FIRST DIVISION
[G.R. No. 212770. October 19, 2015.]
CHRISTOPHER BACONAWA Y TAMESES, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated October 19, 2015 which reads as follows:
"G.R. No. 212770 (Christopher Baconawa y Tameses1 v. People of the Philippines). — The letter dated July 13, 2015 of the Judicial Records Division, Court of Appeals, Manila, transmitting the Court of Appeals rollo and original records in CA-G.R. CR No. 35017 consisting of one (1) folder with transcript of stenographic notes is NOTED.
We resolve this Petition 2 for Review on Certiorari assailing the Decision 3 dated 5 September 2013 and Resolution 4 dated 20 May 2014, issued by the Court of Appeals (CA) Third Division in CA-G.R. CR No. 35017.
THE ANTECEDENT FACTS
Petitioner Christopher Baconawa y Tameses a.k.a. "Penpen," along with seven (7) co-accused Jovy Mones, Allan Villadares, Salvador Valencia a.k.a. "Badong", Jonathan Valencia a.k.a. "Katang", Boomer Lachica, Roderick Sardido a.k.a. "Odek," and Roberto Sardido, was charged with the crime of theft under Article 308 of the Revised Penal Code in an Information, which reads:
That on or about the 16th of January 2005, in the Municipality of Dasmariñas, Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to gain and without the knowledge and consent of the owner thereof, did then and there, willfully, unlawfully and feloniously take, steal and carry away Ninety four (94) meters of PLDT Aerial Cable size 1212 x 0.4 gauge with an estimated amount of more or less ONE MILLION ONE HUNDRED THOUSAND PESOS (P1,100,000.00), Philippine Currency, belonging to Philippine Long Distance Telephone Co. represented by Vicente B. Della, to the damage and prejudice of the said company.
CONTRARY TO LAW. 5
Petitioner and co-accused Jovy Mones, Boomer Lachica, and Roberto Sardido were arrested while the others remained at large. 6 Baconawa posted his surety bond through the Industrial Insurance Company, Inc. and was provisionally released on 20 February 2006. 7 Duly assisted by counsel de oficio, Baconawa, Mones, Lachica and Sardido pleaded not guilty to the charge on 3 May 2006. 8 Jovy Mones also posted bond through Far Eastern Surety and Insurance Company on 29 November 2006 and was temporarily released. 9 Meanwhile, Roberto Sardido posted his bail bond through South Sea Insurance Co., Inc. and was ordered to be temporarily released on 18 December 2006. 10 Lachica, however, remained in the custody of the Dasmariñas City Jail since 30 January 2005. 11
VERSION OF THE PROSECUTION
The facts according to the prosecution are summarized by the CA as follows:
Mr. Vicente Della, security investigator for PLDT, testified that he was at his home at around 2:45 o'clock [sic] in the morning on 16 January 2005 when he received a report regarding the theft of some PLDT aerial cable located along Abad Santos Avenue, Summerwind Subdivision, Salitran 3, Dasmariñas, Cavite. He immediately proceeded to the said area where he recovered about a [sic] one (1) meter long aerial cable as well as a steel saw that had been used in cutting the cable. He stated though that he had no personal knowledge about the circumstances of the theft and claimed that the cost of the stolen PLDT aerial cable amounted to 1.1 million pesos.
Mr. Ronel Pacot testified that on 16 January 2005 he was the guard on duty at the premises of the PLDT office in Dasmariñas, Cavite. At around 2:45 in the morning, a cable alarm went off at the PLDT office. The said alarm indicated the problem area where the subject aerial cable was installed. Subsequently, he was tasked to investigate the incident. Pacot's testimony was corroborated by Mr. Glenn Sona, a PLDT roving security patrol officer. He testified that after the cable alarm sounded off, they immediately proceeded to the area where the alarm was triggered. As soon as they arrived at Summerwind Subdivision, Salitran 3, Dasmariñas, Cavite, they noticed [petitioner] in the act of cutting the aerial cables into short pieces with a saw. The cables had been taken down from the wire post and the accused just returned to cut the cable into shorter pieces. After they apprehended [petitioner] Baconawa, they brought him to the PLDT office and waited for Mr. Della to arrive. Thereafter, they proceeded to the Dasmariñas police station. Finally, Mr. Edgar Francisco testified as to attorney's fees. 12 CAIHTE
VERSION OF THE DEFENSE
To exculpate themselves from liability, petitioner and co-accused interposed the defense of denial. Their version of the facts as summarized by the CA is as follows:
At around 2:00 o'clock [sic] in the morning, on 16 January 2005, Baconawa was on his way home from a drinking spree at his cousin's house. As soon as he was about to enter the Summerwind Subdivision, he noticed two (2) men riding a motorcycle who suddenly approached him. They pointed their guns at him as they forced him to ride his motorcycle. Later, he was brought to the PLDT office in Dasmariñas, Cavite, and as soon as they arrived at said office, he was made to admit to the theft of the PLDT cable wires. Despite his plea, they threatened to file charges against him if he would not admit that he stole the subject cable wires. Despite his plea, they threatened to file charges against him if he would not admit that he stole the subject cable wire. At the office, a piece of cable wire was shown to him and then he was brought to the police station.
Lachica testified that while he was eating in a canteen on 09 November 2005 at around 10:00 o'clock [sic] in the morning, police officers arrested him. Initially, he was told that the Vice Mayor would want to talk to him, and so he went with the police officers. Inside the vehicle, the police officers compelled him to divulge the whereabouts of certain people whom he did not know. Thereafter, the police officers brought him to the station and detained him for stealing the subject PLDT cable wires. Lachica insisted that at around 2:45 o'clock [sic] in the morning on 16 January 2005, he was at his father's house in Golden City, Dasmariñas, Cavite.
Jovy Mones recalled that in the early morning of 02 November 2005, he was drinking with some of his relatives at the public cemetery. On said day, he was arrested by some barangay officers in Dasmariñas, Cavite including his relatives and then they were brought to the municipal hall of the town. To his surprise, he was charged with possession of marijuana, and when his mother was about to bail him out, a case for theft was filed against him. He was consequently detained and met Baconawa in jail. Mones asked Baconawa why the latter had implicated him in the theft, but Baconawa could only tell him that he was tortured at the PLDT office, so he had to cry out names, including his name. Mones recalled that he was in his house at Summerwind Phase 3, Dasmariñas, Cavite at around 2:45 o'clock [sic] in the morning of 16 January 2005.
Roberto Sardido narrated that he and his live-in partner were sleeping in his house located at Block 15, Lot 5, Sto. Cristo, Dasmariñas, Cavite at the time of the incident. But on 04 November 2005, he was arrested by virtue of a warrant of arrest for a crime that he did not commit. He was then shuttled off to the police station. 13
THE RULING OF THE RTC
The lower court found "the defenses of denial and alibi by the accused weak and unavailing against the strength of the credibility of the witnesses for the prosecution." 14 The lower court further stated:
The accused were all positively identified by the PLDT security guards that were already at the reported area as soon as the alarm for cable theft rang and quickly eyed the accused that were already cutting into pieces with a saw the subject PLDT aerial cable wires after it [sic] was obviously dislodged from its post. At the time the roving patrol guards have seen the accused, the latter were already in possession and control of the PLDT aerial cable wires, thus, they are presumed to be the thieves and the crime already consummated, and the accused have miserably failed to present contrary evidence that they are not the thieves that acted in concert in consummating the crime. 15
The Regional Trial Court (RTC) of Dasmariñas, Cavite, Branch 90, sitting in Imus, Cavite, rendered a Decision 16 dated 28 June 2011. The dispositive portion reads:
WHEREFORE, premises considered, the Court finds the accused Boomer Lachica, Jovy Mones, Roberto Sardido and Christopher Baconawa y Tameses "guilty" beyond reasonable doubt of the crime of simple theft, and considering the provisions of the Indeterminate Sentence Law, and there being neither aggravating nor mitigating circumstance attending the commission of the offense, hereby sentences each of the said accused to suffer the penalty of six (6) years and one (1) day of prision correccional as the minimum to ten (10) years of prision mayor as the maximum and to indemnify the Philippine Long Distance and Telephone Company (PLDT) the amount of Php1.1 million pesos by way of actual damages.
In the meantime, the case against the other accused that are still at large is sent to the archives.
Costs against accused.
SO ORDERED. 17
The judgment of conviction was promulgated in open Court on 13 September 2011 in the presence of the private complainant's counsel, petitioner Baconawa, co-accused Lachica, and Mones, while the other accused remained at large. 18 The promulgation of judgment insofar as accused Robert Sardido was reset because he was not properly notified. 19 DETACa
The promulgation of judgment as to co-accused Sardido was eventually made on 11 April 2012 in his absence but after notice and upon motion of prosecution. 20 Subsequently, a warrant of arrest was issued for the arrest of Sardido for the service of his sentence and a copy of the decision was furnished him at his last known address. 21
Petitioner Baconawa, along with co-accused Mones and Lachica filed a timely notice of appeal. 22 In their Brief, 23 Baconawa, Mones, and Lachica assigned as error on the part of the trial court to have allegedly found them guilty despite the failure of the prosecution to prove their guilt beyond reasonable doubt and for disregarding their version of the facts. 24
In its Brief, 25 the People of the Philippines through the Office of the Solicitor General, argued that the prosecution was able to prove the guilt of appellants beyond reasonable doubt. 26 The prosecution, however, made a recommendation for the modification of the penalty imposed by the lower court saying the minimum period should be prision mayor in its medium period or 8 years and 1 day to 10 years. 27
Pending appeal, Baconawa and Mones were allowed to post bail and were provisionally released from prison while Lachica was detained at the New Bilibid Prison. 28
THE RULING OF THE CA
The appellate court held that the defense of alibi cannot prevail over the positive identification of the accused-appellant; hence, the positive assertions of the prosecution witnesses cannot be overcome by Baconawa's defense of denial or alibi. 29 The witnesses for the prosecution positively identified Baconawa in the act of cutting the cable wires when they apprehended him while Baconawa's cohorts fled the scene. 30
However, the appellate court was not convinced that the identities of Mones and Lachica, as co-conspirators of Baconawa, had been sufficiently established by the evidence on record and that the trial court had merely concluded Mones' and Lachica's participation on the basis of speculation and conjecture; hence, there is therefore reasonable doubt that they committed the crime charged against them. 31
The CA rendered the assailed Decision affirming that of the RTC, but with modification as follows:
WHEREFORE, the appealed decision of the trial court dated 28 June 2011 is accordingly MODIFIED. Accused-appellant Christopher Baconawa is GUILTY beyond reasonable doubt of the crime of THEFT under Article 308 of the Revised Penal Code. He is sentenced to suffer the penalty of imprisonment within the range of six (6) years and one (1) day as minimum to 16 years, as maximum. Furthermore, he is ordered to indemnify private complainant in the amount of P1,100,000.00. Because of reasonable doubt, accused-appellants Jovy Mones and Boomer Lachica are hereby ACQUITTED. The Director, Bureau of Corrections is ordered to release accused-appellant Boomer Lachica immediately unless he is held for any other lawful cause. The bond posted by accused Jovy Mones for his provisional liberty is hereby ordered cancelled and his bondsman is relieved of his obligation therefrom.
IT IS SO ORDERED. 32
Baconawa filed his Motion 33 for Partial Reconsideration arguing that there was no eyewitness to the actual cutting of the aerial cable from its main post and this is tantamount to failure of the prosecution to prove the first element which is the taking of personal property; 34 that his conviction was founded merely on circumstantial evidence; 35 and that his defense of denial and alibi should be given weight, because despite vigorous cross-examination, the prosecution failed to elicit any inconsistency from him. 36
The CA, however, found his motion devoid of merit and denied it in a Resolution dated 20 May 2014. 37
Hence, this Petition in which petitioner reiterates that not all the elements of the crime of theft were duly proven and arguing once again that the cutting of the wires on the ground does not equate with the basic element of theft, which is the taking of personal property. 38
In a Resolution 39 dated 8 October 2014, the Court resolved to require respondent to comment. Respondent filed its Motion 40 for Extension of Time to file Comment asking for a period of 60 days within which to file Comment or until 30 January 2015, which motion was granted by the Court in its Resolution 41 dated 2 February 2015. Respondent eventually filed its Comment 42 dated 23 January 2015 which this Court noted in its Resolution 43 dated 8 July 2015.
Respondent argues that the questions being raised by petitioner refer to factual matters which are not the proper subjects of a petition for review on certiorari and that the appellate court did not err in sustaining the conviction of the petitioner as the prosecution has proven his guilt beyond reasonable doubt. 44
THE RULING OF THIS COURT
We sustain the conviction of petitioner of the crime of theft but we shall have to modify the penalty imposed upon him.
Well-settled is the rule that only questions of law may be raised in a petition for review before this Court. This Rule, however, is not without exceptions, such as: (1) when the findings of a trial court are grounded entirely on speculation, surmises or conjectures; (2) when a lower court's inference from its factual findings is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion in the appreciation of facts; (4) when the findings of the appellate court go beyond the issues of the case, run contrary to the admissions of the parties to the case, or fail to notice certain relevant facts which, if properly considered, will justify a different conclusion; (5) when there is a misappreciation of facts; (6) when the findings of fact are conclusions without mention of the specific evidence on which they are based, are premised on the absence of evidence, or are contradicted by evidence on record. 45 aDSIHc
The instant case provides for the exercise of judicial review under the sixth exception.
Article 308 of the Revised Penal Code provides:
Art. 308. Who are liable for theft. — Theft is committed by any person who, with intent to gain but without violence against, or intimidation of persons nor force upon things, shall take personal property of another without the latter's consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner;
2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall gather cereals, or other forest or farm products.
The elements of theft are: (1) there was a taking of personal property; (2) the property belongs to another; (3) the taking was without the consent of the owner; (4) the taking was done with intent to gain; and (5) the taking was accomplished without violence or intimidation against the person or force upon things.
We find all the elements of theft present in the instant case. The pieces of evidence for the prosecution convincingly provide that petitioner was caught in the act of stealing, cutting and sawing the PLDT cable wire and when apprehended, petitioner was in possession of a one-meter cable wire and saw.
The Affidavit 46 of Arrest executed by Romel M. Pacot and Glenn J. Sona, taken as part of their direct testimony, 47 states:
That on or about 160245H January 2005 at (sic) along Abad Santos Avenue, Summerwind Subd. Bgy. Salitran 3, Dasma, Cavite, we put and place under arrest one (1) Christopher Baconawa y Tameses @Pinpin, 26, single, jobless and presently residing at #181 Sitio Munting Nayon Bgy. Salitran 3, Dasma, Cavite. That on the time and date we caught on the act herein respondent of actually stealing, cutting and sawing the PLDT telephone cable wire. We immediately proceeded and apprehended the suspect and recovered/confiscated from his possession more or less one (1) meter long PLDT FSF cable size 1212 pairs x 0.4 gauge and one (1) steel cutsaw. ATICcS
That herein suspect was caught together with seven of his cohorts who were able to get away but nonetheless identified by the respondent . . . 48 (emphasis supplied)
The testimony of Glenn Sona further provides:
Q You testified that you saw the accused in the act of sawing. How did you come to know of the fact that the accused were illegally in the act of sawing the cable in Barangay Salitran III since you were at the PLDT headquarters?
A Nandoon po kami. Kami po ang nagbabantay.
Q Let me rephrase my question. If you were in Dasmariñas PLDT Headquarters, how would you come to know of any act of cable theft which require you having to go for example from the highway.
A Nagsimula na po kaming mag-roving ng madaling araw po. Doon po kami nag stand-by sa pinutulan na cable. Mga 2:45 ng madaling araw doon naming nakita na pinuputol na po.
Q Pinuputol ng maliliit pagkatapos nilang putulin doon sa main line?
A Opo.
Q How did you come to know that the main line was already cut?
A Nakita po namin, sir. Kasi nag-alarm po doon sa Dasmariñas.
Q You mentioned an alarm, when did this alarm come to the headquarters? You testified that you were at the headquarters then you mentioned an alarm, when did the alarm start?
A Nagsimula po noon pinutol po.
Q So that alarm caused you to proceed to Barangay Salitran III?
A Yes, sir. 49 (Emphases supplied)
While petitioner insists that "the cutting of the wires on the ground does not equate with the basic element of theft, which is the taking of personal property," 50 we find enough that the property was found to be stolen, and the stolen property was found in the possession of petitioner who was not able to provide a justifiable reason why he was in possession of the one meter cable wire and saw when apprehended. The CA thus correctly applied Section 3 (j) of Rule 131 of the Rules of Court which provides that a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and doer of that act. The CA was also correct in concluding "that a portion of the stolen cable wire and steel saw to cut the said wire were found to be in possession of Baconawa; thus, the inescapable conclusion is that he was one of the perpetrators of the crime." 51
We sustain the affirmance by the CA of the RTC that petitioner was already in full possession of the cable wires prior to his apprehension. In the act of cutting the wires into shorter pieces, he had already successfully obtained physical possession of the stolen property, no matter how momentary, and thus consummated the crime of theft. It has been held that "[t]he determinative characteristic as to whether the crime of theft was produced is the ability of the actor 'to freely dispose of the articles stolen, even if it were only momentary.'" 52
Proof beyond reasonable doubt does not mean such a degree of proof as would exclude the possibility of error and produce absolute certainty. Only moral certainty is required, or that degree of proof that produces conviction in an unprejudiced mind. 53 A careful scrutiny of the records and pieces of evidence adduced by the prosecution reveals that they fully support a conviction of guilt of petitioner.
The cable alarm sounded off, indicating that cables had been taken down from the wire post. The PLDT roving security patrol officer, Glenn Sona, and the guard on duty, Ronel Pacot, immediately went to the area where the alarm was triggered. They saw petitioner in the act of cutting the cable wire into shorter pieces. And when they finally apprehended him, petitioner was found in possession of a one-meter cable wire and saw. The positive identification of petitioner by the prosecution witnesses and the other pieces of prosecution evidence indeed all point to the conclusion that petitioner is undeniably culpable.
Meanwhile, petitioner can only muster denial for his defense, saying that he was just on his way home from a drinking session — a claim which was unsubstantiated and uncorroborated. We reiterate that the defense of denial, unsubstantiated by clear and convincing evidence, is negative and self-serving and merits no weight in law. It cannot be given greater evidentiary value than the testimony of credible witnesses who testified on affirmative matters. 54
The CA and the RTC, however, diverge on the finding and conclusion of conspiracy. And on this matter, we affirm the ruling of the CA in acquitting the accused except Baconawa.
The RTC, finding all the accused guilty and in conspiracy in the commission of theft, reasoned in this wise: TIADCc
. . . The accused were all positively identified by the security guards that were immediately at the reported area as soon as the alarm for cable theft rang and quickly eyed the accused that were already cutting into pieces with a saw the subject PLDT aerial cable wires after it was obviously dislodged from its post. At the time that the roving patrol guards have seen the accused, the latter were already in possession and control of the PLDT aerial cable wires, thus, they are presumed to be the thieves and the crime already consummated, and the accused have miserably failed to present contrary evidence that they are not the thieves that acted in concert in consummating the crime. Thus, the evidence of the prosecution warrants the conviction of the accused and the maximum penalty to be imposed against them considering that the amount of the PLDT cable wires exceeds Php22,000.00. . . . 55
The CA, however, found that there was nothing in Pacot and Sona's testimonies and joint affidavit that stated that Mones and Lachica were actually seen committing the crime. The CA noted that the testimonies and the joint affidavit merely declared that Pacot and Sona caught only Baconawa cutting the cable and was in possession of the one-meter cable wire and saw while the others were able to evade arrest. The CA stressed further that even during the preliminary investigation, Pacot stated that Baconawa merely named Mones and Lachica as two of the perpetrators. The CA correctly observed that in order to convict any of the named co-principals, conspiracy among them must be proved. The CA declared:
The finding of conspiracy was premised on the purported declaration of Baconawa which implicated Mones and Lachica to the crime. This declaration, however, was later denied by Baconawa who asserted instead, that he was physically beaten and threatened in order to mention some names as his cohorts who escaped at the time he was arrested. Given the insufficiency of evidence, the prosecution has failed to overcome the presumption of Mones' and Lachica's innocence.
Granting that Baconawa actually confessed to the arresting officers that Mones and Lachica conspired with him to steal the subject cable wire, his extrajudicial confession, however, is inadmissible against them, specifically where Baconawa implicated them as his cohorts. Under Section 28, Rule 130 of the Rules of Court, the rights of a party cannot be prejudiced by an act, declaration or omission of another. Res inter alios acta alteri nocere non debet. Consequently, an extrajudicial confession is binding only on the confessant; is not admissible against his co-accused; and is considered as hearsay against them. An exception to the res inter alios acta rule is an admission made by a conspirator. Section 30, Rule 130 of the Rules of Court provides that the act or declaration of the conspirator relating to the conspiracy and during its existence may be given in evidence against the co-conspirator provided the conspiracy is shown by evidence other than such act or declaration. In order that the admission of Baconawa may be received against Mones and Lachica, it is necessary that the conspiracy be first proved by evidence other than the admission itself; second, the admission relates to the common object; and third, it has been made while the declarant was engaged in carrying out the conspiracy; as we have previously discussed, we did not find any sufficient evidence to establish the existence of conspiracy. Therefore, the purported extrajudicial confession or admission has no probative value and is inadmissible in evidence against Mones and Lachica. 56
We find no reversible error in the CA in its conclusion that the prosecution failed in proving conspiracy among the perpetrators.
Despite such conclusion, however, the CA still incorrectly sentenced Baconawa to suffer the penalty of imprisonment within the range of six (6) years and one (1) day as minimum to 16 years, as maximum and to indemnify private complainant in the amount of P1,100,000.00. This is where we modify the assailed CA decision and resolution accordingly.
The imposable penalty for the crime of theft is provided in Article 309 of the Revised Penal Code as follows:
Article 309. Any person guilty of theft shall be punished by:
1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos, but if the value of the thing stolen exceeds the latter amount the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.
2. The penalty of prision correccional in its medium and maximum periods, if the value of the thing stolen is more than 6,000 pesos but does not exceed 12,000 pesos.
3. The penalty of prision correccional in its minimum and medium periods, if the value of the property stolen is more than 200 pesos but does not exceed 6,000 pesos.
4. Arresto mayor in its medium period to prision correccional in its minimum period, if the value of the property stolen is over 50 pesos but does not exceed 200 pesos.
5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50 pesos.
6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5 pesos.
7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the circumstances enumerated in paragraph 3 of the next preceding article and the value of the thing stolen does not exceed 5 pesos. If such value exceeds said amount, the provision of any of the five preceding subdivisions shall be made applicable. AIDSTE
8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of the thing stolen is not over 5 pesos, and the offender shall have acted under the impulse of hunger, poverty, or the difficulty of earning a livelihood for the support of himself or his family.
The Information charges all the accused for theft of "Ninety-four (94) meters of PLDT Aerial Cable size 1212 x 0.4 gauge with an estimated amount of more or less ONE MILLION ONE HUNDRED THOUSAND PESOS (P1,100,000.00)." 57
However, the Affidavit 58 of Vicente P. Della marked as Exhibit "A" for the prosecution and made part of Della's testimony 59 provides:
07.T — Ano ang ninakaw ng mga taong iyong nabanggit at magkano naman ang halaga nito?
Isang pirasong PLDT aerial cable size 1212 pairs x 0.4 gauge na may habang humigit kumulang sa isang meter na aming narekober at humigit kumulang sa siyamnapu't walo na metro nito na natangay nila. Lahat lahat po ito ay nagkakahalaga ng 1.1 milyon (Php1,100,000.00). (Emphasis supplied) 60
The Joint Affidavit of Arrest executed by Ronel M. Pacot and Glenn J. Sona which was marked as Exhibit "B" for the prosecution and made part of their testimonies 61 provides that the "suspects . . . who were able to evade arrest took/carted away approximately ninety-eight (98) meters of PLDT FSF cable size 1212 pairs x 0.4 gauge." 62
Finding that the prosecution failed to prove conspiracy among the accused, we find it proper to hold Baconawa guilty only for stealing the cable wire found in his possession and not for the entire value of the thing alleged to be stolen by the others "who were able to get away." 63
Meanwhile, in proving the value of the PLDT cable wires, Vicente Della testified as follows:
Q: In your Exhibit "A" which is your sworn statement, you mentioned that the value of the cable is 1.1 Million Pesos. How did you know this Mr. Witness?
A: Base po sa ini-issue na Certification ng Cavite Business Zone.
Q: Do you have a copy of that certification?
A: Yes, sir. 64
The Certification signed by Cavite Business Zone Head Emilio L. Gregorio states that "the total cost of restoring the cut PLDT cables due to pilferage . . . is One Million One Hundred Thousand Pesos (P1,100,000.00)." (Emphasis supplied) 65
For the crime of theft, the penalty shall be based on the value of the thing stolen. 66 If the amount of the property taken was not established by an independent and reliable estimate, the Court may fix the value of the property taken based on the attendant circumstances of the case or impose the minimum penalty under Art. 309 of the RPC. 67 Considering the absence of proof of the actual value of the one-meter cable wire found in the possession of Baconawa and the variance in the estimated length of the stolen cable wire, i.e., 94 meters in the Information and 98 meters in the evidence for the prosecution, this Court thus fixes the value of the one-meter cable wire found in his possession at P11,224. 68
According to Article 309 paragraph (2) of the Revised Penal Code, if the value of the thing stolen is more than 6,000 pesos but does not exceed 12,000 pesos, the proper imposable penalty is prision correccional in its medium and maximum periods. Applying the Indeterminate Sentence Law, Baconawa should therefore suffer the indeterminate penalty ranging from six (6) months and one (1) day of prision correccional, as minimum, to four (4) years and two (2) months and one (1) day of prision correccional, as maximum.
WHEREFORE, premises considered, the assailed Decision dated 5 September 2013 and Resolution dated 20 May 2014, issued by the Court of Appeals (CA) Third Division in CA-G.R. CR No. 35017 are AFFIRMED with the MODIFICATION insofar as the penalty is concerned. Baconawa is hereby sentenced by this Court to suffer an indeterminate penalty ranging from six (6) months and one (1) day of prision correccional, as minimum, to four (4) years and two (2) months and one (1) day of prision correccional, as maximum. Furthermore, he is ordered to indemnify private complainant in the amount of eleven thousand two hundred twenty-four pesos (P11,224.00) with 6% interest per annum from the date of finality of this judgment until full payment.
SO ORDERED." PEREZ, J., on official business; VELASCO, JR., J., acting member per S.O. No. 2253 dated October 14, 2015.
Very truly yours,
(SGD.) EDGAR O. ARICHETADivision Clerk of Court
Footnotes
1. Also "Tamisis" as reflected in the COMELEC Voter's ID attached to his Petition for Review on Certiorari, p. 25.
2. Rollo, pp. 11-27.
3. Id. at 29-44; penned by Associate Justice Apolinario D. Bruselas, Jr. and concurred in by Associate Justices Rebecca de Guia-Salvador and Samuel H. Gaerlan.
4. Id. at 48.
5. Records, p. 1.
6. Rollo, p. 31.
7. Records, p. 33.
8. Rollo, p. 31.
9. Records, p. 95.
10. Id. at 124.
11. Id. at 287.
12. Rollo, pp. 31-33.
13. Id. at 32-34.
14. Id. at 67.
15. Id.
16. Id. at 64-68; penned by Executive Judge Perla V. Cabrera-Faller.
17. Id. at 68.
18. Records, p. 286.
19. Id.
20. Id. at 315.
21. Id.
22. Id. at 289.
23. Rollo, pp. 49-63.
24. Id. at 51-63.
25. CA rollo, pp. 55-68.
26. Id. at 62.
27. Id. at 65.
28. Id. at 77.
29. Id. at 78.
30. Id. at 79.
31. Id. at 83.
32. Rollo, pp. 43-44.
33. Id. at 81-85.
34. Id. at 82.
35. Id.
36. Id. at 84.
37. Id. at 48.
38. Id. at 15.
39. Id. at 93.
40. Id. at 94-97.
41. Id. at 98.
42. Id. at 99-113.
43. Id. at 114.
44. Id. at 105-109.
45. UCPB v. Looyuko, G.R. No. 156337, 28 September 2007, 534 SCRA 322, 328.
46. Records, p. 7.
47. TSN, 31 January 2007, p. 4; TSN, 28 November 2007, p. 7.
48. Records, p. 7.
49. TSN, 28 November 2007, pp. 5-7.
50. Rollo, p. 15.
51. Id. at 38.
52. Valenzuela v. People, 552 Phil. 381 (2007).
53. Revised Rules on Evidence, Rule 133, Section 2.
54. People v. Aguilar, 565 Phil. 233 (2007); People v. Castillo, G.R. No. 118912, 28 May 2004, 430 SCRA.
55. Rollo, p. 67.
56. Id. at 40-42.
57. Records, p. 1.
58. Id. at 6.
59. TSN 15 November 2006, p. 4.
60. Records, p. 6.
61. TSN 31 January 2007, p. 4 (Ronel M. Pacot); TSN 28 November 2007, p. 7 (Glenn Sona).
62. Records, p. 7.
63. Id.
64. TSN 15 November 2006, p. 7.
65. Records, p. 88.
66. People v. Moreno, 425 Phil. 526, 543 (2002).
67. Viray v. People, G.R. No. 205180, 11 November 2013 citing People v. Dator, G.R. No. 136142, 24 October 2000, 344 SCRA 222; Lozano v. People, G.R. No. 165582, 9 July 2010.
68. The amount of P11,224 is arrived at by dividing P1,100,000 by 98 meters.