SECOND DIVISION
[G.R. No. 228339. August 23, 2017.]
ROUMELL ROSELL y ALCANTARA, petitioner,vs. PEOPLE OF THE PHILIPPINES, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Second Division, issued a Resolution dated23 August 2017which reads as follows:
"G.R. No. 228339 (Roumell Rosell y Alcantara vs. People of the Philippines). — This Petition for Review 1 seeks to set aside the Decision 2 dated June 3, 2016 and Resolution 3 dated November 17, 2016 of the Court of Appeals (CA) in CA-G.R. CR No. 36646, which affirmed with modification the Decision dated September 25, 2012 of the Regional Trial Court (RTC) of Pasay City, Branch 111, in Criminal Case No. R-PSY-08-05962-CR, finding Roumell Rosell y Alcantara (petitioner) guilty beyond reasonable doubt of the crime of Qualified Theft.
Facts
On June 5, 2008, an Information was filed before the RTC charging the petitioner with the crime of qualified theft. The Information alleged that on June 4, 2008, the petitioner, a casino card-dealer, with intent to gain, and with grave abuse of trust and confidence reposed upon him by the Philippine Amusement and Gaming Corporation (PAGCOR), wilfully, unlawfully and feloniously take, steal and carry away P20,000.00 worth of casino chips belonging to PAGCOR. When arraigned, the petitioner entered a plea of "not guilty" to the charge. Trial ensued thereafter. 4
Jeby D. Seruelo (Seruelo), a PAGCOR Internal Security Supervisor at Casino Filipino, Heritage Hotel in Pasay City, testified that on June 4, 2008, at around 1:00 a.m., Chief Security Officer Efren Salapare informed him of the suspicious movements of the petitioner, a dealer assigned at Table 8, Super 6 (Baccarat), Area AB. At around 2:44 a.m., Seruelo, who was observing the petitioner from about four meters away, noticed that the latter collected the losing bets with his left hand, while holding the hem of his vest with his right hand and pinned it down on top of a P10,000.00 worth of casino chip on the chip rack in front of him. Seruelo informed Virgilio A. Pedrena (Pedrena), the Assistant Chief Security at the Casino Filipino, about the incident and they coordinated with Pit Supervisor Alejo Gutierrez (Gutierrez). 5
Gutierrez told the petitioner not to log out, but the latter still proceeded to the logging area. While writing with his left hand, the petitioner took something from his vest using his right hand and threw it inside the podium. Seruelo immediately picked up the chip. He then held the petitioner and informed him of the reason for his apprehension. They discovered that the petitioner had an adhesive tape attached to the inside of his vest, and used the tape to pin the casino chip to the hem of his vest. The casino chip taken by the petitioner was a green round chip with serial number 213511. 6 Pedrena stated that the casino chips can be exchanged for cash at the dealer's booth and are as good as cash in the casino. 7 ISHCcT
Rocell A. Legaspi, Internal Security Investigator, testified that the petitioner was brought to his office at around 3:00 a.m. to 4:00 a.m. on June 4, 2008. He asked the petitioner if it was true that he took a P10,000.00 worth of casino chip, and the latter admitted the same. He saw the used double adhesive tape attached to the inner side of the petitioner's vest. He also recovered several rolls of adhesive tape inside the petitioner's locker. During investigation, the petitioner confessed that he had been doing this for a month because of his low salary and PAGCOR's wrong policies. The petitioner admitted that he had already taken about 20 casino chips. 8
For his part, the petitioner denied the allegation against him. He stated that the accusation against him was trumped up because he and his co-worker, Mario Alvarez (Alvarez), were planning to organize a union which PAGCOR prohibits. They were also applying for a job in Macau. The petitioner explained that the vest presented was not his as it did not bear his initials. While being investigated, the petitioner signed a document containing his admission because he was told that he would be set free. However, he and Alvarez were arrested after the investigation. They were brought to the police station and were charged with taking a chip from the casino. 9
The RTC rendered a Decision on September 25, 2012 as follows:
WHEREFORE, this Court finds [the petitioner] guilty beyond reasonable doubt of qualified theft and, accordingly, sentences him to suffer the indeterminate penalty of imprisonment ranging from seven (7) years and one (1) day, as minimum, to ten (10) years and five (5) months, as maximum.
SO ORDERED.10
On appeal, the CA promulgated its Decision dated June 3, 2016, the fallo of which reads:
WHEREFORE, the appeal is DENIED. The assailed Decision and Order of the RTC are AFFIRMED with MODIFICATION in that the [petitioner] is sentenced to suffer an indeterminate penalty of Eight (8) years and One (1) day of prision mayor, as minimum, to Twelve (12) years and One (1) day of reclusion temporal, as maximum. Costs against the [petitioner].
SO ORDERED.11
The petitioner filed a motion for reconsideration. However, the CA found no new matter that would warrant a reversal of its earlier decision, and hence, denied the motion. 12
Issue
Whether the CA erred in finding the petitioner guilty beyond reasonable doubt of qualified theft.
Ruling of the Court
The petition is bereft of merit.
The well-established rule is that findings of the trial courts which are factual in nature and which involve credibility are accorded respect when no glaring errors; gross misapprehension of facts; or speculative, arbitrary and unsupported conclusions can be gathered from such findings. 13 The determination by the trial court of the credibility of witnesses, when affirmed by the appellate court, is accorded full weight and credit as well as great respect, if not conclusive effect. 14
Factual findings of the appellate courts will not be reviewed nor disturbed on appeal to this court. 15 Only questions of law may be raised in a petition for review on certiorari.16 The factual findings of the CA bind this court. 17 Although jurisprudence has provided several exceptions to these rules, exceptions must be alleged, substantiated, and proved by the parties so this Court may evaluate and review the facts of the case. In this case, the petitioner did not show that his petition falls under any of the recognized exceptions.
The elements of Qualified Theft, punishable under Article 310, 18 in relation to Article 309, 19 of the Revised Penal Code (RPC), as amended, are:
(a) the taking of personal property;
(b) the said property belongs to another;
(c) the said 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. 20
In this case, there is a confluence of all the foregoing elements. The prosecution was able to prove beyond reasonable doubt that the casino chip worth P10,000.00 with serial no. 213511 taken by the petitioner does not belong to him but to PAGCOR. He took the chip without PAGCOR's consent and with abuse of confidence by taking advantage of his position as a casino card dealer entrusted with casino chips. It was this trust and confidence which he exploited to enrich himself to the damage and prejudice of PAGCOR.
The petitioner argues that he was arraigned under a defective criminal information which alleged that he stole two casino chips but the evidence proved otherwise. The Court, however, is convinced that the argument of the petitioner is a mere afterthought after he was convicted of the crime. If indeed the petitioner had been improperly charged, he should have filed a motion to quash before he entered his plea. The petitioner's failure to avail himself of the proper remedy is deemed a waiver of his objection to the information. Failure to raise any ground of a motion to quash before they plead is deemed a waiver of any of their objections. CAacTH
Section 9 of Rule 117 of the Rules of Court provides:
Sec. 9. Failure to Move to Quash or to Allege Any Ground Therefor. — The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any objections except those based on the grounds provided for in paragraphs (a), (b), (g), and (i) of Section 3 of this Rule.
With regard to the penalty imposed, the CA explained that applying the Indeterminate Sentence Law, and there being no mitigating or aggravating circumstance, the maximum shall be the medium period of prision mayor in its maximum period to reclusion temporal in its minimum period or within the range of eleven (11) years, six (6) months and twenty-one (21) days to thirteen (13) years, one (1) month and ten (10) days. Thus, the CA correctly modified the penalty imposed by the RTC to eight (8) years and one (1) day of prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal, as maximum.
WHEREFORE, the petition is DENIED. Accordingly, the Decision dated June 3, 2016 and Resolution dated November 17, 2016 of the Court of Appeals in CA-G.R. CR No. 36646 is hereby AFFIRMED." (Caguioa,J., on leave.)
Very truly yours,
MA. LOURDES C. PERFECTODivision Clerk of Court
By:
(SGD.) TERESITA AQUINO TUAZONDeputy Division Clerk of Court
Footnotes
1.Rollo, pp. 8-17.
2. Penned by Associate Justice Normandie B. Pizarro, with Associate Justices Samuel H. Gaerlan and Ma. Luisa C. Quijano-Padilla, concurring; id. at 18-32.
3.Id. at 33-34.
4.Id. at 19-20.
5.Id. at 20-21.
6.Id. at 21.
7.Id. at 23.
8.Id. at 21-22.
9.Id. at 23.
10.Id. at 24-25.
11.Id. at 31.
12.Id. at 33-34.
13.People v. Presas, 659 Phil. 503, 511 (2011).
14.People v. Sabadlab, 679 Phil. 425, 438 (2012).
15.Pascual v. Burgos, G.R. No. 171722, January 11, 2016, 778 SCRA 189, 205.
16. RULES OF COURT, Rule 45, Section 1.
17.Bank of the Philippine Islands v. Leobrera, 461 Phil. 461, 469 (2003).
18. Art. 310.Qualified theft. — The crime of qualified 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 coconut taken from the premises of the 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.
19. Article 309.Penalties. — 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 property 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 in 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.
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.
20.Engr. Zapanta v. People, 707 Phil. 23, 31 (2013).