People v. Calda

SECOND DIVISION

[G.R. No. 227876. December 1, 2021.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.VICTOR BOYCE CALDA, accused-appellant.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Second Division, issued a Resolution dated01 December 2021which reads as follows: HTcADC

"G.R. No. 227876 (People of the Philippines v. Victor Boyce Calda). — This is an appeal 1 from the Court of Appeals (CA) Decision 2 dated October 23, 2015 in CA-G.R. CR-HC. No. 06286 which affirmed the Decision 3 dated March 25, 2013 of Branch 134, Regional Trial Court (RTC), Makati City in Criminal Case Nos. 09-2408 and 09-2409 finding Victor Boyce Calda (accused-appellant) guilty of Qualified Theft as defined and penalized under Articles 309 and 310 of the Revised Penal Code (RPC); and violation of Section 9 (c) of Republic Act No. (RA) 8484, otherwise known as the "Access Devices Regulation Act of 1998."

The Antecedents

Accused-appellant was charged in two separate Informations 4 which read as follows:

Criminal Case No. 09-2409 [violation of Section 9(c) of

During the period from February 2008 to October 2008, in the City of Makati, the Philippines, the accused being employed as customer service representative of JUH Corporation, a corporation duly assigned by Brastel Co., Ltd. to operate as customer service center in the Philippines, and as such had access to customers' confidential data, such as card number, access code, personal identification number and airtime load credit balance, with intent to gain and to defraud complainant and without the prior request of complainant's clients, did then and there willfully, unlawfully, and feloniously effect the transfer of airtime load credits of the customers' accounts to various Philippine mobile phones totaling to ¥3,506,080 or its peso equivalent of P1,753,040, by accessing various clients accounts thru their access code, personal identification number, and card number on file with JUH Corporation, to the damage and prejudice of Brastel Co., Ltd., herein represented by Jose Maria Augusto Cosio, as the latter subsequently reimbursed and/or reloaded airtime credits to the accounts of their customers.

CONTRARY TO LAW. 5

Criminal Case No. 09-2408 [Qualified Theft]

During the period from February 2008 to October 2008, in the city of Makati, the Philippines, the accused being employed as customer service representative of JUH Corporation, a corporation assigned by Brastel Co., Ltd. to operate as customer service center in the Philippines, and as such had access to customers' confidential data, such as card number, access code, personal identification number and airtime load credit balance, with intent to gain and grave abuse of confidence, did then and there willfully, unlawfully, and feloniously effect the transfer of airtime load credits of the customers' accounts to various Philippine mobile phones via Brastel's Cyberservice totaling to ¥3,506,080 or its peso equivalent of P1,753,040, without the consent and knowledge, and to the damage and prejudice of Brastel Co., Ltd., herein represented by Jose Maria Augusto Cosio, as the latter subsequently reimbursed and/or reloaded airtime credits to the accounts of their customers.

CONTRARY TO LAW. 6

When arraigned, accused-appellant pleaded not guilty to the charges. 7

Trial ensued. 8

Version of the Prosecution

The prosecution presented as witnesses the following: (1) Jose Maria Augusto Cosio, Manager for General Affairs of JUH Corporation, (2) Atty. Julius Raboca, (3) Jeffrey Cabanday, Manager of the CARE Operations Department of Brastel Co., Ltd. (Brastel), and (4) Cecilia Fortaleza Cruz, Manager of JUH Corporation and Customer Services Representative. 9 Their testimonies are summarized as follows:

Brastel Co., Ltd. (Brastel) is a corporation in Japan engaged in the business of telecommunications. Accused-appellant was hired by JUH Corporation, Brastel's customer service support in Manila, as a customer service representative on January 4, 2008 with a monthly basic pay of P9,412.00, exclusive of P1,000.00 meal allowance.

As a customer service representative, his primary duty was to respond to customers' or clients' inquiries and complaints regarding Brastel Phonecard service. When receiving a call, the customer service representative verifies the caller's identity as an account holder by asking the latter's name, access code, PIN number, or other relevant information. The customer service representative then verities said information given by the caller with the information in a computer software program called Customer Relationship Management (CRM), a system that is connected to a database software in Japan. Upon confirming the caller's identity, the customer service representative then conducts the requested transaction, such as transferring load or credit to a prepaid mobile phone. During every transaction, the user ID of the customer service representative is necessary to access the software and the same is registered and recorded automatically in a Standard Query Language server.

In line with accused-appellant's employment with JUH Corporation, User ID No. 1401 was distinctly designated and assigned to him for purposes of Customer Relationship Management access and database identification.

Cabanday described the position of accused-appellant as one which entailed trust and confidence since it involved handling and accessing customer's accounts through the CRM Interface. As the custodian of all the records and operator of the CRM Interface as well as the attendant Internet Protocol (IP) address and IDs of the employees of the company, Cabanday also had access to the records and transactions handled by their customer service representatives. He affirmed that User ID No. 1401, was assigned to accused-appellant and that it was only the latter who was authorized to use the same.

On October 23, 2008, JUH Corporation received an Investigation Report from Brastel Japan concerning unauthorized viewings and transactions on the CRM after complaints from several customers in September 2008 about the depletion of their airtime load.

Alarmed, an investigation was conducted by JUH Corporation which centered on its customer service representatives. From the information it gathered, only three (3) of its customer service representatives had laptops with internet service connection at home, one of whom was herein accused-appellant;

JUH Corporation then reviewed all the transactions made by User ID No. 1401 and compared the same with accused-appellant's personal e-mail reports for February 28-29, 2008. JUH Corporation observed several discrepancies as accused-appellant failed to report several view in the CRM. More importantly, the Standard Query Language server traced the transactions from accused-appellant's Internet Protocol address which the latter submitted to the company. The transactions noted by JUH Corporation were unauthorized illegal transfers of airtime load from dormant accounts which amounted to approximately Three Million Five Hundred Thousand Japanese Yen (¥3,500,000) or about One Million Five Hundred Thousand Pesos (P1,500,000.00).

As reflected in his time record, accused-appellant was the only one on duty on February 28 and 29, 2008. During those dates, accused-appellant was able to access more th[a]n 2,000 accounts in one shift.

x x x Minutes of the Administrative Investigation contained accused-appellant's denial of his participation as the perpetrator of the unauthorized transfer of load credits. However, accused-appellant admitted that the computer used, with his user name and password, belonged to him, and that he was the only employee in the customer service responsible for the company's mobile phone on September 20, 2008. 10

Version of the Defense

For the defense, only accused-appellant testified as a witness. He denied knowledge of and participation in the illegal transfers of the load credits. He essentially asserted that either the Customer Relations Management was manipulated or that somebody else made the unauthorized transfers. 11

The RTC Ruling

In the Decision 12 dated March 25, 2013, the RTC found accused-appellant guilty of Qualified Theft and violation of Section 9 (c) of RA 8484.

The RTC held that all the elements of Qualified Theft are present in the case: (1) it was duly established that accused-appellant accessed the customers' accounts to obtain the access codes and personal identification number[s] (PINs) and thereafter illegally transfer the customers' airtime load credits to different recipients that were using Philippine mobile phones; 13 (2) the stolen airtime load credits belonged to Brastel's customers; (3) the intent to gain was shown by accused-appellant's act of transferring the load credits to different recipients; (4) neither the affected customers nor Brastel or JUH Corporation consented to or authorized the transactions; (5) the complained acts were accomplished without the use of violence or intimidation against persons nor of force upon things; (6) and the unlawful taking was done with grave abuse of confidence because a high degree of trust and confidence was reposed on accused-appellant, who was a Customer Service Representative and had access to the database containing confidential information. 14

Furthermore, the RTC found accused-appellant guilty of violation of Section 9 (c) of RA 8484. According to the RTC, accused-appellant's act of illegally accessing the customers' accounts to obtain the access codes and PINs which were necessary for the illegal transfers of the load credits, renders accused-appellant liable for violation of the said provision. 15

As for the actual stolen amount, the RTC found that the prosecution substantiated the amount of P205,288.45 as the sum illegally taken by accused-appellant. 16

Thus, the RTC disposed of the cases as follows:

WHEREFORE, in view of all the foregoing, the Court finds accused Victor Boyce Calda GUILTY beyond reasonable doubt in Criminal Case No. 09-2408 of the crime of Qualified theft as defined and penalized under Article 309, paragraph 1 and Article 310 of the Revised Penal Code and hereby sentences said accused to suffer the penalty of reclusion perpetua and to indemnify the offended party in the sum of Two Hundred Five Thousand Two Hundred Eighty Eight and Forty Five Centavos (P205,288.45) representing the amount taken by the accused without subsidiary imprisonment in case of insolvency.

He is likewise guilty of the crime of violation of R.A. No. 8484 in Criminal Case No. 09-2409 and is hereby sentenced to pay a fine of P400,000.00 and imprisonment of six (6) years to be served simultaneously with the severe penalty but without subsidiary imprisonment in case of insolvency.

SO ORDERED. 17

The CA Ruling

In the assailed Decision 18 dated October 23, 2015, the CA affirmed the RTC Decision. 19 It found that all the elements of Qualified Theft are present. It held, among others, that (a) the unlawful taking was shown by accused-appellant's unauthorized transfers of airtime load credits which belonged to another; (b) the intent to gain was proven by the finding that the recipients of the load credits were linked to accused-appellant's phone number; and (c) the element of grave abuse is present because accused-appellant's position of Customer Service Representative entailed a high degree of confidence inasmuch as he had access to customers accounts with the use of his user ID provided by the company. 20

Issue

The issue for the Court's resolution is whether accused-appellant's guilt for Qualified Theft and violation of Section 9 (c) of RA 8484 has been proven beyond reasonable doubt.

Our Ruling

The appeal lacks merit.

The Court finds no reason to deviate from the factual findings of the RTC, as affirmed by the CA, as nothing indicates that it overlooked, misunderstood, or misapplied the surrounding facts and circumstances of the case.

The elements of Qualified Theft are as follows: (a) the taking of personal property; (b) the property belongs to another; (c) the taking be done with intent to gain; (d) it be done without the owner's consent; (e) it be accomplished without the use of violence or intimidation against persons, nor of force upon things; and (f) it be done under any of the circumstances enumerated in Article 310 of the RPC, i.e., with grave abuse of confidence. 21

The prosecution was able to prove these elements.

There was taking of another person's property, i.e., the airtime load credits belong to the customers of Brastel which is substantiated by the investigation conducted by JUH Corporation into the unauthorized viewings and transactions on the database Customer Relations Management. JUH Corporation noticed discrepancies as accused-appellant failed to report several views in the Customer Relations Management. The transactions involved unauthorized transfers of airtime load credits amounting to P205,288.45 — the amount substantiated — to different recipients that were using Philippine mobile phones. The transactions were traced to accused-appellant's employee user ID and internet protocol address. Further, the recipients were linked to accused-appellant's phone number.

The furtive taking of personal property belonging to another raised the reasonable presumption of intent to gain. 22 The absence of the customers' consent or authorization from Brastel or JUH Corporation was shown through the customers' complaints about the depletion of their airtime load credits and the subsequent investigations conducted by Brastel and JUH Corporation. No violence or intimidation against persons, nor of force upon things was employed in the taking. The taking was done with grave abuse of confidence — accused-appellant was able to make the illegal transfers because as a Customer Service Representative, he had access to the customers' accounts through the Customer Relations Management. Indeed, his position as a Customer Service Representative was one reposed with trust and confidence.

Furthermore, the Court finds no reason to deviate from the lower courts' ruling that accused-appellant is also liable for violation of Section 9 (c) of RA 8484. Section 9 reads:

Section 9. Prohibited Acts. — The following acts shall constitute access device fraud and are hereby declared to be unlawful:

xxx xxx xxx

(c) using, with intent to defraud, an unauthorized access device:

There is no dispute that accused-appellant's act of accessing the customers' accounts to be able to make the complained transfers was unauthorized.

Now to the penalty to be imposed.

The penalties for Theft are provided in Article 309 of the RPC as follows:

ARTICLE 309. Penalties. — Any person guilty of theft shall be punished by:

1. The penalty of prisión 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 prisión mayor or reclusión temporal, as the case may be.

However, with the passage of RA 10951, 23 Article 309 of the RPC, now states:

ART. 309. Penalties. — Any person guilty of theft shall be punished by:

xxx xxx xxx

3. The penalty of prisión correccional in its minimum and medium periods, if the value of the property stolen is more than Twenty thousand pesos (P20,000) but does not exceed Six hundred thousand pesos (P600,000).

While accused-appellant committed the crime of Qualified Theft before the enactment of RA 10951, the law expressly provides for retroactivity if it is more favorable to the accused, as in the case. 24

Article 310 25 of the RPC prescribes penalties next higher by two degrees than those specified in Article 309 if the theft was committed with, among others, grave abuse of confidence.

In the case, the amount taken is P205,288.45. Under RA 10951, the penalty for Theft of an amount more than P20,000.00 but does not exceed P600,000.00 is now punishable by prisión correccional in its minimum and medium periods. Adding two (2) degrees for Qualified Theft, the penalty to be imposed is prisión mayor in its medium and maximum periods. Considering that there is no mitigating or aggravating circumstance, the maximum penalty should be imposed in its medium period, or nine (9) years, four (4) months, and one (1) day to ten (10) years and eight (8) months, as maximum. Applying the Indeterminate Sentence Law, the minimum penalty should be taken within the range of the penalty next lower to that prescribed for the crime, or in the case, within the range of prisión correccional in its maximum period to prisión mayor in its minimum period, or four (4) years, two (2) months, and one (1) day to eight (8) years.

Thus, the penalty to be imposed is five (5) years, five (5) months, and eleven (11) days, as minimum, to nine (9) years, four (4) months, and one (1) day, as maximum.

As for the violation of RA 8484, Section 10 thereof provides that an offense under Section 9 (c) is punishable with a fine of P10,000.00 or twice the value obtained by the offense, whichever is greater, and imprisonment for not less than six (6) years and not more than ten (10) years.

Under the Indeterminate Sentence Law, the maximum term of the indeterminate penalty shall not exceed the maximum fixed by special laws and the minimum shall not be less than the minimum term prescribed by the same laws. 26 Applying the Indeterminate Sentence Law, the Court deems it proper to impose the penalty of six (6) years, as minimum, to eight (8) years, as maximum.

However, the Court modifies the fine imposed by the RTC, as affirmed by the CA, in the amount of P400,000.00. Considering that the value of the money taken in the present case is P205,288.45, the Court deems it proper to increase the amount of the fine to P410,576.90 which is twice the value taken by accused-appellant.

There shall be no subsidiary imprisonment in case of insolvency considering that in addition to a fine, accused-appellant's sentence of imprisonment has a maximum of more than six (6) years. 27 This is in accordance with Act No. 1732 28 of the Philippine Commission which laid down the rules to be observed by the courts when imposing a fine as the entirely of the penalty or as a part of the punishment for any criminal offense made punishable by any special law. 29 Section 1 of Act No. 1732 states:

SECTION 1. When a fine is imposed as a whole or any part of the punishment for any criminal offense made punishable by any Act or Acts of the Philippine Commission, the court shall also sentence, the guilty person to suffer subsidiary imprisonment until the fine is satisfied: PROVIDED, HOWEVER, That nothing herein contained shall be construed to prevent the levying of execution upon the goods and property of the guilty person or the prosecution of any other civil remedy which the law may afford; but the court shall limit the time of such subsidiary imprisonment in each case in the following manner:

xxx xxx xxx.

(d) In case the sentence of the court imposes an imprisonment of more than six years in addition to a fine, no subsidiary imprisonment shall be imposed.

Finally, an interest at the legal rate of 6% perannum is imposed on the monetary award from the date of finality of this Resolution until full payment.

WHEREFORE, the appeal is DISMISSED. The Decision dated October 23, 2015 of the Court of Appeals in CA-G.R. CR-HC. No. 06286 is AFFIRMED with MODIFICATION. Accordingly, accused-appellant Victor Boyce Calda is sentenced as follows: (a) in Criminal Case No. 09-2408 for Qualified Theft, to suffer the penalty of imprisonment of five (5) years, five (5) months, and eleven (11) days, as minimum, to nine (9) years, four (4) months, and one (1) day, as maximum; and (b) in Criminal Case No. 09-2409 for violation of Section 9 (c) of Republic Act No. 8484, to suffer the indeterminate penalty of imprisonment of six (6) years, as minimum, to eight (8) years, as maximum, and to pay a fine of P410,576.90 without subsidiary imprisonment in case of insolvency.

Furthermore, the monetary award of P205,288.45 shall earn interest at the legal rate of 6% per annum from the date of finality of this Resolution until fully paid. HEITAD

SO ORDERED." (CAGUIOA, J., designated as Additional Member vice GAERLAN, J., per Raffle dated November 29, 2021; DIMAAMPAO, J., on official leave).

By authority of the Court:

(SGD.) TERESITA AQUINO TUAZONDivision Clerk of Court

 

Footnotes

1.Rollo, pp. 16-17.

2.Id. at 2-15; penned by Associate Justice Ma. Luisa C. Quijano-Padilla, with Associate Justices Franchito N. Diamante and Samuel H. Gaerlan (now a Member of the Court), concurring.

3. CA rollo, pp. 92-102; penned by Presiding Judge Perpetua Atal-Paño.

4.Id. at 10-11.

5.Id. at 10.

6.Id. at 11.

7.Id. at 3.

8.Id.

9.Rollo, p. 3.

10.Id. at 4-6.

11.Id.

12. CA rollo, pp. 91-102.

13.Id. at 98.

14.Id. at 98-99.

15.Id. at 100.

16.Id. at 100-101.

17.Id. at 102.

18.Rollo, pp. 2-15.

19. CA rollo, pp. 91-102.

20.Rollo, pp. 10-12.

21.People v. Euraba, G.R. No. 220762 (Notice), April 18, 2018.

22.Id.

23. An Act Adjusting the Amount or the value of Property and Damage on Which a Penalty is Based, and the Fines Imposed under the Revised Penal Code, approved on August 29, 2017.

24.People v. Manlao, G.R. No. 234023, September 3, 2018.

25. Article 310. Qualified Theft. — The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article, if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of a plantation, fish taken from a fishpond or fishery or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.

26.Saludares v. People, G.R. No. 248031, July 12, 2021; Section 1, Act No. 4103 —

Section 1. x x x if the offense is punished by any other law, the court shall sentence the 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.

27. See Rosares v. Director of Prisons, 85 Phil. 730, 731 (1950).

28. An Act Providing that Persons Sentenced to Fine for Criminal Offenses Made Punishable by Acts of the Philippine Commission or for Violation of the Ordinances of the City of Manila, Who Shall Fail to Satisfy the Fine Imposed, Shall be Subject to Subsidiary Imprisonment, and Providing that the Status of a Prisoner under Subdivision (d), of Section One and Subdivision (c) of Section Three of Act Numbered Seventeen Hundred and Three Shall be Determined by the Subsidiary Imprisonment in Case the Sentence Imposes a Fine Only, and Repealing Part of Section Forty of Act Numbered One Hundred and Eighty-Three, Enacted October 1, 1907.

29. Reyes, The Revised Penal Code Book 1, p. 637, 17th edition (2008).