela. After more or less two weeks when (sic) they arrived from Isabela, he was requested by Boy Recto (Gabriel Capili) to sign a blank document somewhere at Espana (Document Exh. "3" to "3-A"). He was not, however, forced. That upon arrival from Isabela, they went to the house of the accused then proceeded to wait at a hotel in Sta. Cruz. After three hours of waiting, the accused arrived and gave him P6,000.00 in the presence of Emilio Benitez without receipt. He declared that he himself is not sure whether all the jewelries (sic) inside the bag are (sic) genuine or not. Having admitted to the police that he is Michael Manzo, he was asked where he brought the jewelries (sic) so he pointed to Boy Recto. He admitted to have signed a blank document, Exhibit "4" and "3", his signature, Exh. "4-1" and Exh."3-A", but do (sic) not know where the originals were, but later said that the originals are in the hands of the police officers. SPO3 Ernesto Ramirez testified that as police officer of Station 3, on November 27, 1993 he investigated Michael Manzo who was accused of Qualified Theft at Makati and who admitted to him having committed said offense and pointed to the house of Gabriel Capili at Sampaloc, Manila where he sold the jewelries (sic). Thereafter, he and his companions SPO2 Reyes, SPO3 Salalia and SPO3 Fuentes with Michael Manzo went to the place and saw the wife of Gabriel Capili wearing the pair of earrings, one of the jewelries (sic) stolen. They were allowed by Gabriel Capili to get (sic) inside the residence where Gabriel Capili showed him the signed document of Michael Manzo, Exh. "4" and said he returned the jewelries (sic). It was however, denied by Manzo although he admitted the signature. Gabriel Capili went with them to the police precinct where he (Gabriel Capili) was referred to the investigator and found (sic) from his pockets 4 pieces of coins. Allegedly while the wife was then being investigated, Manzo pointed to the earrings worn by the (sic) wife as part of those stolen properties. The same was taken by the investigator. He pointed to both accused inside the courtroom. SPO1 Eduardo San Diego also from Station 3, Quiapo, Manila, investigator, investigated the case of Qualified Theft that happened at the house of Cristine Diokno. Both accused were positively identified by Michael Manzo so he took the latters statement. That during his investigation he recovered a necklace with pendant, US dollar coins with different denominations and one pair of earrings (Exh. "A", "B" and "C"). In their investigation they tried to recover the other items but failed because the establishment of the other buyer pointed to them by Michael Manzo was no longer existing. He prepared the booking sheet and arrest report Exhs. "D" and "E" and sub-markings. xxx xxx xxx

Gabriel Capili denied any knowledge about the charge against him and declared that what Michael Manzo stated in court that he agreed to pay P50,000.00 but paid only P1,800.00 is not true. He was at home on November 10, 1993 selling junk foods (sic) when he was called by Emil, companion of Michael Manzo, through the phone which number he gave to Emil when the

latter bought something on credit from him a week before that date. Emil asked him if he would like to buy jewelry to whom he relayed if he will see the jewelry. Emil arrived at 2:00 oclock P.M. together with Michael Manzo, the first time he saw the latter and showed him two (2) pieces of jewelry, one birthstone and an old coin with a price of P2,000.00. He inquired from (sic) where the jewelries (sic) came from and was answered by Michael Manzo that it came from and (sic) being sold by his mother. He declined because he cannot pay for it. Michael Manzo handed to Emil something wrapped of which he was asked to appraise. Michael Manzo asked him if he knew somebody who can buy. He said he has but hard to see because he seldom see the man already but was invited to see the person at Recto. After boarding the taxi they did not proceed immediately to the place. Michael Manzo ordered the taxi cab to go back to Sta. Mesa Love Hotel where he was told to wait. Michael Manzo went up the hotel while Emil went towards Aurora Boulevard walking carrying some items but did not know what happened. After one hour of waiting at the taxicab and worried about the taxi fare, he went inside the hotel and after inquiring from the counter where his companion was, Michael Manzo went down with two women companions. Fifteen minutes after the two women left, Emil arrived and said he went to Cubao selling the jewelries (sic). Thereafter, they went to Recto at (sic) a business establishment near the Galaxy Theater. He was offered to drink from almost dark until dawn asking him if he had already find (sic) his friend buyer. They parted ways and went home. On November 15, Manzo and Emil called him up again asking if it was possible to see him which he positively answered. He went to UST somewhere near Mambusco station where he saw Emil with Michael Manzo about 5 meters from Emil standing talking to someone. He asked Emil if he was able to sell the jewelries (sic) and was answered "not yet". Emil was borrowing P700.00 but he has no such amount, so Emil gave him the jewelries (sic) formerly offered to him, the birthstone and watch allegedly as a gift from Michael Manzo. Emil informed him that he and Michael Manzo together with two others were going to Isabela so he gave the P700.00. After they (Emil and his friend) boarded the bus he went home. On November 21, he was fetched by Emil, brought to a place near the UST along Dapitan Street where he found Michael Manzo retrieving the gift given to him. Because of Manzos insistence, he returned them but asked Manzo to sign Exh. "3". They failed to return his P700.00 so he asked Manzo to sign another documents (sic), Exhs. "4" and "4-A", the original of which was given to the policeman and which was not returned to him. After several days Pat. Ramirez arrived informing him that Michael Manzo sold him jewelries (sic). Invited (sic) he went to the police at the Hidalgo sub-station 3. Michael Manzo was not immediately investigated but Michael Manzo and Emil were incarcerated. After fifteen (15) minutes from the second floor he was brought to the ground floor inside the cell and detained for several days. He alleged that on the same day he was brought in a room at the second floor where he was mauled by Pat. Ramirez (sic) not convinced with what he said about the paper (Exh. "4"), he gave them then brought back to the cell. He told the police that the jewelries (sic) they are looking for are in the possession of Michael Manzo. He further claimed that Michael Manzo talked to a certain Go and pointed to some other buyers who were brought to the precinct. He, however, did not know if they were released. On November 27 when his wife visited him at 7:00 P.M. she was likewise incarcerated because Michael Manzo pointed to the earrings of his wife. He further declared that prior to his wifes arrival, policeman and Michael planned that when his wife arrived, Michael will point to her earrings, allegedly because Emil gave P500.00 to the

police officer while planning to include his wife. His wife was then brought to the second floor but did not know what happened, thereafter was incarcerated. He testified that the earrings of his wife was given by her brother and that the old coin, Exh. "B" is his acquired when he helped, per order of Pat. Nick Golahan, in carrying dead body (sic) when MV Nucnucan sank in Cebu where the son of one he carried gave him coin. The other coin belongs to him which he picked up in Cebu. That the necklace with print Boy Recto on the pendant belongs to him and which was taken at the precinct from the dancer to whom he gave it. Further stating that the same came from Pat. Alex Aguirre when he was still single. That upon inquest, the Fiscal told the police that they should be released but were not and (sic) brought back to the cell. The following morning they were brought to the City Hall. There again, the Fiscal ordered that they be released but were not and (sic) brought back to the cell once more. On the third time when he was brought to the Fiscal, the latter allegedly told him that San Diego altered the testimony that is why they will be incarcerated. He denied that Manzo signed Exh. "3" without any writing and pointed to the typewritten statement therein as his relaying that the same was thru Michaels suggestion at the time when they were already quarreling while accusing Manzo to have stolen the properties subject matter of this case and even questioned that there is something wrongly written, the giving as a gift. That although they did not know the accused Michael Manzo and did not know of any reason why he pointed to him and his wife as buyers of the jewelries (sic) worth 3 Million Pesos, he believed that it was because of the quarrel when he started accusing Manzo of stealing of which he was being blamed. He now claims that the he came to know Emilio Benitez only on November 5, the same time he came to know Michael. (tsn, p. 22, Aug. 8, 1994), hence, there is no reason why Benitez will approach him selling the property. There is no quarrel with the police officers and so he has no knowledge why these people would like to implicate him and his wife. He likewise did not know of any reason why the police officer stated in their affidavit of arrest that the items "US Dollars" were recovered from him at the time of the investigation. He admitted that only one of the coins belongs to him, picked-up from Cebu (Exh. "B-4") and his two (2) LRT coins are still missing so with P20.00 and two more Abraham Lincoln coins. Although he claimed that San Diego did not release them after the Fiscals order he did not file any action against San Diego. That on December 1, 1993, the Prosecutor ordered the police to release them and was present asking the Fiscal if he can be allowed to go home but since they did not have any document, the Fiscal said the policemen will take care of them. They did not execute any statement because according to him he was not given any chance. SPO1 Beinvenido Inot testified that he is a member of the National Police Force of Precinct 1, Olongapo City and that the accused Ferma Capili, wife of Gabriel, is his sister. He was asked by his sister to testify about the pair of earring (sic) that he gave Ferma on June 24, 1990, a U. S. Fancy jewel which was given by her sister from abroad. It has brillantitos which is the same as a base of the glass. The same was confiscated from Ferma by the police. The last time he saw the pair of earring was on the date his sister celebrated her birthday. Showing all the exhibits of the prosecution to the witness, at first he answered "There are no brillantitos pair of earrings, sir.". And later witness answered: "Ay ito pala." (holding the pair of earrings marked as Exh. "A-1", tsn p. 5, Oct. 14, 1994). He later claimed that the pair of earrings

is actually for his wife sent by her sister abroad to Olongapo. He cannot remember having seen Ferma Capili on December 1993 to September 9, 1994, they saw each other two times and that they talked about those jewelries (sic) thru the phone at that time when the accused was apprehended and incarcerated. However, despite the information of Ferma Capili that she was apprehended because of the pair of earrings he did not do anything because allegedly he was too busy and they have operation. He admitted that this is the first time he declared that the earrings came from him without executing any written statement. (Defense marked Exh. "A-1" pair of earring (sic) as their Exh. "8") (Decision, pp. 1-15; Rollo, pp. 31-45)."5 On August 17, 1995, the trial court rendered its decision acquitting Ferma Capili but finding the accused, Gabriel Capili, guilty beyond reasonable doubt of the crime charged the dispositive portion of the decision reads: "WHEREFORE, finding the prosecutions evidence to be sufficient to support a conviction beyond moral certainty, for violation of P.D. 1612 in relation to Sec. 3 par. A of the same law which required that the penalty to be imposed shall be in the maximum period if the value of the property is more than P22,000.00, adding one (1) year for its additional P10,000.00, the total penalty of which shall not exceed twenty (20) years, further considering that the consideration of the purchase is P50,000.00, accused Gabriel Capili is hereby found guilty beyond reasonable doubt for violation of said law. Without any mitigating or aggravating circumstances attendant to its commission, but granting the accused with the benefit of the indeterminate sentence law, he is hereby sentenced to suffer eight (8) years and one (1) day to ten (10) years of prision mayor medium and to suffer the additional penalty of three years (one for every P10,000.00) and to further suffer the accessory penalty thereof. The accused shall be credited with the full extent of his preventive imprisonment in accordance with Art. 29 of the Revised Penal Code. Since the claim of P3 Million has not been sufficiently proven but the agreed price between the seller and herein accused is only P50,000.00, the accused is hereby directed to indemnify the complainant Christined Diokno the sum of P50,000.00, less the value of the jewelries (sic) presented in Court, Exhibits "A". "B" and "C" and its sub-markings, to be returned to the owner upon proper receipt and photograph. The bond posted by the accused for his provisional liberty is hereby cancelled. The body of the accused is hereby committed to the Director of the Bureau of Corrections, National Penitentiary, Muntinlupa, Metro Manila, through the City Warden of Manila. Considering that there is no evidence to show complicity and/or that Ferma Capili conspired and confederated with her husband Gabriel Capili, she is hereby acquitted from the offense charged in the Information. The bond posted by the accused for her provisional liberty is hereby cancelled. SO ORDERED."6 GABRIEL appealed to the Court of Appeals which affirmed the decision of the RTC the dispositive portion of its decision reads:

"WHEREFORE, the decision of the trial court dated August 17, 1995 convicting the appellant for violation of P.D. 1612 is hereby AFFIRMED in toto. SO ORDERED."7 Motion for reconsideration was denied8 , hence this appeal where the accused assigns the following error: "THE COURT OF APPEALS IN AFFIRMING THE DECISION OF THE TRIAL COURT ERRED IN NOT REMANDING THE CASE TO THE COURT A QUO FOR FURTHER PROCEEDINGS DESPITE OF (SIC) THE FAVORABLE RECOMMENDATION OF THE OFFICE OF THE SOLICITOR GENERAL CONSIDERING THAT THE ACTUAL VALUE OF THE FENCED ARTICLES WERE NOT CORRECTLY ESTABLISHED BY THE PROSECUTION."9 The petitioner maintains that even for the sake of argument that the prosecution has established that the petitioner committed the crime of fencing (violation of P.D. 1612) beyond reasonable doubt, there is no legal basis for him to suffer the entire penalty imposed by the trial court. Petitioner claims that the Office of the Solicitor General, in its appellees brief filed with the Court of Appeals, agrees that basis of the penalty for the offense of fencing is the value of the property actually involved and not the agreed selling price of the stolen item. The petitioner also maintains that since the prosecution failed to prove the value of the stolen goods, the guilt of the petitioner has not been proved beyond reasonable doubt. The petitioner therefore prays that the decision of the Court of Appeals be reversed and a new one be issued either acquitting the petitioner or remanding the case to the court a quo for further proceedings.10 The respondent through the Office of the Solicitor General (OSG) counters that on April 25, 1997, it filed a Manifestation/Clarification modifying the recommendation it made in its appellees brief to the effect that a remand of the case would unduly delay the disposition of the case. Therefore, to expedite the final resolution of the case, the OSG recommended that as an alternative to a remand that the assessment and findings of the trial court on the value of the subject articles, which is P50,000.00 be adopted and used instead.11 It is therefore the contention of the OSG that there is no merit in the petitioners claim that the OSG agreed to the remand of the case for further reception of evidence to determine the value of the stolen goods inasmuch as this would be prejudicial to the rights of the petitioner. The OSG also opines that the petitioner is not entitled to an acquittal since the value of the stolen property is not determinative of the guilt of the accused and is not an element of the crime but is only determinative of the penalty therefor. The petition is partly meritorious. Fencing is the act of any person who, with intent to gain for himself or for another, shall buy receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft. 12 The essential elements of the crime of fencing are: "1. A crime of robbery or theft has been committed; 2. The accused, who is not a principal or an accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or

disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime; 3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and 4. There is on the part of the accused, intent to gain for himself or for another."13 All these elements are present in the case at bench. The first element or the fact of theft was proved by prosecution witness, Christine Diokno (DIOKNO) who testified that several pieces of jewelry, watches and money were stolen from her mothers bedroom. She reported the theft to the police who after conducting an investigation, concluded that her houseboy, Michael Manzo (MANZO), committed the offense. Consequently, a criminal case was filed against MANZO. In her testimony, DIOKNO stated that the major items that were taken consisted of two diamond rings each having a diamond solitaire of three (3) carats each, a pair of diamond earrings each having a diamond solitaire of two point five (2.5) carats, a diamond cross with twelve (12) half (1/2) carat diamond, her mothers wedding band, an emerald set consisting of an emerald ring set with diamonds with a pair of matching earrings, a sapphire set consisting of two sapphire rings set with diamonds and matching earrings, a South Sea pearl set consisting of a ring and two pairs of matching earrings also set with diamonds, three cultured pearl necklaces with matching cultured pearl earrings set with diamonds, a topaz set consisting of two rings with diamonds and one with rubies with a set of matching earrings, a cameo set consisting of a ring, matching earrings and a brooch all set with diamonds and four solid gold watches, a Rolex, Piaget, Universal Geneve and a Gabriel Peregaux. She alleged that the total value of the items amounted to approximately three million (P3,000,000.00) pesos. In court, DIOKNO identified some of the recovered stolen items consisting of a set of pearl earrings with two small diamonds (Exhibit "A"), a gold chain with pendant (Exhibit "B") and old United States dollar coins (Exhibit "C").14 DIOKNOs testimony is corroborated by MANZO, who admitted that he stole the jewelry from DIOKNO. And that after stealing the jewelry, he delivered them to the petitioner, GABRIEL with the information that the jewelry was stolen and for the purpose of selling the same. He identified GABRIEL in court as the person to whom he delivered the stolen jewelry.15 MANZO testified that GABRIEL was not a participant in the theft of the jewelry and that he told GABRIEL that the jewelry was stolen. He also established the fact that the petitioner agreed to pay fifty thousand (P50,000.00) pesos for the stolen jewelry which clearly manifests intent to gain on the part of the petitioner. Consequently, MANZOs testimony proves the second, third and fourth elements of the crime of fencing. At any rate, the law does not require proof of purchase of the stolen articles by the accused as mere possession thereof is enough to give rise to a presumption of fencing.16 GABRIEL, who was in possession of at least two of the stolen items, has not rebutted this presumption. We also disagree with the petitioner that the prosecution failed to prove the value of the stolen items. Although DIOKNOs testimony is hearsay and is inadmissible for purposes of determining the value of the stolen items inasmuch as her testimony was not based on her own personal

knowledge but on the appraisals made by jewelers and what her mother told her, MANZOs testimony remains unrebutted. MANZO established that he sold the stolen items to GABRIEL for P50,000.00 and in the absence of any evidence to the contrary, said amount is presumed to be the value thereof as it is the only value established by the prosecution. Besides, the valuation of the stolen items made by the trial court is a factual issue and factual findings of the trial court especially when affirmed by the Court of Appeals are entitled to great weight and generally should not be disturbed on appeal.17 We note however that the trial court was mistaken in imposing the penalty. A person found guilty of fencing property the value of which exceeds P22,000.00 is punished under Presidential Decree 1612 as follows: "Sec. 3. Penalties Any person guilty of fencing shall be punished as hereunder indicated: a) The penalty of prision mayor, if the value of the property involved is more than 12,000 pesos but not exceeding 22,000 pesos; if the value of such property exceeds the latter sum, the penalty provided for in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos, but the total penalty which may be imposed shall not exceed twenty years. In such cases, the penalty shall be termed reclusion temporal and the accessory penalty pertaining thereto provided in the Revised Penal Code shall also be imposed." Under the Indeterminate Sentence Law18 , the court shall sentence an accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed and the minimum of which shall be within the range of the penalty next lower to that prescribed for the offense; and if the offense is punished by any other law, the court shall sentence an accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same.19 Applying the foregoing, the petitioner should be sentenced to suffer the penalty of prision mayor maximum. The fact that the value of the fenced items exceeds P22,000.00 should not, like in cases of estafa, be considered in the initial determination of the indeterminate penalty.20 In the absence of mitigating and aggravating circumstances, this should be imposed in its medium period which ranges from ten (10) years, eight (8) months and one (1) day to eleven (11) years and four (4) months. Adding the additional two (2) year sentence, one for each P10,000.00 in excess of P22,000.00, the maximum of the indeterminate penalty is anywhere within ten (10) years, eight (8) months and one (1) day of prision mayor to thirteen (13) years and four (4) months of reclusion temporal21 . On the other hand, the minimum of the indeterminate sentence should be anywhere within the range of the penalty next lower which is prision correcional maximum22 which ranges from four (4) years, two (2) months and one (1) day to six (6) years. WHEREFORE, the petition is hereby DENIED and the decision of the Court of Appeals finding the petitioner, Gabriel Capili guilty beyond reasonable doubt of violating Presidential Decree 1612 otherwise known as the Anti-fencing law is AFFIRMED with the MODIFICATION that the petitioner is hereby sentenced to suffer an indeterminate penalty of four (4) years, two (2) months and one (1) day of prision correcional as minimum to thirteen (13) years and four (4) months of reclusion temporal as maximum. SO ORDERED.

Melo, (Chairman), Vitug, Panganiban, and Purisima JJ., concur.

Footnotes
1

Twelfth Division composed of the ponente J. Presbiterio J. Velasco, Jr. and the members: J. Consuelo Ynares-Santiago (Chairman) and J. B. A. Adefuin-De La Cruz concurring.
2

Penned by Judge Romulo A. Lopez. Record, 1. Record, 25. Court of Appeals Decision, 2-10; Rollo, 25-33. RTC Decision, Record, 269-270. Court of Appeals Decision, Rollo, 43. Rollo, 44-45. Petition, 10, Rollo, 18. Petition, 18-21. Comment, 6; Rollo, 61.

10

11

12

2a, P.D. 1612; Tan vs. People, G.R. No. 134298, August 26, 1999, 6;Dunlao, Sr. vs. Court of Appeals, 260 SCRA 788, 792 [1996].
13

Tan vs. People, Supra, 7-8. TSN, May 11, 1994, 4-18. TSN, March 3, 1994, 2-8. 5, P.D. 1612. People vs. Sumalpong, 284 SCRA 464,488[1998]. ACT NO. 4103 as amended. Ibid., 1.

14

15

16

17

18

19

20

People vs. Gabres, 267 SCRA 581, 596 [1997].

21

1 of ACT NO. 4103, Supra states that in cases when an additional year is added to the penalty, the penalty shall be termed reclusion temporal as in this case where the maximum penalty exceeds the range ofprision mayor.
22

People vs. Javier, 112 SCRA 186, 193 [1982]; People vs. Gonzales, 73 PHIL. 549, 550-552 [1942].

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 146584 July 12, 2004

ERNESTO FRANCISCO y SPENOCILLA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

CALLEJO, SR., J.: This is an appeal via a petition for review on certiorari of the Decision1 of the Court of Appeals in CA-G.R. CR No. 19110 affirming the Decision2 of the Regional Trial Court of Malolos, Bulacan, Branch 22, finding petitioner Ernesto Francisco guilty of violating Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law, sentencing him to suffer the penalty of ten (10) years and one (1) day of prision mayor maximum, as minimum, to twenty (20) years ofreclusion temporal maximum, as maximum, with the accessory penalties corresponding to the latter, and to pay the corresponding value of the subject pieces of jewelry. The Indictment The petitioner was charged of violating P.D. No. 1612 under the Information filed on June 23, 1993, the accusatory portion of which reads: That in or about the month of November 1991, in the municipality of Meycauayan, Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Ernesto Francisco y Spenocilla, with intent to gain for himself, did then and there wil[l]fully, unlawfully and feloniously buy, receive, possess and acquire from one Pacita Linghon y Liza, not the owner, several pieces of jewelry, to wit: One (1) pair of earrings (Heart Shape) One (1) White Gold Bracelet One (1) Diamond Ring One (1) Ring with Diamond -----------P 400,000.00 150,000.00 100,000.00 5,000.00

with the total value of P655,000.00, belonging to Jovita Rodriguez y Cruz, which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft. Contrary to law.3 The petitioner was arraigned, with the assistance of counsel, and entered a plea of not guilty. Trial forthwith ensued. The Case for the Prosecution

Jovita Rodriguez was a resident of Barangay Manggahan, Rodriguez, Rizal.4 She was engaged in business as a general contractor under the business name J.C. Rodriguez Contractors. Macario Linghon was one of her workers. She and her husband, the former Municipal Mayor of Rodriguez, Rizal, acquired several pieces of jewelry which were placed inside a locked cabinet in a locked room in their main house. Jovita hid the key to the cabinet inside the room. The couple and their son resided inside a compound. They hired Pacita Linghon, Macarios sister, as one of their household helpers us sometime in February 1989.5 Pacita swept and cleaned the room periodically. Sometime in May 1991, she left the employ of the Rodriguez family. Sometime in the third week of October 1991, Pacita contacted her brother Macario, who resided in Sitio Baloongan, Barangay Paltok, Meycauayan, Bulacan,6 and asked him to sell some pieces of jewelry. She told Macario that a friend of hers owned the jewelry.7 Macario agreed. He then went to the shop of petitioner Ernesto "Erning" Francisco located at Pacheco Street, Calvario, Meycauayan, Bulacan,8 which had a poster outside that said, "We buy gold." Macario entered the shop, while Pacita stayed outside. Macario offered to sell to Ernesto two rings and one bracelet. Ernesto agreed to buy the jewelry for P25,000, and paid the amount to Macario. He also gave Macario P300 as a tip.9 Sometime in November 1991,10 Pacita asked Macario anew to sell a pair of earrings. He agreed. He and a friend of his went to the shop of Ernesto and offered to sell to Ernesto the pair of earrings for P18,000. The latter agreed and paid Macario the amount. Ernesto gave a P200 tip to Macario. After these transactions, Macario saw the petitioner in his shop for about five to six more times and received some amounts.11 Sometime in November 1991, Jovita was asked to be a principal sponsor at a wedding. She was shocked when she opened the locked cabinet containing her jewelry, and found that the box was empty. She noticed that the lock to the cabinet was not broken. Among the pieces of jewelry missing were one pair of diamond heart-shaped earrings worthP400,000; one heartshaped diamond ring worth P100,000; one white gold bracelet with diamond stones worthP150,000; and one ring with a small diamond stone worth P5,000. She suspected that it was Pacita who stole her jewelry. She was, however, occupied with her business ventures that she had little time to gather evidence and charge Pacita. On August 19, 1992, Jovita filed a complaint for theft against Pacita and her mother Adoracion Linghon with the Counter-Intelligence Group of the Philippine National Police in Camp Crame, Quezon City. She stated that she owned several jewels, viz: one (1) heart-shaped pair of earrings with diamond worth P400,000; one (1) heart-shaped ring with diamond worth P100,000; one (1) white gold bracelet with diamond stones worth P150,000; and, one (1) ring with a small diamond stone worth P5,000. She also averred that Pacita had stolen the pieces of jewelry, and that she and her mother Adoracion disposed of the same. A team of police investigators, including PO1 Santiago Roldan, Jr. of the Counter-Intelligence Group, invited Pacita and Adoracion to Camp Crame, Quezon City, for investigation in connection with Jovitas complaint. Pacita arrived in Camp Crame without counsel and gave a sworn statement pointing to the petitioner as the person to whom she sold Jovitas jewelry. On August 23, 1992, Pacita gave a sworn statement to PO1 Roldan, Jr., admitting that she sold one pair of heart-shaped earrings with diamond, one white gold bracelet, one heart-shaped diamond ring, and one ring "with big and small stones" to "Mang Erning" of Meycauayan, Bulacan, for the total price of P50,000 to cover the cost of her fathers operation and for food. When asked about

the full name of the person to whom the jewelry was sold, Pacita replied that she knew him only as "Mang Erning." Pacita accompanied a group of five police officers, which included SPO1 Dremio Peralta and PO1 Roldan, Jr. to the shop in Meycauayan, Bulacan. Pacita pointed to the petitioner as the "Mang Erning" who had purchased the jewelry from her. The policemen alighted from their vehicle and invited the petitioner for questioning in Camp Crame. Upon his insistence, the petitioner was brought to the police station of Meycauayan, Bulacan. When they were at the police station, the petitioner, in the presence of SPO4 Valdez, offered an amount of P5,000 to the policemen as a bribe, for them not to implicate him in the case. PO1 Roldan, Jr. rejected the offer.12 They again invited the petitioner to go with them to Camp Crame, but the petitioner refused and demanded that the policemen first secure a warrant for his arrest should they insist on taking him with them.13 Nevertheless, Pacita was charged with qualified theft in the Regional Trial Court of San Mateo, Rizal, Branch 76.14 The case was docketed as Criminal Case No. 2005. Adoracion was also charged with violating P.D. No. 1612 (Anti-Fencing Law), docketed as Criminal Case No. 1992. The cases were consolidated and jointly tried. Meanwhile, Jovita succeeded in convincing Macario to testify against the petitioner, assuring him that he would not be prosecuted for violation of P.D. No. 1612. Macario agreed to testify against the petitioner. PO1 Roldan, Jr. and SPO1 Peralta executed a joint affidavit on their investigation. On September 1, 1992, Jovita executed a sworn statement in the office of the police station of Meycauayan, Bulacan, charging the petitioner of buying stolen jewelry worth P655,000.15 A criminal complaint against the petitioner for violation of P.D. No. 1612 was filed in the Municipal Trial Court of Meycauayan, Bulacan, docketed as Criminal Case No. 92-13841. During the preliminary investigation, Pacita and Macario testified that they sold a set of earrings, bracelet and two rings to the petitioner for P50,000 at his shop in Meycauayan, Bulacan. According to Pacita, she found the jewelry belonging to Jovita while she was cleaning the room in the house, and that she brought the jewelry home.16 The court found probable cause against the petitioner, and issued a warrant for his arrest. On June 23, 1993, an Information was filed by the Provincial Prosecutor with the RTC charging the petitioner with violating P.D. No. 1612. In the meantime, on August 20, 1993, judgment was rendered by the RTC of San Mateo, Rizal, Branch 76, in Criminal Cases Nos. 1992 and 2005, finding Pacita guilty of theft and Adoracion guilty of fencing under P.D. No. 1612, beyond reasonable doubt. The decretal portion of the decision reads: WHEREFORE, premises considered, judgment is hereby rendered in these cases, as follows: 1. In Crim. Case No. 2005, finding accused Pacita Linghon y Liza GUILTY beyond reasonable doubt of the crime of theft, as defined and penalized under Art. 308 in relation to Art. 309 of the Revised Penal Code, and sentencing her to suffer the indeterminate sentence of Nine (9) years and Four (4) months of prision mayor as

minimum to Eighteen (18) years, Two (2) months and Twenty (20) days of reclusion temporal as maximum, to return to complainant Jovita Rodriguez the unrecovered stolen pieces of jewelry subject of this case and if restitution is not possible, to indemnify the said complainant in the amount of P1,300,000.00; and to pay the costs. 2. In Crim. Case No. 1992, finding accused Adoracion Linghon y Liza GUILTY beyond reasonable doubt of the offense of violation of PD 1612, otherwise known as the AntiFencing Law, and sentencing her to suffer imprisonment of Twelve (12) years of prision mayor; to indemnify complainant Jovita Rodriguez in the amount ofP45,000.00; and to pay the costs. SO ORDERED.17 The Case for the Petitioner The petitioner testified that he was a resident of Calvario, Meycauayan, Bulacan. He had a shop located at Pacheco Street, Calvario, Meycauayan, Bulacan, where he bought and sold jewelry. He had been in this business since 1980.18He did not transact with Pacita regarding Jovitas missing jewels.19 In fact, he did not even know Jovita and met her only during the preliminary investigation of the case before the MTC of Meycauayan, Bulacan. He, likewise, denied knowing Pacita Linghon, and claimed that he first saw her when she accompanied some policemen in civilian clothes to his shop, where he was thereafter invited to Camp Crame for investigation.20 He saw Pacita again only during the preliminary investigation of the case.21 The petitioner also averred that he had no transaction with Macario of whatever nature.22 The petitioner further testified that when the policemen in civilian clothes approached him in his shop, they asked who "Mang Erning" was, as the sign in his shop carried such name. When he responded to the question, the policemen identified themselves as members of the police force. The petitioner then gave them his full name.23 When the policemen invited him for questioning, he refused at first. Eventually, he agreed to be interrogated at the municipal hall, where the policemen insisted on bringing him to Camp Crame. He told them that he would go with them only if they had a warrant of arrest.24 He denied ever offering any bribe to the policemen.25 On November 29, 1995, the court rendered judgment finding the petitioner guilty beyond reasonable doubt of violating P.D. No. 1612. The decretal portion of the decision reads: WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows: 1. Finding the accused GUILTY beyond reasonable doubt of the violation of Pres. Decree No. 1612 (Anti-Fencing Law) and is hereby sentenced to suffer the penalty of 10 years and 1 day of prision mayor maximum, as minimum, to 20 years of reclusion temporal maximum, as maximum, with the accessory penalties corresponding to the latter. 2. Ordering the accused to pay to private complainant Jovita Rodriguez the corresponding value of the subject items of jewelries (sic): one (1) pair of earrings, heart shaped P400,000.00

one (1) white gold bracelet one (1) diamond ring one (1) ring with diamond TOTAL VALUE

150,000.00 100,000.00 5,000.00 P655,000.00

with 6% interest on all amounts due from the filing of the information on June 23, 1993 until said amounts have been fully paid. SO ORDERED.26 The petitioner appealed the decision to the Court of Appeals contending that: I THE LOWER COURT ERRED IN NOT FINDING THAT THE TESTIMONY OF PROSECUTION WITNESSES ARE ALL HEARSAY EVIDENCE. II THE LOWER COURT ERRED IN NOT FINDING THAT THE PROSECUTION EVIDENCE WAS NOT SUFFICIENT TO CONVICT THE ACCUSED-APPELLANT BEYOND REASONABLE DOUBT. III THE LOWER COURT ERRED IN BELIEVING ON THE CONTRADICTING TESTIMONY (sic) OF PROSECUTION WITNESSES. IV THE LOWER COURT ERRED IN BELIEVING THE TESTIMONY OF A PROSECUTION WITNESS AS TO THE ALLEGED ACCUSED-APPELLANTS OFFER OF BRIBE WITHOUT SHOW OF MONEY. V THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT.27 On December 29, 2000, the CA rendered judgment affirming the decision of the RTC.28 The Present Petition In the present recourse, petitioner Ernesto Francisco asserts that:

The Court of Appeals erred in sustaining the trial courts decision finding petitioner guilty beyond reasonable doubt of violation of the (sic) Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law. The Court of Appeals erred in relying on the conflicting testimonies of prosecution witnesses, all of which consisted of hearsay evidence.29 The petitioner asserts that the prosecution failed to prove his guilt for the crime charged beyond reasonable doubt. He avers that the prosecution failed to prove that Pacita stole the jewelry subject of the charge, and that Macario sold the said pieces of jewelry to him. He, likewise, posits that the prosecution failed to present Pacita as its witness to prove that she stole the pieces of jewelry and sold the same to him, and to adduce in evidence the jewelry allegedly sold to him. He contends that the testimonies of Macario and PO1 Roldan, Jr., on his investigation of Jovitas complaint for theft, are hearsay evidence. The appellant argues that assuming that Macario sold the subject jewelry to him, Macario had no personal knowledge that the same belonged to Jovita. The petitioner avers that the testimony of Macario, the principal witness of the prosecution, is inconsistent on substantial matters; hence, should not be given credence and probative weight. On the other hand, the Office of the Solicitor General (OSG) maintains that the prosecution was able to prove all the elements of the crime charged. It asserts that the first element was proved through Pacitas conviction for theft in Criminal Case No. 2005; the second element was shown to exist with moral certainty via the testimony of Macario identifying the petitioner as the one who bought the subject pieces of jewelry, corroborated by the testimony of PO1 Roldan, Jr.; and, the third element was proven by evidence showing that the petitioner had been in the business of buying and selling jewelry for a long period of time, and that he had the expertise to know the correct market price of the jewelry he purchased from Macario and Pacita. The OSG asserts that the petitioner must have been put on his guard when the subject pieces of jewelry worth P655,000 were sold to him for only P50,000.30 It contends that the inconsistencies in the testimonies of the prosecution witnesses referred to by the petitioner were minor, and could not be made as a basis to disregard the trial courts findings of facts, which are entitled to great respect and credit.31 The Ruling of the Court The petition is meritorious. The essential elements of the crime of fencing are as follows: (1) a crime of robbery or theft has been committed; (2) the accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the crime of robbery or theft; (3) the accused knew or should have shown that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and, (4) there is, on the part of the accused, intent to gain for himself or for another.32 Fencing is malum prohibitum, and P.D. No. 1612 creates a prima facie presumption of fencing from evidence of possession by the accused of any good, article, item, object or anything of value which has been the subject of robbery or theft, and prescribes a higher penalty based on the value of the property.33 The stolen property subject of the charge is not indispensable to prove fencing. It is merely

corroborative of the testimonies and other evidence adduced by the prosecution to prove the crime of fencing. We agree with the trial and appellate courts that the prosecution mustered the requisite quantum of evidence, on the basis of the testimony of Jovita, that Pacita stole the subject jewelry from the locked cabinet in the main house of her then employer. Jovita testified on her ownership of the jewelry and the loss thereof, and narrated that Pacita had access to the cabinet containing the pieces of jewelry. We, however, agree with the petitioner that the decision of the RTC of Rizal, Branch 76, in Criminal Case No. 2005 convicting Pacita of theft does not constitute proof against him in this case, that Pacita had, indeed, stolen the jewelry.There is no showing that the said decision in Criminal Case No. 2005 was already final and executory when the trial court rendered its decision in the instant case. On the second element of the crime, the trial and appellate courts held that the prosecution proved the same beyond reasonable doubt based on the testimony of Jovita during the trial in Criminal Cases Nos. 1992 and 2005; that Pacita had confessed to Jovita that she sold some of the jewelry to the petitioner; the joint affidavit of PO1 Roldan, Jr. and SPO1 Peralta on their investigation of the complaint of Jovita; the testimony of PO1 Roldan, Jr. relating to said investigation; the RTC decision in Criminal Cases Nos. 1992 and 2005; the testimonies of Pacita and her brother Macario during the preliminary investigation of Criminal Case No. 9213841 before the MTC of Meycauayan as shown by the transcripts of the stenographic notes taken during the proceedings; the supplemental sworn statement of Pacita on August 23, 1992 in Camp Crame, Quezon City, and, the testimony of Macario before the trial court. However, we find and so hold that First. Jovitas testimony in Criminal Cases Nos. 1992 and 2005, that Pacita had confessed to her that she had sold four pieces of jewelry to the petitioner, is inadmissible in evidence against the latter to prove the truth of the said admission. It bears stressing that the petitioner was not a party in the said criminal cases. The well-entrenched rule is that only parties to a case are bound by a judgment of the trial court. Strangers to a case are not bound by the judgment of said case.34 Jovita did not reiterate her testimony in the said criminal cases during the trial in the court a quo. The prosecution did not present Pacita as witness therein to testify on the admission she purportedly made to Jovita; hence, the petitioner was not able to cross-examine Pacita. The rule is that the acts or declarations of a person are not admissible in evidence against a third party.35 Second. The testimony of Pacita during the preliminary investigation in Criminal Case No. 9213841, as well as her supplemental affidavit, is, likewise, inadmissible against the petitioner since Pacita did not testify in the court a quo. The petitioner was, thus, deprived of his constitutional right to confront and cross-examine a witness against him. Third. The testimony of PO1 Roldan, Jr., that on August 23, 1992, Pacita pointed to the petitioner, while the latter was having a drinking spree, as the person who bought the subject jewelry from her, is indeed admissible in evidence against the petitioner. It is, likewise, corroborative of the testimony of Macario. However, such testimony is admissible only to prove such fact - that Pacita pointed to the petitioner as the person to whom she sold the subject jewelry; it is inadmissible to prove the truth of Pacitas declaration to the policemen, that the

petitioner was the one who purchased the jewelry from her. It must be stressed that the policemen had no personal knowledge of the said sale, and, more importantly, Pacita did not testify in the court a quo. Indeed, the petitioner was deprived of his right to cross-examine Pacita on the truth of what she told the policemen. Fourth. On the other hand, the testimony of Macario during the preliminary investigation of Criminal Case No. 92-13841 is admissible in evidence against the petitioner since he testified for the prosecution and was cross-examined on his testimony during the preliminary investigation. In fine, the only evidence of the prosecution to prove that the petitioner purchased the jewelry from Macario and Pacita are the following: the testimony and affidavit of PO1 Roldan, Jr.; and, the testimony of Macario during the preliminary investigation and trial in the court a quo. Although the well-entrenched rule is that the testimony of a single witness is sufficient on which to anchor a judgment of conviction, it is required that such testimony must be credible and reliable.36 In this case, we find the testimony of Macario to be dubious; hence, barren of probative weight. Macario admitted when he testified in the court a quo that his testimony during the preliminary investigation in Criminal Case No. 92-13841 and his testimony in the court a quo were inconsistent. He even admitted that some portions of his testimony on direct examination in the court a quo were inconsistent with his testimony on cross-examination and on re-direct examination. These admissions are buttressed by the records of the case, which show that such inconsistencies pertained to material points and not merely to minor matters. Thus, during the preliminary investigation in Criminal Case No. 92-13841, Macario admitted that on October 10, 1991, he and his sister Pacita sold two rings and one bracelet to the petitioner for P25,000, while in November 1991, he and Pacita sold a pair of earrings to the petitioner for P25,000. On direct examination in the court a quo, Macario testified that he and Pacita sold the earrings to the petitioner in May 1992, not in November 1991, and only for P18,000. On cross-examination, Macario testified that he and his sister Pacita went to the petitioners shop in Meycauayan, Bulacan and sold the subject jewelry on both occasions. On further cross-examination, Macario changed his testimony anew, and declared that he sold the jewelry to the petitioner for P18,000 and not P25,000; only to change his testimony again, and declare that he sold the jewelry for P25,000. However, Macario testified during the preliminary investigation in Criminal Case No. 92-13841 that when he transacted with the petitioner for the second time, he was with a friend, and not with his sister Pacita. On redirect examination, Macario declared that in October 1991, he and Pacita sold four (4) pieces of jewelry, namely, two rings, one bracelet and a pair of earrings, contrary to his testimony on direct examination. He also testified that he and his sister sold the earrings in November 1991. Because of the contradicting accounts made by Macario, the court made the following observations: Court q According to you, you were "nalilito" but you gave the correct answer, you are not "nalilito" here but you gave the wrong answer. Bakit ganoon, sabi mo nalilito ka roon (sic) pero ang sagot mo pala tama. Dito hindi ka naman nalilito, bakit mali. Bakit ka nalilito eh tama iyong P25,000.00. Hindi ka nalilito, mali ang sabi mo. a Because I am scare[d] here thats why I gave the wrong answer.

q You better think about it. a I was confused, Sir.37 The testimonies of Macario are even contrary to the averments of the Information, that the petitioner received the said jewelry from Pacita. Assuming, for the nonce, that the petitioner purchased the said jewelry from Macario, there is no evidence on record that the petitioner knew that they were stolen. Significantly, even Macario did not know that the jewelry was stolen. He testified that his sister Pacita told him before he sold the jewelry to the petitioner that they belonged to a friend of hers. Atty. Lerio Q At that time you and your sister sold those jewels to "Mang Erning" did do you know already [that] it was Mrs. Rodriguez who is the owner of those jewels? A No, Sir, I do not know. Q And who do you know was the owner of that jewels and that time you and your sister sold those jewels to "Mang Erning"? A According to my sister, it is (sic) owned by a friend of hers. Court Q How did you come to know of this "Mang Erning?" A Only at that time when we brought the jewels. Q But previous to that, do you know him? A No.38 Macario learned, after the case against Pacita had already been filed in the trial court, that the jewelry was, after all, owned by Jovita. However, he failed to inform the petitioner that the said jewelry was stolen. Following is the testimony of Macario: Atty. Lerio Q When you learned that those jewels were owned by Mrs. Rodriguez, did you, if at all, informed (sic) "Mang Erning" about it? Court Q No basis, when did you come to know that the jewels belong to Mrs. Rodriguez? A In 1992, when my sister already had a case.

Q What did you do when you come (sic) to know about that? A I was not able to do anything but just to help my sister with her case and also to help the case of Mrs. Rodriguez. Atty. Lerio Q After that, after knowing that these jewels are (sic) owned by Mrs. Rodriguez, was there any occasion where you (sic) able to inform "Mang Erning" that those jewels were owned by Mrs. Rodriguez? A No more, I have no more time.39 The prosecution cannot even validly argue that the petitioner should have known which pieces of jewelry were stolen, considering that Macario was selling the same for P50,000 when the said pieces stolen from Jovita were alleged to be worth P655,000. This is so because the prosecution failed to adduce sufficient competent evidence to prove the value of the said stolen articles. The prosecution relied solely on the bare and uncorroborated testimony of Jovita, that they were worth P655,000: Atty. Lerio Q Now, will you tell this Court some of those jewels which you own? A I own several jewels and the one (sic) in question are: 1-pair of earrings, diamond heart-shaped P400,000.00; 1-ring, heart-shaped diamond worth P100,000.00; 1bracelet, white gold full of stones, diamond worthP150,000.00; 1-diamond ring with small stones worth P5,000.00. So, all in all, the jewelry is (sic) worthP665,000.00.40 When asked by the trial court to declare the present market value of the stolen jewelry, Jovita merely declared: Atty. Lerio Q Now again, when did you acquire those jewels if you can still remember? A I remember several years ago when my husband is (sic) alive. Court Q Please tell the court, [is] the market value of the jewels the same today? A No, that is (sic) the market value several years ago. Q So, can you explain [if] the market value, more or less, [is] the same today? A No. The price, if we will appraise now, is much bigger.41

When required by the petitioner, through counsel, to bring to the court any receipts reflecting the price of the pieces of jewelry to show that she purchased the same, Jovita answered that she had no such receipts. Thus: Court Q You bought it from [a] private person? A Yes, Your Honor. Atty. Bernal Q What then is your proof that you bought these jewelries (sic) from a private person? Atty. Lerio That was already answered, Your Honor. She said, no receipt.42 In People v. Paraiso,43 we cited our ruling in People v. Marcos44 that an ordinary witness cannot establish the value of jewelry, nor may the courts take judicial notice of the value of the same: [A]nd as we have ruled in the case of People vs. Antonio Marcos, an ordinary witness cannot establish the value of jewelry and the trial court can only take judicial notice of the value of goods which are matters of public knowledge or are capable of unquestionable demonstration. The value of jewelry is not a matter of public knowledge nor is it capable of unquestionable demonstration and in the absence of receipts or any other competent evidence besides the self-serving valuation made by the prosecution, we cannot award the reparation for the stolen jewelry.45 It bears stressing that, in the absence of direct evidence that the accused had knowledge that the jewelry was stolen, the prosecution is burdened to prove facts and circumstances from which it can be concluded that the accused should have known that the property sold to him were stolen. This requirement serves two basic purposes: (a) to prove one of the elements of the crime of fencing; and, (b) to enable the trial court to determine the imposable penalty for the crime, since the penalty depends on the value of the property; otherwise, the court will fix the value of the property at P5.00, conformably to our ruling in People v. Dator:46 In the absence of a conclusive or definite proof relative to their value, this Court fixed the value of the bag and its contents at P100.00 based on the attendant circumstances of the case. More pertinently, in the case of People vs. Reyes, this Court held that if there is no available evidence to prove the value of the stolen property or that the prosecution failed to prove it, the corresponding penalty to be imposed on the accused-appellant should be the minimum penalty corresponding to theft involving the value of P5.00.47 IN VIEW OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CR No. 19110 affirming the Decision of the Regional Trial Court of Malolos, Bulacan, Branch 22, is REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime of violating P.D. No. 1612 for the prosecutions failure to prove his guilt beyond reasonable doubt.

SO ORDERED. Puno, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur.

Footnotes
1

Penned by Associate Justice Bennie A. Adefuin-dela Cruz, with Associate Justices Salome A. Montoya and Wenceslao I. Agnir, Jr., concurring.
2

Penned by Judge Candido R. Belmonte. Records, p. 2. TSN, 18 August 1993, p. 4. TSN, 19 October 1993, p. 3. TSN, 20 May 1994, p. 4. Id. at 8. TSN, 29 March 1995, p. 5. TSN, 6 July 1994, p. 7. Id. at 13-14. Id. at 9-10. TSN, 24 November 1993, p. 10. Exhibit "C." Presided by Judge Jose C. Reyes, Jr. Exhibit "A." Exhibit "F." Exhibit "D." TSN, 29 March 1995, p. 5. Id. at 7.

10

11

12

13

14

15

16

17

18

19

20

Id. at 8. TSN, 19 May 1995, p. 7. TSN, 29 March 1995, p. 20. Id. at 10. Id. at 12. Id. at 24. Records, pp. 451-452. CA Rollo, pp. 43-44. Id. at 125. Rollo, p. 13. Id. at 54-55. Id. at 58.

21

22

23

24

25

26

27

28

29

30

31

32

Capili v. Court of Appeals, 338 SCRA 45 (2000); Tan v. People, 313 SCRA 220 (1999) citing Dizon-Pamintuan v. People, 234 SCRA 63 (1994).
33

Dizon-Pamintuan v. People, supra. Padilla v. Court of Appeals, 370 SCRA 208 (2001). Rule 130, Section 28 of the Rules of Evidence. People vs. Araneta, 335 SCRA 1 (2000); People vs. Lotoc, 307 SCRA 471 (1999). TSN, 6 July 1994, pp. 359-360. (Italics, ours) TSN, 20 May 1994, p. 12. Id. at 13. TSN, 1 August 1989, pp. 5-6. TSN, 18 August 1993, p. 7. TSN, 19 October 1993, p. 16. 319 SCRA 422 (1999).

34

35

36

37

38

39

40

41

42

43

44

308 SCRA 660 (1999). People v. Paraiso, supra. 344 SCRA 236 (2000). Ibid.

45

46

47