SECOND DIVISION
July 22, 2019
G.R. No. 235739
EDWIN DEL ROSARIO, Petitioner
vs.
PEOPLE OF THE PHILIPPINES, Respondent
DECISION
CAGUIOA, J.:
Before the Court is a Petition for Review on Certiorari1 under Rule 45 of the Rules of
Court filed by Edwin del Rosario (Edwin) assailing the Decision2 dated May 12, 2017 and
Resolution3 dated November 6, 2017 of the Court of Appeals (CA) in CA-G.R. CR No.
01228-MIN, which affirmed the Decision4 dated August 22, 2014 of the Regional Trial
Court of Davao City, Branch 16 (RTC) in Criminal Case No. 71,449-11, finding Edwin
guilty beyond reasonable doubt of the crime of robbery.
The Facts
Edwin, together with Roxan Cansiancio5 (Roxan), was charged with Robbery. The
accusatory portion of the Information reads:
That on or about January 30, 2012, in the City of Davao, Philippines and
within the jurisdiction of this Honorable Court, the above-mentioned
accused, conspiring and confederating with one another with intent to
gain and by means of violence or intimidation against person, willfully,
unlawfully and feloniously took, stole and carried away by means of force
an Italian Gold Necklace with pendant worth P18,000.00, belonging to
private complainant CHARLOTTE CASIANO to the latter's damage and
prejudice in the aforesaid
CONTRARY TO LAW.6
Upon arraignment, both Edwin and Roxan pleaded not guilty to the crime charged.
However, before trial ensued, Roxan changed his mind and decided to withdraw his
earlier plea.7 He plea bargained the charge of consummated robbery to a lower offense of
attempted robbery.8 With the approval of the prosecution and with the conformity of
Charlotte Diane9 Evangelista Casiano (Charlotte), the private complainant, the RTC
sentenced Roxan to suffer the straight penalty of six (6) months arresto mayor.10
As to Edwin, trial ensued thereafter.
Version of the Prosecution
In the afternoon of January 30, 2012, Charlotte and Kim Evangelista Casiano (Kim)
flagged down a jeepney going to G-Mall.11 After boarding said jeepney, two male persons,
who were later identified to be Roxan and Edwin, also boarded the vehicle.12 Roxan sat
across Charlotte while Edwin sat on the side of Kim with a woman passenger in between
them.13
While on board the jeepney, Charlotte and Kim heard Roxan and Edwin talking about
who will pay the fare.14 Upon reaching the corner of Quirino Street near the Villa Abrille
Building, the jeepney stopped at a red light.15 Kim saw Edwin giving the signal to Roxan
and heard him say "tirahi na nang babaye bai"16 Thereafter, Roxan snatched the necklace
of Charlotte, disembarked from the jeepney, and ran away. Edwin also disembarked.17
Charlotte shouted "magnanakaw".18 She and Kim disembarked from the jeepney and tried
to run after Roxan but they were unable to catch him.19
They later learned that Roxan was apprehended.20 With Roxan in custody, the police
decided to conduct a follow-up operation.21 PO3 Rizalito Clapiz III testified on cross-
examination that Roxan provided the police with the information that his companion is a
bald person.22 The police went to the address of Edwin and upon Roxan's confirmation
that he is his companion, Edwin was apprehended.23
On the same day, the police, at 10:00 in the evening, requested that Charlotte and Kim
identify Edwin.24 Due to health reasons, Charlotte and Kim were only able to go to the
police station the next day.25 They both identified Edwin as the bald person who was the
companion of Roxan in the alleged robbery.26
Version of the Defense
Edwin's defense was that of an alibi. The defense presented four witnesses, namely
Victoriano Lumosad (Victoriano), Emilyn27 Batulan (Emilyn), Henry Parreno, Sr.28 (Henry)
and Edwin himself.
Victoriano claimed that about 3:30 to 4:00 in the afternoon of January 30, 2012, he saw
Edwin driving.29 Emilyn also testified that she saw Edwin take his usual jeepney route on
January 30, 2012 and that she saw him pass by her residence at 10:00 in the morning
and at 3:00 to 4:00 in the afternoon.[[30] ] Henry, who is the father-in-law of Edwin, also
testified that he saw him on January 30, 2012 at about 2:00 in the afternoon driving his
jeepney from Talomo going to downtown.31
The defense also averred that the prosecution's witnesses failed to give sufficient
identification of Edwin.32 Their arguments relied heavily on the fact that Charlotte only
identified Roxan's companion as a bald person.33 The defense argued that there was no
description provided as to the companion's complexion, built, and other features. Thus,
the description of Roxan's companion as a bald person is insufficient to properly identify
Edwin as the perpetrator.
Additionally, the defense alleged that the in-court identification made by Charlotte and
Kim was heavily tainted because even before they were able to identify Roxan's
companion, the police already told them that the perpetrator has been arrested.34
Ruling of the RTC
After trial on the merits, in its Decision35 dated August 22, 2014, the RTC convicted Edwin
of the crime charged. The RTC ruled that Edwin's alibi would not prosper because he
was unable to comply with the requirements of time and place, since he was in Davao
City. Hence, it was not physically impossible for him to be at the scene of the crime at the
time of its commission.36
The dispositive portion of the said Decision reads:
WHEREFORE, PREMISES CONSIDERED, the Court finds the evidence
sufficient to prove the guilt of accused EDWIN DEL ROSARIO beyond
reasonable doubt. There being no mitigating nor aggravating
circumstance and pursuant to paragraph 5 of Article 294 of the Revised
Penal Code, the Court hereby sentences accused EDWIN DEL
ROSARIO to suffer the indeterminate penalty, ranging from [s]ix (6)
[m]onths and one (1) [d]ay, [p]rision correccional, as minimum, to six (6)
[y]ears and [o]ne (1) [d]ay, [p]rision [m]ayor, as maximum.
No award of civil liability.
SO ORDERED.37
Aggrieved, Edwin appealed to the CA.
Ruling of the CA
In the questioned Decision38 dated May 12, 2017, the CA affirmed the RTC's conviction of
Edwin. The CA explained that denial and alibi by Edwin cannot prevail over the positive
and categorical testimony of the prosecution witnesses.39 The CA also ruled that there
was conspiracy because the commonality of criminal intent between Edwin and Roxan
was apparent: (1) Edwin and Roxan rode the jeepney together; (2) Edwin said "tirahi na
ng babaye bai; (3) Roxan grabbed the necklace of Charlotte; and (4) both Roxan and
Edwin disembarked from the jeepney and ran away.40
The CA, however, modified the penalty and disposed as follows:
WHEREFORE, the instant appeal is DENIED. The Decision of the
Regional Trial Court, Branch 16, Davao City dated August 22, 2014 is
Affirmed but Modified only as to the penalty imposed on the [prison] term
which shall be six (6) months of arresto mayor as minimum to six (6)
years of prision correccional as maximum.
SO ORDERED.41
Issue
For resolution of the Court is the issue of whether the RTC and the CA erred in convicting
Edwin of the crime of robbery.
The Court's Ruling
At the outset, it must be stressed that an appeal in criminal cases opens the entire case
for review, and it is the duty of the reviewing tribunal to correct, cite, and appreciate
errors in the appealed judgment whether they are assigned or unassigned.42 The appeal
confers the appellate court full jurisdiction over the case and renders such court
competent to examine records, revise the judgment appealed from, increase the penalty,
and cite the proper provision of the penal law.43
Edwin's guilt was proven beyond
reasonable doubt
In the case at bar, the Court adopts the CA's findings and conclusion as to Edwin's guilt.
The Court is convinced that the elements of taking of personal property which belongs to
another person without his consent have been established and such taking was with
intent to gain. The Court consistently held that intent to gain is a mental state whose
existence is demonstrated by a person's overt acts.44
As to Edwin's allegation that the prosecution failed to prove beyond reasonable doubt the
required identification that he was one of the persons responsible for the crime charged,
the Court agrees with the CA when it ruled as follows:
Indeed, a perusal of the testimonies [of] both witnesses on direct and
cross-examinations would show that they were consistent on their
narrative of the incident and of the participation of appellant Del Rosario.
Thus, there is no reason to depart from the findings of the trial court
especially since "[t]he direct appreciation of testimonial demeanor during
examination, veracity, sincerity and candor was foremost the trial court's
domain, not that of a reviewing court that had no similar access to the
witnesses at the time they testified."45
As a matter of fact, the testimonies of Kim and Charlotte demonstrate that they are
certain that Edwin was the perpetrator:
[Kim's testimony:]
Q: Okay, are you positive that it is Del Rosario, who is in Court, who gave
the signal to Cansancio?
A: Yes sir.
Q: How certain are you from 1 to 100%?
A: 101% sir.
Q: 101%?
A: Yes sir.
Q: 101%, your identification?
A: Yes sir.
Q: That means it is impossible for you to forget the face of accused Del
Rosario?
A: Yes sir because it is our first time to meet this kind of incident.
xxxx
Q: x x x
What happened after you went to the San Pedro Police Station?
A: They made us identify the companion sir.
Q: Where (sic) you able to identify him?
A: Yes sir.
Q: Who was that?
A: Edwin Del Rosario sir.
Q: The Edwin del Rosario you just identified before this Court, what is his
relation to the person you identified in San Pedro Police Station?
A: He is one and the same person sir.
Q: You are very sure that the person in Court who identified himself as
Edwin Del Rosario is the same person, Edwin del Rosario you identified
in San Pedro Police Station?
A: Very sure sir.46
[Charlotte's testimony:]
Q: What happened when you were in the police station?
A: At first, we were not able to see that person but they were detained
there, they made us identify that person sir.
Q: Were you able to identify him?
A: Yes sir.
Q: Is he in Court?
A: Yes sir.
Q: If he is in Court, can you point to him?
A: Yes sir.
MR. MOLINA: Witness pointed to a person wearing a black t-shirt and
when asked, identified himself as Edwin Del Rosario.
PROS. BELLO: He is the same person you saw boarded on the same
jeepney?
A: Yes sir.
xxxx
PROS. BELLO: Madam Witness, after you went to the San Pedro Police
Station, you identify the accused ...
COURT: Who among the accused?
PROS. BELLO: Accused del Rosario your Honor.
Is he the same person you saw in the puj you boarded earlier?
A: Yes sir.
Q: You are very certain of that?
A: Yes sir, I immediately identify him.
Q: You are very sure that he is the same person?
A: Yes sir.
May be because 1 was angry sir, it was stuck in my mind sir.
Q: Between the range from 1 to 10, what is [your] certainty of your identity?
A: 100% sir.47
Crime committed is theft, not robbery
From the foregoing, the Court notes that the material issue left to be addressed is
whether the snatching of the necklace is robbery or theft. Did Edwin employ violence or
intimidation upon persons, or force upon things, when he snatched Charlotte's necklace?
The elements of robbery are: (1) there is a taking of personal property; (2) the personal
property belongs to another; (3) the taking is with animus lucrandi; and (4) the taking is
with violence against or intimidation of persons or with force upon things.48 Theft, on the
other hand, is committed by any person who, with intent to gain but without violence
against or intimidation of persons nor force upon things, shall take the personal
property of another without the latter's consent.49
Thus, the distinguishing element between the crimes of robbery and theft is the use of
violence or intimidation as a means of taking the property belonging to another; the
element is present in the crime of robbery and absent in the crime of theft.50
The testimonies of the witnesses reveal that the snatching of the necklace was without
violence against or intimidation of persons or with force upon things. Kim, during his
direct examination, testified as follows:
COURT: Okay what happened when these two men boarded the vehicle?
A: They have a conversation about the fare sir, as to who will pay the fare
sir.
Q: Then?
A: The jeep stop[ped] briefly at Villa Abrille Building because there was a
red light.
Q: So, what happen[ed]?
A: When I looked at them, they gave a signal.
Q: Who gave a signal?
A: Mr. Del Rosario sir.
Q: The one who is in court?
A: Yes sir.
Q: Okay, you just refer to him as Del Rosario. Del Rosario gave a signal?
A: Yes, sir.
Q: What kind of signal?
A: He said "tirahi na nang babaye bai" (Hit that lady bai).
Q: So, upon hearing that message from Del Rosario, what did Cansancio
do?
A: He quickly snatched the necklace sir and then Cansancio ran away.
Q: What about del Rosario?
A: He was left in the jeep sir.
Q: Then?
A: I chased Cansancio sir and my sister disembark[ed] from the jeep and
[s]he als[o] chased Cansancio.51
Such fact was also bolstered by Charlotte's testimony:
Q: Madam Witness, what happened when the jeepney you were riding
was already in motion?
A: I was hinting something and there was a male person in front of me, in
fact, the people who are also about to board a jeep was telling him to
move towards the inside direction, but he did not move sir.
Q: What happened?
A: What I was able to recall was that I heard a person saying "you will be
the one to pay the fare."
xxxx
Q: What else happened?
A: After that sir, upon reaching the corner of Quirino, there was a red light
so the jeepney stopped.
Q: What happened when the red traffic light flashed?
A: When the jeep was again about to move that male person in front of
me suddenly grabbed my necklace.
Q: What happened after he grabbed your necklace?
A: I was weak at that time sir, coming from the hospital, I tried to hold on
to my necklace but I was not able to prevent him from grabbing my
necklace so he jumped and ran away and I also jumped and shouted
"theft".
Q: What did your brother do, if any?
A: When I jumped off from the jeep, my brother also chased the person
sir, we were shouting "magnanakaw" (theft).
Q: What happened when your brother was chasing the person who
grabbed your necklace?
A: I was trying to look at the ground sir if there was something that fell
your Honor, I return to the multicab sir I identified all those passengers
then I followed my brother sir.
Q: What happened to that person who grabbed your necklace?
A: He was running, heading to the direction of Villa Abrille.
Q: Then, what happened next, if any?
A: When I arrived there, there were three civilian police who caught or
apprehended that person sir.52
In the case of People v. Concepcion,53 the Court ruled that when the complainant herself
merely testified that the offender snatched her shoulder bag, without saying that such
offender used violence, intimidation or force in snatching her shoulder bag, the snatching
of the shoulder bag constitutes the crime of theft, not robbery.54 The Court reached the
same conclusion in the following cases:
In People v. [De la] Cruz,55 this Court found the accused guilty of theft for
snatching a basket containing jewelry, money and clothing, and taking off
with it, while the owners had their backs turned.
In People v. Tapang,56 this Court affirmed the conviction of the accused
for frustrated theft because he stole a white gold ring with diamond stones
from the victim's pocket, which ring was immediately or subsequently
recovered from the accused at or about the same time it was stolen.
In People v. Omambong,57 the Court distinguished robbery from theft. The
Court held:
Had the appellant then run away, he would undoubtedly
have been guilty of theft only, because the asportation
was not effected against the owner's will, but only without
his consent; although, of course, there was some sort of
force used by the appellant in taking the money away
from the owner.
xxxx
What the record does show is that when the offended
party made an attempt to regain his money, the
appellant's companions used violence to prevent his
succeeding.
xxxx
The crime committed is therefore robbery and not theft,
because personal violence was brought to bear upon the
offended party before he was definitely deprived of his
money.58
In the strikingly similar case of Ablaza v. People,59 the Court clarified that "for the requisite
of violence to obtain in cases of simple robbery, the victim must have sustained less
serious physical injuries or slight physical injuries in the occasion of the robbery."60 The
Court added that the fact that the necklace was "grabbed" did not automatically mean
that force attended the taking. The Court explained:
The OSG argues that the use of the word "grabbed", by itself, shows that
violence or physical force was employed by the offenders in taking
Snyders' necklaces. The Court, however, finds the argument to be a pure
play of semantics. Grab means to take or seize by or as if by a sudden
motion or grasp; to take hastily. Clearly, the same does not suggest the
presence of violence or physical force in the act; the connotation is on the
suddenness of the act of taking or seizing which cannot be readily
equated with the employment of violence or physical force. Here, it was
probably the suddenness of taking that shocked Snyder and not the
presence of violence or physical force since, as pointed out by petitioner,
Snyder did not at all allege that She was pushed or otherwise harmed by
the persons who took her necklaces.61
Applying the foregoing in the case at bar, the crime committed by Edwin is thus clearly
only theft, instead of robbery.
In arriving at this conclusion, the Court is aware that Edwin was indicted under a charge
for robbery, not theft. The failure to specify the correct crime committed, however, will not
bar Edwin's conviction for the crime of theft. The character of the crime is not determined
by the caption or preamble of the information, or by the specification of the provision of
law alleged to have been violated.62 The crime committed is determined by the recital of
the ultimate facts and circumstances in the complaint or information.63 In this case, the
allegations in the Information are sufficient to make out a charge of theft.
Proper Penalty to be imposed
The CA imposed the penalty of six (6) months of arresto mayor, as minimum, to six (6)
years of prision correccional, as maximum. Under Republic Act No. 10951,64 which was
promulgated on August 29, 2017, Article 309(4) of the Revised Penal Code has been
relevantly amended as follows:
ART. 309. Penalties. – Any person guilty of theft shall be punished by:
xxxx
4. Arresto mayor in its medium period to prision correccional in its
minimum period, if the value of the property stolen is over Five thousand
pesos (P5,000) but does not exceed Twenty thousand pesos (P20,000).
Accordingly, the Court modifies the penalty. Article 309(4) provides that the penalty shall
be arresto mayor in its medium period to prisión correccional in its minimum period,
which consist of the following periods:
(a) MINIMUM – arresto mayor in its medium period, that is from two (2) months and one
(1) day to four (4) months;
(b) MEDIUM – arresto mayor in its maximum period, that is four (4) months and one (1)
day to six (6) months; and
(c) MAXIMUM – prision correccional in its minimum period, that is six (6) months and one
(1) day to two (2) years and four (4) months.
Pursuant to Article 64(1)65 of the Revised Penal Code which provides that in cases in
which the penalties prescribed by law contain three periods, whether it be a single
divisible penalty or composed of three different penalties, and there being no mitigating
or aggravating circumstances, the penalty imposable shall be in its medium period.
Hence, the imposable penalty is arresto mayor in its maximum period, that is, four (4)
months and one (1) day to six (6) months.66
In Romero v. People67 citing Argoncillo v. Court of Appeals,68 the Court summarized the
application and non-application of the Indeterminate Sentence Law (ISL), to wit:
x x x It is basic law that x x x the application of the Indeterminate
Sentence Law is mandatory where imprisonment exceeds one (1) year,
except only in the following cases:
xxxx
h. Those whose maximum period of imprisonment does not exceed one
(1) year.
Where the penalty actually imposed does not exceed one (1) year, the
accused cannot avail himself of the benefits of the law, the application of
which is based upon the penalty actually imposed in accordance with law
and not upon that which may be imposed in the discretion of the court.
(People v. Hidalgo, [CA] G.R. No. 00452-CR, January 22, 1962).69
In other words, since the maximum imposable penalty does not exceed one year, the ISL
does not apply.70 As aforementioned, the maximum term to be considered is the penalty
actually imposed in accordance with law, which is arresto mayor in its maximum period,
that is four (4) months and one (1) day to six (6) months.71 Accordingly, his penalty is
fixed at six (6) months of arresto mayor maximum.
WHEREFORE, in view of the foregoing, the Petition is hereby PARTIALLY GRANTED.
The Court DECLARES petitioner EDWIN DEL ROSARIO GUILTY beyond reasonable
doubt of THEFT, for which he is sentenced to suffer the straight penalty of six (6) months
of arresto mayor.
SO ORDERED.
Carpio, (Chairperson), J. Reyes, Jr., and Lazaro-Javier, JJ., concur.
Perlas-Bernabe, J., on official leave.
