803 Phil. 220
LEONARDO-DE CASTRO, J.:
The CCPO docketed the preliminary investigation of Demetrio's killing as I.S. No. 1428-07.SINUMPAANG SALAYSAY
AKO, si Reynaldo M. Leyva, may sapat na gulang, at nakatira sa Brgy. Real Calamba City, matapos manumpa na naayon sa batas ay nagsasalaysay ng mga sumusunod:
NA noong Hunyo 16, 2007 angoras sa pagitan ng 7:00 at 8:00 ng gabi, ako noon ay papunta sa Mercury Drug sa may lumang palengke Calamba upang bumili ng gamot para sa aking ubo pagkatapos ko manggaling sa simbahan sa bayan ng Calamba, Laguna. Habang binabaybay ko ang Gen. Lim St., Calamba City, Laguna, papuntang Mercury Drug sa lumang palengke, ako ay napadaan sa Morales-Alihan Tax Accounting Firm at doon ay napansin ko ang isang motorsiklo na nakaparada na katabi ang dalawang tao na nag-uusap. Agad kong nakilala ang dalawang tao na iyon na sina Sandy Pamplona at Florencio Morales, Jr. Nakilala ko sila dahil si Florencio Morales, Jr. ay ka-barangay ko sa Real samantalang si Sandy Pamplona naman ay madalas ko rin makita sa Real.
AKO ay nagpatuloy sa paglalakad papuntang Mercury Drug sa lumang palengke. Pagkatapos kong makabili ng gamot, ay nagpasya ako na bumili ng okoy sa may Gen. Lim St., Calamba City. Habang ako ay nandoon sa tindahan, may nakita akong kotseng kulay gray na pumarada sa isang bahay na halos katapat ng tindahan ng okoy na pinagbibilihan ko. Nakita ko ang isang babae na bumaba sa sasakyan at pumasok sa gate ng bahay. Hang sandali pa, ang lalaki na nasa kotse naman ang bumaba ngunit hindi siya pumasok sa gate ng bahay. Namukhaan ko agad ang matandang lalaki na si Atty. Demetrio Hilbero dahil maliwanag naman sa Iugar na kanyang kinatatayuan dahil sa ilaw sa bahay.
NA may bigla akong napansin na dalawang lalaki na nakasakay sa motorsiklo na biglang lumapit kay Atty. Hilbero habang siya ay nakatalikod. Isa sa mga lalaki ang biglang bumaba ng motorsiklo at bumunot ng baril at pinaputukan si Atty. Hilbero. Nakita kong bumagsak si Atty. Hilbero habang ang bumaril na lalaki ay agad surnakay sa motorsiklo, samantalang ang lalaki na naiwan sa motorsiklo ay nagpaputok rin ng baril pataas. Nakilala ko agad ang nasabing lalaki nasi Lorie Pamplona dahil siya ay kabarangay ko din sa Real. Subalit ang lalaki na bumaril kay Atty. Hilbero ay hindi ko kakilala bagamat nakita ko ang kanyang mukha at kung makikita ko muli yung burnaril ay makikilala ko siya. Agad agad na umalis ang motorsiklo na lulan ang dalawang lalaki at sinundan sila ng isa pang motorsiklo na una kong nakita na nakaparada sa Morales-Alihan Accounting Firm na nadaanan ko kanina papuntang Mercury Drug pagkatapos silang senyasan ng bumaril kay Atty. Hilbero. Sakay sa nasabing motorsiklo si Sandy Pamplona na angkas naman si Florencio Morales, Jr.
NA, dahil sa pagkabigla sa aking nasaksihan ako ay hindi agad nakakilos sa aking kinalagyan. Nakita ko na lang ang asawa ni Atty. Hilbero na nagsisigaw at humihingi ng tulong. Ilang sandali pa, may mga tao ng tumulong at isang tricycle ang dumating at doon isinakay si Atty. Hilbero.
NA, dahil sa kalituhan ay agad agad ako na pumuntang palengke at sumakay sa tricycle pauwi ng Real.
Nang ako ay makauwi sa Real, wala akong pinagsabihan na tao sa aking nasaksihan. Natakot ako sa maaaring mangyari sa akin at sa aking mga anak kung irereport ko ang nakita ko sa pulisya ng Calamba.
NA, hindi ko nireport ang aking nasaksihan sa pulisya ng Calamba sa kadahilanan na ako ay nangangamba na si Lorie Pamplona ay maari akong balikan dahil alam ko na siya ay miyembro ng KALADRO na hawak ng isang pulis Calamba.
Ngunit habang tumatagal ang araw ay ako ay nababagabag ng aking kunsyensya. Lagi kong naiisip ang aking nasaksihan. Hanggang sa ako'y magpasya na pumunta nasa pulisya at ireport ang mga nakita ko. Pinili kong puntahan ang CIDG sa Cabuyao noong Disyembre 26, 2007 at sinabi sa kanila ang aking nasaksihan. May pinakitang mga larawan ang CIDG sa akin at doon ko nakilala at itinuro ang lalaki na bumaril kay Atty. Hilbero. Sinabi sa akin ng CIDG na ang pangalan ng aking itinuro ay si Primo Lopez na isa ring miyembro ng KALADRO. Si Primo Lopez ang aking nakita na bumaril kay Atty. Hilbero kasama sina Lorie Pamplona, Sandy Pamplona, at Florencio Morales, Jr.
NA ginawa ko itong salaysay na ito upang tumestigo laban kina Primo Lopez, Lorie Pamplona, Florencio Morales, Jr., at Sandy Pamplona at iba pang sangkot sa pagpaslang kay Atty. Demetrio Hilbero.
Primo Lopez was positively identified by the eyewitness Reynaldo M. Leyva as the gunman who shot Atty. [Demetrio] Hilbero, while x x x Lorenzo Pamplona was positively identified by the same eyewitness as the driver of the motorcycle where the gunman alighted before shooting Atty. [Demetrio] Hilbero and mounted the same after the shooting and sped away.Accordingly, an Information[7] for murder against Primo and Lorenzo was filed before the Regional Trial Court (RTC) of Calamba City on May 15, 2008, docketed as Criminal Case No. 15782-2008-C.
The defense of alibi presented by Lorenzo Pamplona cannot overcome the positive, clear and convincing identification made by the eyewitness as narrated in his sworn statement. His self-serving declaration that the witness has erred in identifying him affords him no respite. Neither the sworn statement of his witness purportedly seeing him and with him in a place other than the place of the shooting at the given time nor the production and submission of pictures and/or photographs depicting that he was in Baguio City on the fateful day of the shooting incident could extricate him from being indicted. They have no probative value to overcome the testimony of the eyewitness pointing to his possible participation in the commission of the crime. The quantum of evidence necessary to put up a finding of probable cause is not proof beyond reasonable doubt or moral certainty for purposes of charging the respondent in criminal information before the courts. We can only restate the time honored principle that alibi is inherently weak and easily contrived. Furthermore, in the case before us there had been a positive identification made by the witness that x x x Primo Lopez and Lorenzo Pamplona are the perpetrators of the crime.x x x x x x x x x
With regard to x x x Sandy Pamplona and [respondent] Florencio Morales, Jr., we find no evidence had been introduced that may tend to establish their direct or indirect participation or cooperation in the commission of the crime. Even if we assume that what was stated by the witness Reynaldo M. Leyva in his sworn statement, in so far as x x x Sandy and [respondent] Florencio were concerned, was factual, still that would not be enough basis to include them in the indictment in the absence of any other independent evidence. For such alleged "thumb's-up sign" allegedly executed by the gunman Primo Lopez immediately after shooting Atty. [Demetrio] Hilbero, and which the witness perceived to be a signal intended for the other two persons on board a motorcycle, that immediately sped off does not necessarily or absolutely mean that the two persons (Sandy and [respondent] Florencio) riding in tandem on a motorcycle were co-plotters in the crime committed. We cannot reasonably draw the inference from such events and conclusively assert that x x x Sandy Pamplona and [respondent] Florencio Morales, Jr., who happened to be there - if indeed they were there!, had anything to do with the murder of Atty. [Demetrio] Hilbero. What we have here is at best a suspicion, which is tantamount to doubt or skepticism. For that alleged "thumb's-up sign" could be at risk to varying interpretation. It could be taken as a boastful expression for achieving an objective. It could also be a demonstration directed to nobody or such did not happen at all and was just perceived to be so. The speeding off of the other motorcycle after the shooting incident is just but a natural reaction of persons fleeing from danger. It is noteworthy to mention that other than the speeding off of the other motorcycle, which was allegedly boarded by x x x Sandy and [respondent] Florencio, no evidence was proffered to show that the latter participated or conspired before, during and after the commission of the crime of murder against Atty. [Demetrio] Hilbero. One could always speculate, however, but it is not evidence.
Lastly, the evidence for the prosecution in its entirety strongly implies the presence of all the elements of the crime of Murder perpetrated by x x x Primo Lopez and Lorenzo Pamplona.
Culled from the records, it is undeniable that the entire case of the [petitioner] rests upon the statement of alleged eyewitness Reynaldo Leyva. Simply put, without his statement, there is nothing to hold [Primo, Lorenzo, Sandy, and respondent] for trial.Petitioner filed with the DOJ a Motion for Declaration of Nullity of the DOJ Resolution, or In the Alternative, For its Reconsideration.[9] Petitioner alleged in his Motion that neither he nor his counsel were furnished a copy of DOJ Secretary Gonzalez's Resolution dated March 18, 2009; petitioner only learned three days earlier that the CCPO had long received a copy of said Resolution (apparently forwarded by the ORSP-Laguna); and petitioner merely photocopied the copy of said Resolution of the CCPO. According to petitioner, there was a clandestine and deliberate design by some operators at the DOJ to conceal from petitioner the issuance of DOJ Secretary Gonzalez's Resolution dated March 18, 2009, which invalidated the said Resolution. In the alternative, petitioner sought reconsideration of DOJ Secretary Gonzalez's Resolution dated March 18, 2009 because: (a) based on Reynaldo's testimony during the preliminary investigation before the ORSP-Laguna, Primo, Lorenzo, Sandy, and respondent were companions and confederates in the perpetration of the murder of Demetrio; (b) the preliminary investigation was not a trial on the merits; (c) Primo, Lorenzo, Sandy, and respondent were all positively identified; (d) the allegations of Primo, Lorenzo, Sandy, and respondent that Reynado is a relative of petitioner, worked for petitioner, and had an ax to grind against respondent's father, were baseless and unsubstantiated; (e) Reynaldo's supposed delay in coming forward as eyewitness did not affect his credibility as he explained that it was because he feared for his life and the safety of his family; (t) Reynaldo's behavior after witnessing the murder of Demetrio, i.e., failing to aid Demetrio and waiting six months before coming forward, was natural as there is no standard form of human behavioral response to a strange or frightful experience; (g) the allegations of Primo, Lorenzo, Sandy, and respondent were purely evidentiary, which should be tested in a full-blown trial; (h) the appeals of Primo and Lorenzo, who were fugitives from justice, should have been dismissed; and (i) there was no basis for dismissing the criminal complaint against Primo, Lorenzo, Sandy, and respondent without any evaluation of the issue of conspiracy.
Thus, the bone of contention is whether or not such statement of Reynaldo Leyva is sufficient for purposes of indicting [Primo, Lorenzo, Sandy, and respondent].
After a thorough evaluation of the evidence on record, this Office is not convinced that probable cause exists to indict [Primo, Lorenzo, Sandy, and respondent] for the offense levelled against them.
While it is true that positive identification ordinarily prevails over alibi, it admits of qualifications as held in the case of People v. Ondalok, to wit:"Positive identification where categorical and consistent and without any showing of ill motive on the part of the eyewitness testifying on the matter prevails over the alibi and denial which if not substantiated by clear and convincing evidence are negative and self-serving evidence undeserving of weight in law." (G.R. Nos. 95682-83, May 27, 1997)In the instant case, [Primo, Lorenzo, Sandy, and respondent] allege that Reynaldo Leyva not only works for the [petitioner] but a relative as well. In addition, they claimed that said witness has an ax to grind against Florencio Morales, Sr. [father of respondent] the latter having impounded his motorcycle for having been involved in a crime.
Such allegations are imputations of motive on the part of the said witness to lie and the failure of the [petitioner] to refute the same bodes ill to the credibility of his witness. Had said witness really been present at the time of the incident, had he really been a relative and at the employ of the [petitioner], it behoves this Office why he did not rush to the aid of the victim even after the assailants had already left, why he waited more than six (6) months before coming out with what he supposedly know.
In addition, there appears to be other pieces of evidence which had they been presented, would either corroborate or damage the statement of the said witness, among which is a picture from the CIDG where [Primo] was supposed to have been identified from by Reynaldo Leyva.
This Office is not oblivious to the jurisprudential declaration that "a finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspect" (Webb v. De Leon, 247 SCRA 652). However, we should also be mindful that the instant case is for the crime of murder, a non-bailable offense where a person stands to be deprived of his liberty. If in the first place we are not certain that the person committed the act imputed, it would not only be unwise but downright reckless for us to indict him in court.
To the mind of this Office, the statement of Reynaldo Leyva still leaves much to be desired with to convince us that [Primo, Lorenzo, Sandy, and respondent] were the ones who committed the crime.
Clearly, the DOJ resolution [dated March 18, 2009] dwelt on the evaluation and interpretation of the probative value of the testimony of eyewitness Reynaldo Leyva even if such matter is not within the ambit of the prosecution's duty of finding probable cause. The matter is certainly evidentiary in nature and is best addressed to the trial court whose proximate contact with witnesses places it in a more competent position to discriminate between true and false testimony.Acting DOJ Secretary De Vanadera decreed in the end:
Perforce, we are not in the position to depart from the settled rule that positive identification, when categorical and consistent on the part of the eyewitness, prevails over the defense of alibi and denial (People v. Dela Tonga, 534 SCRA 135 [2007]). As between the self-serving testimony of the accused [(Primo, Lorenzo, Sandy, and respondent)], and the positive identification by the prosecution witnesses, the latter deserves greater credence (People v. Ducabo, 534 SCRA 458 [2007]). Indeed, a witness who testifies that an event occurred is more credible and trustworthy than a witness who testifies to the non-happening of such event. An eyewitness' account is sterling since its accuracy and authenticity may be tested. In contrast, denials and alibi are inherently weak defenses for they are easy to concoct and difficult to disprove. Even if we assume for argument's sake that eyewitness Reynaldo Leyva's statement is tainted by improper motive, still, it is incumbent upon [Primo, Lorenzo, Sandy, and respondent] to show by clear and convincing evidence that their alibis and denials are feasible in the present case. Otherwise, their defenses cannot stand against the positive testimony of eyewitness Reynaldo Leyva. Likewise, [Primo, Lorenzo, Sandy, and respondent's] denials must be buttressed by strong evidence of nonculpability in order to merit credibility. Priscinding (sic) from these premises, [Primo, Lorenzo, Sandy, and respondent] have certainly failed to discharge such burden.
Moreover, it must be admitted that we overlooked the fact that the criminal information against x x x the persons of Primo Lopez and Lorenzo Pamplona was already filed with the Regional Trial Court of Calamba City, Laguna, and the corresponding warrants of arrest against them were already issued by said court. The said warrants of arrest were issued upon a judicial determination of probable cause by the judge assigned to handle the case. The finding of probable cause made by a judge is independent of any pronouncement in regard to probable cause made by the public prosecutor in the preliminary investigation. With this in mind, judicial determination of probable cause made by the judge should be accorded with respect and should not be disturbed as a matter of courtesy. On this score alone, the petitions for review of Primo Lopez and Lorenzo Pamplona must necessarily fail.
Again, we respect the doctrine enunciated in the case of Crespo v. Mogul (G.R. No. L-53373, June 30, 1987) that:"In order therefore to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination the Court."As regards Sandy Pamplona and [respondent] Florencio Morales, Jr. who were earlier cleared by the Office of the Regional State Prosecutor of Region IV for insufficiency of evidence, we find that there exists probable cause to indict them for murder. It is incontrovertible that a crime has been committed and the only question that remains unanswered would be the identity of the perpetrators. This fact was established by eyewitness Reynaldo Leyva when he positively identified x x x Pamplona and [respondent] as among the perpetrators.
In this case, [Primo, Lorenzo, Sandy, and respondent] appear to have conspired with each other in the commission of the crime. x x xx x x x x x x x x
A revisit of the statement of the eyewitness reveals that [respondent and Sandy] were not mere bystanders at the scene of the crime but, rather, they were active participants whose actions were indicative of a meeting of the minds towards a common criminal goal. They acted as lookouts to ensure the execution of the crime and the identification of the victim. It is highly unusual for mere bystanders to wait for the victim at the scene of the crime before its occurrence, stay there without budging from their positions while the crime is being executed and then finally leave the crime scene only after the crime was consummated and upon a signal from the gunman for them to flee. This theory of conspiracy by [petitioner] was further reinforced by the action of [respondent and Sandy] in fleeing from the crime scene together with Primo Lopez, the gunman, and Lorenzo Pamplona, riding in tandem in two motorcycles, at the same time and in the same direction. From all indications, [Primo, Lorenzo, Sandy, and respondent] acted in a synchronized and coordinated manner in carrying out the criminal enterprise, thus evincing the existence of conspiracy among them.[11]
WHEREFORE, premises considered, the motion for reconsideration is hereby GRANTED. The DOJ resolution [dated March 18, 2009] (Resolution 212, series of 2009) is hereby RECONSIDERED and SET ASIDE. Accordingly, the Office of the Regional State Prosecutor of Region IV, San Pablo City, is directed to file the necessary information for murder against x x x Primo Lopez, Lorenzo Pamplona, [respondent] Florencio Morales, Jr. and Sandy Pamplona, should the information filed earlier against x x x Primo Lopez and Lorenzo Pamplona was already withdrawn, otherwise, to cause the amendment thereof to include x x x Sandy Pamplona and [respondent] Florencio Morales, Jr. in the information as co-accused, and report the action taken hereon within ten (10) days from receipt hereof.[12]In compliance with Acting DOJ Secretary De Vanadera's Resolution dated September 30, 2009, Assistant City Prosecutor Joyce B. Martinez-Barut filed before the RTC a Motion to Admit Amended Information[13] in Criminal Case No. 15782-2008-C. The Amended Information also charged Sandy and respondent for the murder of Demetrio:
In its Order[15] dated December 2, 2009, the RTC admitted the Amended Information and ordered the issuance of warrant of arrest against Primo, Lorenzo, Sandy, and respondent. The Warrant of Arrest[16] for the four named accused was subsequently issued on June 10, 2010.AMENDED INFORMATION
The undersigned Assistant City Prosecutor-Designate accuses PRIMO LOPEZ y JAVIER, LORENZO PAMPLONA y MANAGA alias LORIE, FLORENCIO MORALES, JR. and SANDY PAMPLONA [y MAIQUEZ], of the crime of Murder committed as follows:
That on or about 8:00 p.m. of 16 June 2007, at Gen. Lim St., Calamba City, and within the jurisdiction of this Honorable Court, the above-named accused conspiring and confederating, without justifiable cause, with intent to kill, treachery and abuse of superior strength, did then and there intentionally, willfully, unlawfully, and feloniously shoot Atty. Demetrio L. Hilbero causing the death of the latter, to the damage and prejudice of the heirs of the said victim.
That in the commission of the offense, the qualifying circumstances of treachery and abuse of superior strength were attendant.[14]
There is conspiracy when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. The essence of conspiracy is the unity of action and purpose. When there is conspiracy, the act of one is the act of all (Rosie Quidet vs. People of the Philippines, G.R. No. 170289, April 8, 2010.)The dispositive portion of the Court of Appeals Decision reads:
It should be remembered nonetheless that conspiracy is not presumed. Like the physical acts constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt. While conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused before, during and after the commission of the crime, all taken together, however, the evidence therefor must reasonably be strong enough to show a community of criminal design. (Hermenegildo M. Magcusi v. The Hon. Sandiganbayan, G.R. No. L-101545 January 3, 1995.)
In order to hold an accused liable by reason of conspiracy, he must be shown to have performed an overt act in pursuance or in furtherance of conspiracy. (People of the Philippines v. Jessie Ballesta, G.R. No. 181632 September 25, 2008.) The raison detre for the law requiring a direct overt act is that, in a majority of cases, the conduct of the accused consisting merely of acts of preparation has never ceased to be equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that must be lacking before the act becomes one which may be said to be a commencement of the commission of the crime, or an overt act or before any fragment of the crime itself has been committed, and this is so for the reason that so long as the equivocal quality remains, no one can say with certainty what the intent of the accused is. (Felix Rait v. People of the Philippines, G.R. No. 180425 July 31, 2008.)
[Respondent] Morales has been thrown into a conspiracy net with Primo Lopez and Lorenzo Pamplona for no evident reason except that he happened to be in the scene of the crime. The [petitioner] ought to be reminded that mere presence at the scene of the incident, knowledge of the plan and acquiescence thereto are not sufficient grounds to hold a person liable as a conspirator. (People of the Philippines v. Jessie Ballesta, supra.) Also, We are not in agreement with the September 30, 2009 ruling of the DOJ that the theory of conspiracy "was further reinforced by the action of [respondent] Morales and [Sandy] in fleeing from the crime scene together with x x x Primo Lopez, x x x, and Lorenzo Pamplona, x x x, at the same time and the same direction." In determining whether conspiracy exists, it is not sufficient that the attack be joint and simultaneous for simultaneousness does not of itself demonstrate the concurrence of will or unity of action and purpose. It cannot be used as basis. (Rosie Quidet v. People of the Philippines, supra.)
Looking at the facts on record, it is very patent that criminal intent cannot be inferred from the actuations of [respondent] Morales on the day that Atty. Demetrio Hilbero was assailed. Otherwise, a person may be indicted for a crime even when he is doing merely the most innocent acts. This is a dangerous doctrine. It is, consequently, clear that a grave abuse of discretion was committed by the then Acting Secretary of Justice in issuing the challenged Resolution of September 30, 2009.[22]
WHEREFORE, premises considered, the petition is partly GRANTED. The Resolution relative to I.S. No. 1428-07 issued by the Department of Justice on September 30, 2009 is hereby MODIFIED. The order directing the filing of a necessary information for murder against Florencio Morales, Jr. or to amend an existing information to include him as co-accsued is REVERSED and SET ASIDE. Let Florencio Morales, Jr. be DROPPED by the Regional Trial Court of Calamba City, Branch 37, as a party in Criminal Case No. 15782-08-C.[23]Petitioner filed a Motion for Reconsideration[24] of the foregoing judgment of the Court of Appeals.
WHEREFORE, premises considered, the Motion to Resolve "Manifestation with Omnibus Motion - to Drop Florencio Morales, Jr. as accused in Criminal Case No. 15782-08-C dated June 16, 2011" is hereby GRANTED. Let the name of accused Florencio Morales, Jr. be dropped from the herein case, the warrant of arrest dated 2 December 2009, and from the hold departure or watch list order of the Department of Justice and/or Bureau of Immigration.In the same Manifestation before the Court of Appeals, respondent moved that the CCPO and/or Assistant City Prosecutor Edizer J. Resurrecion be ordered to explain or show cause why they should not be cited in contempt for defying the Decision dated June 7, 2011 of the appellate court when they opposed his exclusion from Criminal Case No. 15782-2008-C.
ONE: RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN GIVING DUE COURSE TO RESPONDENT FLORENCIO MORALES JR.'S PETITION DESPITE THE VERY GLARING AND SERIOUS PROCEDURAL DEFECTS IN SAID RESPONDENT'S PETITION, NAMELY:Respondent, in his Comment filed on March 23, 2012,[36] countered the petition with these arguments:
(1) SAID RESPONDENT FAILED TO IMPLEAD THE OFFICE OF SOLICITOR GENERAL AS COUNSEL FOR THE DEPARTMENT OF JUSTICE (DOJ); (2) SAID RESPONDENT FAILED TO FILE A MOTION FOR RECONSIDERATION BEFORE THE DEPARTMENT OF JUSTICE.[32]
TWO: THE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT PETITIONER (sic) DOJ SECRETARY GRAVELY ABUSED ITS DISCRETION IN FINDING PROBABLE CAUSE FOR THE CRIME OF MURDER AGAINST RESPONDENT FLORENCIO MORALES, JR.[33]
THREE: THE RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN DROPPING THE NAME OF RESPONDENT FLORENCIO MORALES, JR. FROM THE INFORMATION, GIVEN THAT SAID RESPONDENT COURT OF APPEALS NEVER TOUCHED, LET ALONE EVER DISPUTED, THE FINDINGS OF PROBABLE CAUSE RENDERED BY THE REGIONAL TRIAL COURT.[34]
FOURTH: RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN GRANTING AFFIRMATIVE RELIEF TO RESPONDENT-ACCUSED FLORENCIO MORALES, JR. WHO WAS (AND UNTIL NOW) A FUGITIVE FROM JUSTICE, AND AS SUCH, HAS ABSOLUTELY NO PERSONALITY NOR ANY RIGHT TO ASK FOR ANY AFFIRMATIVE RELIEF FROM RESPONDENT COURT OF APPEALS.[35]
The Court, at the outset, finds no merit in petitioner's assertion that respondent's failure to implead the Office of the Solicitor General (OSG) as a public respondent in his Petition for Certiorari in CA-G.R. SP No. 111191 before the Court of Appeals and the lack of participation of the OSG in the said proceedings as counsel for the DOJ warrant the outright dismissal of CA-G.R. SP No. 111191.I.
THE COURT OF APPEALS, THE DEPARTMENT OF JUSTICE THRU JUSTICE SECRETARY RAUL M. GONZALEZ AND THE PANEL OF PROSECUTORS CORRECTLY RULED AND DID NOT COMMIT GRAVE ABUSE OF DISCRETION OR ACTED IN EXCESS OR WANT OF JURISDICTION IN ORDERING THE DISMISSAL OF THE CASE FOR WANT OF EVIDENCE AGAINST THE RESPONDENT FLORENCIO MORALES, JR.II.
THE PETITIONER AND HIS FABRICATED AND DISCREDITED WITNESS WERE NOT ABLE TO ESTABLISH ANY IOTA OR EVIDENCE TO SHOW AND PROVE THAT FLORENCIO MORALES, JR. IS A CO-CONSPIRATOR IN THE SHOOTING OF THE VICTIM. THE MERE PRESENCE OF THE RESPONDENT FLORENCIO MORALES, JR. ASSUMING THAT TO BE TRUE DOES NOT MAKE HIM A CO-CONSPIRATOR.[37]III.
THE DECISION OF THE HONORABLE COURT OF APPEALS IN THE CASE OF "LUISITO Q. GONZALES, ET AL. VS. ACTING SECRETARY OF JUSTICE AGNES VST DE VANADERA, ET AL.," WHICH DECISION OF THE COURT OF APPEALS IS IN ALL FOURS WITH THE FACTUAL SETTINGS IN THE CASE AT BAR SHOULD BE APPLIED IN THE CASE AT BAR.[38]IV.
THE ATTACHMENTS SUBMITTED BY THE PETITIONER HILBERO IN HIS PLEADINGS, SPECIALLY BEFORE THE DEPARTMENT OF JUSTICE EVEN SHOWS THAT THE ALLEGED EYE WITNESS REYNALDO LEYVA IS FABRICATING AND LYING WHEN HE CLAIMED THAT HE WAS ABLE TO IDENTIFY THE GUNMAN.[39]V.
THE ELEMENTS OF THE CRIME OF MURDER WAS NEVER ESTABLISHED EVEN ON PRELIMINARY INVESTIGATION.[40]VI.
THE ACTING SECRETARY DE VANADERA COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR WANT OF JURISDICTION IN CHARGING THE FOUR ACCUSED, SPECIALLY THE PETITIONER HEREIN ABSENT THE AGGRAVATING CIRCUMSTANCE OF NIGHTIME, TREACHERY AND ABUSE OF SUPERIOR STRENGTH WHICH ARE NOT PRESENT IN 1HE CASE AT BAR AS PRESENTED BY THE LONE FABRICATED EYEWITNESS.[41]VII.
THE PETITIONER AND HIS COUNSEL ARE GUILTY OF "FORUM SHOPPING" FOR WHICH THE PRESENT PETITION AND THE PETITION FILED WITH THE COURT OF APPEALS MUST BOTH BE DISMISSED.[42]VIII.
THE SOLICITOR GENERAL IS NOT A PARTY TO BE IMPLEADED AS A PARTY IN THE CASE AT BAR.IX.
THE RESPONDENT COMPLIED WITH THE PROCEDURAL RULES AND IS NOT A FUGITIVE FROM JUSTICE.[43]X.
THE REGIONAL TRIAL COURT FINDING OF PROBABLE CAUSE FOR THE ISSUANCE OF A WARRANT OF ARREST WAS BASED ON THE ERRONEOUS FINDINGS OF THEN ACTING SECRETARY AGNES VST DEVANADERA, THUS, CLEARLY THERE WAS NO JUDICIAL FINDINGS OF PROBABLE CAUSE FOR THE ISSUANCE OF A WARRANT OF ARREST WHICH WAS ACTUALLY SET ASIDE BY THE COURT A QUO IN ITS SUBSEQUENT ORDER.[44]
SECTION 5. Respondents and costs in certain cases. - When the petition filed relates to the acts or omissions of a judge, court, quasi judicial agency, tribunal, corporation, board, officer or person, the petitioner shall join, as private respondent or respondents with such public respondent or respondents, the person or persons interested in sustaining the proceedings in the court; and it shall be the duty of such private respondents to appear and defend, both in his or their own behalf and in behalf of the public respondent or respondents affected by the proceedings, and the costs awarded in such proceedings in favor of the petitioner shall be against the private respondents only, and not against the judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person impleaded as public respondent or respondents.Irrefragably, the duty to appear for and defend Acting DOJ Secretary De Vanadera's Resolution dated September 30, 2009 before the Court of Appeals in CA-G.R. SP No. 111191 lay with petitioner, the private respondent in said case, and his counsel; and not upon the DOJ, the public respondent, and the OSG, as counsel of the DOJ. The DOJ, whether per se or by counsel, was a nominal party and did not have to actively participate in CA-G.R. SP No. 111191, unless specifically directed by the Court of Appeals. In a Resolution dated March 18, 2011, the Court of Appeals simply noted the Manifestation[46] of the OSG that it was not filing a memorandum in CA-G.R. SP No. 111191 on behalf of the DOJ since it had no participation therein.
Unless otherwise specifically directed by the court where the petition is pending, the public respondents shall not appear in or file an answer or comment to the petition or any pleading therein. If the case is elevated to a higher court by either party, the public respondents shall be included therein as nominal parties. However, unless otherwise specifically directed by the court, they shall not appear or participate in the proceedings therein. (Emphases supplied.)
In the interest of the speedy administration of justice, the guidelines enunciated in Memorandum Circular No. 1266 (4 November 1983) on the review by the Office of the President of resolutions/orders/decisions issued by the Secretary of Justice concerning preliminary investigations of criminal cases are reiterated and clarified.In Acting DOJ Secretary De Vanadera's Resolution dated September 30, 2009, she found probable cause that respondent was criminally liable, together with Primo, Lorenzo, and Sandy, for the murder of Demetrio. Murder is a crime punishable by reclusion perpetua to death.[50] Moreover, Lydia's Kusang Loob na Salaysay was not presented during the preliminary investigation nor the appeal proceedings before DOJ Secretary Gonzalez and, therefore, could not have been considered by the ORSP-Laguna in its Resolution dated May 6, 2008 nor by DOJ Secretary Gonzalez in his Resolution dated March 18, 2009. Respondent mentioned for the first time and attached Lydia's Kusang Loob na Salaysay to his Comment and Opposition to petitioner's Motion for Reconsideration of DOJ Secretary Gonzalez's Resolution dated March 18, 2009. Even then, Acting DOJ Secretary De Vanadera's Resolution dated September 30, 2009 was silent as to Lydia's Kusang Loob na Salaysay. A cursory reading of respondent's Petition for Certiorari in CA-G.R. SP No. 111191 reveals that respondent fundamentally relied on Lydia's Kusang Loob na Salaysay to refute eyewitness Reynaldo's Sinumpaang Salaysay; and such was a new and material issue, not previously ruled upon by the DOJ, which should have been raised in an appeal before the OP rather than a Petition for Certiorari before the Court of Appeals.
No appeal from or petition for review of decisions/orders/resolutions of the Secretary of Justice on preliminary investigations of criminal cases shall be entertained by the Office of the President, except those involving offenses punishable by reclusion perpetua to death wherein new and material issues are raised which were not previously presented before the Department of Justice and were not ruled upon in the subject decision/order/resolution, in which case the President may order the Secretary of Justice to reopen/review the case, provided, that, the prescription of the offense is not due to lapse within six (6) months from notice of the questioned resolution/order/decision, and provided further, that, the appeal or petition for review is filed within thirty (30) days from such notice. (Emphasis supplied.)
A public prosecutor's determination of probable cause - that is, one made for the purpose of filing an information in court - is essentially an executive function and, therefore, generally lies beyond the pale of judicial scrutiny. The exception to this rule is when such determination is tainted with grave abuse of discretion and perforce becomes correctible through the extraordinary writ of certiorari. It is fundamental that the concept of grave abuse of discretion transcends mere judgmental error as it properly pertains to a jurisdictional aberration. While defying precise definition, grave abuse of discretion generally refers to a "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction." Corollary, the abuse of discretion must be patent and gross so as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law. To note, the underlying principle behind the courts' power to review a public prosecutor's determination of probable cause is to ensure that the latter acts within the permissible bounds of his authority or does not gravely abuse the same. This manner of judicial review is a constitutionally-enshrined form of check and balance which underpins the very core of our system of government. As aptly edified in the recent case of Alberto v. CA:Acting DOJ Secretary De Vanadera, in her Resolution dated September 30, 2009, found probable cause to charge respondent for the murder of Demetrio based on eyewitness Reynaldo's credible narration of the circumstances surrounding the shooting of Demetrio and his positive identification of the culprits. Aside from respondent's general and sweeping allegations, there was no basis for concluding that Secretary De Vanadera issued her Resolution dated September 30, 2009 capriciously, whimsically, arbitrarily, or despotically, by reason of passion and hostility, as to constitute abuse of discretion; and that such abuse of discretion was so patent and gross that it was tantamount to lack or excess of jurisdiction. Respondent had already discussed and argued extensively his defenses to the charge of murder, which, as Acting DOJ Secretary De Vanadera correctly ruled, should be properly threshed out and ventilated in the course of the trial of Criminal Case No. 15782-2008-C before the RTC. Thus, the Court of Appeals should not have disturbed the findings of Acting DOJ Secretary De Vanadera in her Resolution dated September 30, 2009, absent a clear showing of grave abuse of discretion, amounting to lack or excess of jurisdiction.It is well-settled that courts of law are precluded from disturbing the findings of public prosecutors and the DOJ on the existence or non-existence of probable cause for the purpose of filing criminal informations, unless such findings are tainted with grave abuse of discretion, amounting to lack or excess of jurisdiction. The rationale behind the general rule rests on the principle of separation of powers, dictating that the determination of probable cause for the purpose of indicting a suspect is properly an executive function; while the exception hinges on the limiting principle of checks and balances, whereby the judiciary, through a special civil action of certiorari, has been tasked by the present Constitution "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." x x x.In the foregoing context, the Court observes that grave abuse of discretion taints a public prosecutor's resolution if he arbitrarily disregards the jurisprudential parameters of probable cause. In particular, case law states that probable cause, for the purpose of filing a criminal information, exists when the facts are sufficient to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof. It does not mean "actual and positive cause" nor does it import absolute certainty. Rather, it is merely based on opinion and reasonable belief and, as such, does not require an inquiry into whether there is sufficient evidence to procure a conviction; it is enough that it is believed that the act or omission complained of constitutes the offense charged. As pronounced in Reyes v. Pearlbank Securities, Inc.:A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed by the suspects. It need not be based on clear and convincing evidence or guilt, not on evidence establishing guilt beyond reasonable doubt, and definitely not on evidence establishing absolute certainty or guilt. In determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. What is determined is whether there is sufficient ground to engender a well-founded belief that a crime has been committed, and that the accused is probably guilty thereof and should be held for trial. It does not require an inquiry as to whether there is sufficient evidence to secure a conviction.Apropos thereto, for the public prosecutor to determine if there exists a well-founded belief that a crime has been committed, and that the suspect is probably guilty of the same, the elements of the crime charged should, in all reasonable likelihood, be present. This is based on the principle that every crime is defined by its elements, without which there should be, at the most, no criminal offense. (Emphases supplied.)