Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 80962             January 28, 1991

MARINA PORT SERVICES, INC., petitioner,

vs.
NATIONAL LABOR RELATIONS COMMISSION, LABOR ARBITER CRESENCIO R. INIEGO,
JOSE M. CARPIO, VIRGILIO CERVANTES, RONALDO M. REYES, BIENVENIDO ABUNDA,
LORENZO SANTOS, LEODEVICO PERDIDO, NICASIO VEGA, DOMINADOR PLACIDO,
BENJAMIN ENRIQUEZ, FERDINAND L. PASCUA, IRENEO VILLANUEVA, SEVERINO DE
CASTRO, AGERICO R. ABEJO, JULIAN MACANAS, EDGAR JAVIER, EMMANUEL LUIS,
CATALINO GAMIDO, JR., FELIPE B. RAMOS, PEDRITO AQUINO, JR., LEVITICO CRUZ, EFREN
LAUREANO, FERNANDO DELA CRUZ, MANOLO MAURICIO, CHRISANTHUS PALOMO,
GREGORIO LAPIDO, EDWIN MEDALLA, BENJAMIN PADILLA, MARCELINO BUGTONG,
EBERARDO FUERTE, FREDO TAMPICO, VICTOR LAGDAR, MANUEL DECCAREZA,
APOLINARIO TAYLO, MARCELINO DESAMITO, ROMEO CRUZ, AUGUSTO DE GUIA, FELIMON
BACANI, CONSTANTINO AQUINO, ANDRES AGLIAM, NESTOR SAGUN, SULPICIO ORNOPIA,
LEONARDO ESPINISA, MELCHOR RAZON, EMMANUEL ABRIGO, ROMULO VALMONTE,
EMMANUEL PINEDA, TOMAS SORIANO, JR., LUCIO PLANAS, FERNANDO PASCUA,
MARIANITO PIROTE, BENJAMIN PASCUA, MANUEL TIBURCIO, RICARDO CORREA,
FELICIANO DEL ROSARIO, EDMUNDO DELIMA, RAYMUNDO TAGUINOD, REYNALDO
PARAYAO, GELACIO AGUILA, JESUS BALE, JOSE LANGAMAN, SALVADOR PUACO,
SILVINO F. MENDIOLA, LEOCADIO FERRER, TOMAS F. SORIANO and CARLOS S.
ARELLANO, respondents.

Abad & Associates for petitioner.

Nicanor B. Jimeno for private respondent.

CRUZ, J.:

On July 19, 1986, the Philippine Ports Authority canceled its arrastre management contract with
Metro Port Services, Inc. and directly assumed the cargo handling operations in the South Harbor of
Manila.

Two days later, it awarded a permit to Marina Port Services to undertake arrastre services in the
same port, subject inter alia to the following stipulation embodied in Paragraph 7 of the terms and
conditions of the said permit:

Labor and personnel of previous operator, except those positions of trust and confidence,
shall be absorbed by grantee. Labor or employees benefits provided for under existing CBA
shall likewise be honored.

Marina retained the bulk of the 2,700-man personnel of Metro but refused to continue the
employment of 65 of the 123 persons constituting the security force. The guards excluded were
served with notices of separation effective on various dates during the period from July 19 to August
24, 1986. Their reaction was to file a complaint for illegal dismissal and damages with the
Department of Labor and Employment on August 5, 1986.

After submission of position papers by the parties, Labor Arbiter Crescencio R. Iniego held in favor
of the complainants. In a decision dated December 22, 1986, he ordered their reinstatement without
loss of seniority rights and payment of back salaries, moral and exemplary damages and attorney's
fees.1

On October 30, 1987, his decision was affirmed by the respondent National Labor Relations
Commission except for the award of moral and exemplary damages, which was deleted.  The motion
2

for reconsideration was denied on November 23, 1987. 3

The petitioner then came to this Court alleging grave abuse of discretion on the part of the public
respondent. We issued a temporary restraining order on January 6, 1988,  and required comments
4

from the respondents, to which a reply was submitted, followed by a rejoinder and then a sur-
rejoinder. On October 10, 1988, we gave due course to the petition and called for the submission of
simultaneous memoranda, which were both filed on February l3, 1989.

The petitioner contends specifically that: a) it had no pre-existing employer-employee relationship

with the private respondents; (b) Paragraph 7 of the terms and conditions of the permit should be
interpreted by a court of law and not the NLRC; and c) Marina was not obligated to re-hire the
private respondents because it had no license to maintain a security agency.

On the first issue, the petitioner contends that Metro and Marina are entirely different entities; hence,
the latter is not bound by the contracts entered into by the former. The private respondents were
employed by Metro, not Marina. Marina did not even succeed Metro in the arrastre operations
because it derived its permit directly from the Philippine Ports Authority after that office took over the
said operations from Metro. Consequently, the private respondents had no valid claim for
reinstatement against Marina.

The Court agrees that as a mere successor of Metro in the arrastre operations in the South Harbor,
Marina did not become responsible for the employment commitments of the latter. The rule on this
matter is well-settled.  Nevertheless, we should not disregard Paragraph 7, under which Marina
5

expressly agreed to absorb the employees of Metro as a condition of the permit granted by the PPA.
In fact, conformably to that stipulation, Marina did absorb the majority of Metro's personnel, including
some of its security force. This circumstance modifies the general rule as far as this case is
concerned and renders pointless all debate on whether or not Metro's employees automatically
became Marina's employees. They did not, of course, following the general rule; but they became so
by virtue of Paragraph 7 of the terms and conditions of the permit.

Did the absorbed employees include the private respondents?

The petitioner maintains that they had no right to be re-hired because they were occupying positions
of trust and confidence as members of the security force and so came under the exception in
Paragraph 7. In support of this view, it cites the following excerpt from the decision in San Miguel
Corporation v. NLRC: 6

In Lepanto Consolidated Mining Co. v. Court of Appeals (1 SCRA 1251), we held that where
an employee occupies a position of trust and confidence, as where he is entrusted with
confidential or delicate matters, or where the custody, handling, or care and protection of the
 employer's property, acts tending to show untrustworthiness may constitute a just cause for
dismissal, or of loss of employer's confidence.

The above statement was mere obiter and not even necessary for the determination of that case;
and neither was it intended as a categorical interpretation of the phrase "trust and confidence." The
reference to Lepanto was for purposes of illustration only as that decision also did not carry its own
definition of the phrase in question. The Court is therefore not limited by those cases in its
examination of when a position may be considered one of trust and confidence, for the purpose at
least of determining the correct meaning of Paragraph 7.

As we see it, a strictly literal interpretation of the phrase was not intended in Paragraph 7. On the
contrary, we feel that the reference intended was not to any employee entrusted with the custody of
company property but to a higher category of employees not belonging to the rank-and-file but
holding managerial positions. As the Solicitor General suggests:

The interpretation of the term trust and confidence should be restricted to managerial

employees. Those who are vested with powers or prerogatives to lay down management
policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline
employees, or to effectively recommend such managerial actions (Article 212(k), Labor Code
of the Philippines). The positions held by private respondents (that of security services)
which are by and large limited to securing the employer's property as well as its clients'
property could hardly be considered as one of trust and confidence under paragraph 7 of the
Additional Terms and Conditions of the Management Contract. 7

To be sure, every employee must enjoy some degree of trust and confidence from the employer as
that is one reason why he was employed in the first place. One certainly does not employ a person
he distrusts. Indeed, even the lowly janitor must enjoy that trust and confidence in some measure if
only because he is the one who opens the office in the morning and closes it at night and in this
sense is entrusted with the care or protection of the employer's property. The keys lie holds are the
symbol of that trust and confidence.

By the same token, the security guard must also be considered as enjoying the trust and confidence
of his employer, whose property he is safeguarding. Like the janitor, he has access to this property.
He too, is charged with its care and protection.

Notably, however, and like the janitor again, he is entrusted only with the physical task of protecting
that property. The employer's trust and confidence in him is limited to that ministerial function. He is
not entrusted, in the Labor Arbiter's words, "with the duties of safekeeping and safeguarding
company policies, management instructions, and company secrets such as operation devices." He is
not privy to these confidential matters, which are shared only in the higher echelons of management.
It is the persons on such levels who, because they discharge these sensitive duties, may be
considered holding positions of trust and confidence. The security guard does not belong in such
category.

It follows that the Labor Arbiter did not err in interpreting Paragraph 7 and assuming jurisdiction over
what is clearly a labor dispute involving employer-employee relations.

Turning now to the alleged illegal dismissal of the private respondents, we affirm first of all that loss
of confidence is a valid ground for dismissal under our labor laws. However, that ground, like any
other ground, must first be established in proper proceedings before an employee can be lawfully
dismiss. The following provisions in the Omnibus Rules Implementing the Labor Code,  which are
8
here re-stated as a reminder to all employers, prescribe the procedure to be observed in any action
of management against the employee:

Sec. 1. Security of tenure and due process. — No worker shall be dismissed except for a just
or authorized cause provided by law and after due process.

2. Notice of dismissal. — Any employer who seeks to dismiss a worker shall furnish him a
written notice stating the particular acts or omission constituting the grounds for his
dismissal. In cases of abandonment of work, the notice shall be served at the worker's last
known address.

x x x           x x x          x x x

5. Answer and hearing. — The worker may answer the allegations stated against him in the
notice of dismissal within a reasonable period from receipt of such notice. The employer shall
afford the worker ample opportunity to be heard and to defend himself with the assistance of
his representative, if he so desires.

6. Decision to dismiss. — The employer shall immediately notify a worker in writing of a

decision to dismiss him stating clearly the reasons therefor.

The record shows that the above procedure was not followed by the petitioner when it dismissed the
private respondents. There was no hearing conducted as required by the rules, only an alleged
background investigation that supposedly linked them to pilferages in the pier. No charges were
formally preferred against the private respondents nor where they given a chance to defend
themselves. They were simply and arbitrarily separated and served notices of termination in
disregard of their rights to due process and security of tenure.

The following pronouncements from this Court are appropriate:

Loss of confidence constitutes a just cause for terminating an employer-employee

relationship.  But for dismissal for loss of confidence to be warranted, there should naturally
1âwphi1

be some basis for it. Unsupported by sufficient proof, loss of confidence is without basis and
may not be successfully invoked as a ground for dismissal. Loss of confidence as a ground
for dismissal has never been intended to afford an occasion for abuse by the employer of its
prerogative, as it can easily be subject to abuse because of its subjective nature.

The burden of proof rests upon the employer that the dismissal is for cause, and the failure
of the employer to do so would mean that the dismissal is not justified. 9

x x x           x x x          x x x

Such a vague, all-encompassing pretext as loss of confidence, if given the seal of approval
by this Court, could easily be utilized to reduce to a barren form of words the constitutional
guarantee of security of tenure. Precisely, the employee is afforded that protection so that his
means of livelihood is not placed at the mercy of management. He is just as much a
participant in the industrial process. He is entitled to be considered as such. Constitutional
provisions protecting labor are in line with the predominant thinking all over the world
safeguarding human dignity. It would then be to ignore not a mandate of the fundamental law
but also a counsel of wisdom and fair play to impart to the concept of loss of confidence such
a latitudinarian scope. What matters the investigation undergone by private respondent
 resulting in the affirmation of his innocence, if thereafter management would just rely on an
alleged loss of confidence? . . . (Central Textile Mills, Inc. vs. NLRC, 90 SCRA 9; see
also Acda v. Minister of Labor, 119 SCRA 306) 10

The argument that the petitioner could not re-hire the private respondents because it had no license
to operate a security agency must fall against the admitted fact that it retained 56 of the security
guards and later re-hired two others even without the said license. The solution, at any rate, was to
secure the license if it was really necessary, not to dismiss some of the security guards while
retaining the others.

It remains to say that if the petitioner distrusts the private respondents, it may still seek to establish
its lack of confidence and trust in them by proving that ground for their dismissal at an investigation
conducted in accordance with the prescribed procedure. But before it can do so, it must first
reinstate all of them as among the personnel of the previous operator to be absorbed by the grantee
of the permit, conformably to its commitment in the aforesaid
Paragraph 7.

WHEREFORE, the appealed decision dated October 30, 1987, is AFFIRMED with the modification
that the payment of back salaries shall be limited to only three years. The temporary restraining
order dated January 6, 1986, is LIFTED. The petition is DENIED, with costs against the petitioner.

SO ORDERED.

Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

Footnotes

1
 Rollo, p. 58.

2
 Ibid., p. 68.

3
 Id., p. 72.

4
 Id., p. 74.

5
 Filipinas Port Services, Inc. Damasticor vs. NLRC, 177 SCRA 203.

6
 128 SCRA 180.

7
 Rollo, p. 132.

8
 Book V, Rule XIV, Termination of Employment.

9
 Hernandez vs. NLRC, 176 SCRA 269.

10
 San Miguel Corporation vs. NLRC, supra.
 ===========================

SECOND DIVISION

[G.R. NO. 179061 : July 13, 2009]

SHEALA P. MATRIDO, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CARPIO MORALES, J.:

Sheala Matrido (petitioner) assails the May 31, 2007 Decision and August 1, 2007
Resolution of the Court of Appeals,1 which affirmed the trial court's Decision of
December 13, 2004 convicting her of qualified theft.

As a credit and collection assistant of private complainant Empire East Land Holdings,
Inc., petitioner was tasked to collect payments from buyers of real estate properties
such as Laguna Bel-Air developed by private complainant, issue receipts therefor, and
remit the payments to private complainant in Makati City.

On June 10, 1999, petitioner received amortization payment from one Amante dela
Torre in the amount of P22,470.66 as evidenced by the owner's copy2 of Official Receipt
No. 36547, but petitioner remitted only P4,470.66 to private complainant as reflected in
the treasury department's copy3 of Official Receipt No. 36547 submitted to private
complainant, both copies of which bear the signature of petitioner and reflect a
difference of P18,000.

On private complainant's investigation, petitioner was found to have failed to remit

payments received from its clients, prompting it to file various complaints, one of which
is a Complaint-Affidavit of September 21, 20004 for estafa, docketed as I.S. No. 2000-I-
32381 in the Makati Prosecutor's Office.

In the meantime or in October 2000, petitioner paid private complainant the total
amount of P162,000,5 drawing private complainant to desist from pursuing some
related complaints. A few other cases including I.S. No. 2000-I-32381 pushed through,
however, since the amount did not sufficiently cover petitioner's admitted liability
of P400,000.6

By Resolution of November 15, 2000,7 the City Prosecution Office of Makati dismissed

the Complaint for estafa for insufficiency of evidence but found probable cause to indict
petitioner for qualified theft under an Information which reads:

That on or about the 10th day of June 1999, in the City of Makati, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, being then a
Credit and Collection Assistant employed by complainant, EMPIRE EAST LAND
HOLDINGS, INC., herein represented by Leilani N. Cabuloy, and as such had access to
the payments made by complainant's clients, with grave abuse of confidence, intent of
gain and without the knowledge and consent of the said complainant company, did then
and there willfully, unlawfully and feloniously take, steal and carry away the amount
of P18,000.00 received from Amante Dela Torre, a buyer of a house and lot being
marketed by complainant company, to the damage and prejudice of the said
complainant in the aforementioned amount of P18,000.00.

CONTRARY TO LAW.8

On arraignment, petitioner entered a plea of "not guilty."9 After trial, Branch 56 of the

Regional Trial Court (RTC) of Makati, by Decision of December 13, 2004 which was
promulgated on April 28, 2005, convicted petitioner of qualified theft, disposing as
follows:

WHEREFORE, accused SHEALA P. MATRIDO is hereby sentenced to suffer the

indeterminate penalty of ten (10) years and one (1) day to twelve (12) years[,] five (5)
months and ten (10) days. ςηαñrοblεš νιr†υαl  lαω lιbrαrÿ

Accused is further ordered to pay complainant EMPIRE EAST LAND HOLDINGS, INC.,
the amount of P18,000.00.

SO ORDERED.10

By the challenged Decision of May 31, 2007,11 the Court of Appeals affirmed the trial
court's decision, hence, the present petition which raises the sole issue of whether the
appellate court "gravely erred in affirming the decision of the trial [court] convicting the
petitioner of the crime of qualified theft despite the fact that the prosecution tried to
prove during the trial the crime of estafa thus denying the petitioner the right to be
informed of the nature and cause of accusation against her"12

Petitioner posits that despite her indictment for qualified theft, the prosecution was
trying to prove estafa during trial, thus violating her right to be informed of the nature
and cause of the accusation against her.

The petition fails.

In Andaya v. People,13 the Court expounded on the constitutional right to be informed

of the nature and cause of the accusation against the accused.

x x x As early as the 1904 case of U.S. v. Karelsen, the rationale of this fundamental
right of the accused was already explained in this wise:

The object of this written accusation was - First. To furnish the accused with such a
description of the charge against him as will enable him to make his defense; and
second, to avail himself of his conviction or acquittal for protection against a further
prosecution for the same cause; and third, to inform the court of the facts alleged, so
that it may decide whether they are sufficient in law to support a conviction, if one
should be had. In order that this requirement may be satisfied, facts must be stated,
not conclusions of law. Every crime is made up of certain acts and intent; these must
be set forth in the complaint with reasonable particularity of time, place, names
(plaintiff and defendant), and circumstances. In short, the complaint must contain a
specific allegation of every fact and circumstances necessary to constitute the crime
charged.

It is fundamental that every element constituting the offense must be alleged in the
information. The main purpose of requiring the various elements of a crime to be set
out in the information is to enable the accused to suitably prepare his defense because
he is presumed to have no independent knowledge of the facts that constitute the
offense. The allegations of facts constituting the offense charged are substantial
matters and an accused's right to question his conviction based on facts not alleged in
the information cannot be waived. No matter how conclusive and convincing the
evidence of guilt may be, an accused cannot be convicted of any offense unless it is
charged in the information on which he is tried or is necessarily included therein. To
convict him of a ground not alleged while he is concentrating his defense against the
ground alleged would plainly be unfair and underhanded. The rule is that a variance
between the allegation in the information and proof adduced during trial shall be fatal
to the criminal case if it is material and prejudicial to the accused so much so that it
affects his substantial rights.14 (Citations omitted; underscoring supplied)

It is settled that it is the allegations in the Information that determine the nature of the
offense, not the technical name given by the public prosecutor in the preamble of the
Information. From a legal point of view, and in a very real sense, it is of no concern to
the accused what is the technical name of the crime of which he stands charged. It in
no way aids him in a defense on the merits. That to which his attention should be
directed, and in which he, above all things else, should be most interested, are the
facts alleged. The real question is not did he commit a crime given in the law some
technical and specific name, but did he perform the acts alleged in the body of the
information in the manner therein set forth.15

Gauging such standard against the wording of the Information in this case, the Court
finds no violation of petitioner's rights. The recital of facts and circumstances in the
Information sufficiently constitutes the crime of qualified theft.

As alleged in the Information, petitioner took, intending to gain therefrom and without
the use of force upon things or violence against or intimidation of persons, a personal
property consisting of money in the amount P18,000 belonging to private complainant,
without its knowledge and consent, thereby gravely abusing the confidence reposed on
her as credit and collection assistant who had access to payments from private
complainant's clients, specifically from one Amante Dela Torre.

As defined, theft is committed by any person who, with intent to gain, but without
violence against, or intimidation of persons nor force upon things, shall take the
personal property of another without the latter's consent.16 If committed with grave
abuse of confidence, the crime of theft becomes qualified.17

In précis, the elements of qualified theft punishable under Article 310 in relation to
Articles 308 and 309 of the Revised Penal Code (RPC) are as follows:

1. There was a taking of personal property.

2. The said property belongs to another.

3. The taking was done without the consent of the owner.

4. The taking was done with intent to gain.

5. The taking was accomplished without violence or intimidation against person, or

force upon things.

6. The taking was done under any of the circumstances enumerated in Article 310 of
the RPC, i.e., with grave abuse of confidence.18

In the present case, both the trial court and the appellate court noted petitioner's
testimonial admission of unlawfully taking the fund belonging to private complainant
and of paying a certain sum to exculpate herself from liability. That the money, taken
by petitioner without authority and consent, belongs to private complainant, and that
the taking was accomplished without the use of violence or intimidation against
persons, nor force upon things, there is no issue.

Intent to gain or animus lucrandi is an internal act that is presumed from the unlawful
taking by the offender of the thing subject of asportation. Actual gain is irrelevant as
the important consideration is the intent to gain.19

The taking was also clearly done with grave abuse of confidence. As a credit and
collection assistant of private complainant, petitioner made use of her position to obtain
the amount due to private complainant. As gathered from the nature of her functions,
her position entailed a high degree of confidence reposed by private complainant as she
had been granted access to funds collectible from clients. Such relation of trust and
confidence was amply established to have been gravely abused when she failed to remit
the entrusted amount of collection to private complainant.

The Court finds no rhyme or reason in petitioner's contention that what the prosecution
tried to prove during trial was estafa through misappropriation under Article 315(1)(b)
of the RPC.

x x x The principal distinction between the two crimes is that in theft the thing is taken
while in estafa the accused receives the property and converts it to his own use or
benefit. However, there may be theft even if the accused has possession of the
property. If he was entrusted only with the material or physical (natural) or de
facto possession of the thing, his misappropriation of the same constitutes theft, but if
he has the juridical possession of the thing, his conversion of the same constitutes
embezzlement or estafa.20 (Underscoring supplied) cralawlibrary

The appellate court correctly explained that conversion of personal property in the case
of an employee having material possession of the said property constitutes theft,
whereas in the case of an agent to whom both material and juridical possession have
been transferred, misappropriation of the same property constitutes estafa.21 Notably,
petitioner's belated argument that she was not an employee but an agent of private
complainant22 grants her no respite in view of her stipulation23 during pre-trial and her
admission24 at the witness stand of the fact of employment. Petitioner's reliance on
estafa cases involving factual antecedents of agency transactions is thus misplaced.
That petitioner did not have juridical possession over the amount or, in other words,
she did not have a right over the thing which she may set up even against private
complainant is clear.25 In fact, petitioner never asserted any such right, hence, juridical
possession was lodged with private complainant and, therefore, estafa was not
committed.

Petitioner's view that there could be no element of taking since private complainant had
no actual possession of the money fails. The argument proceeds from the flawed
premise that there could be no theft if the accused has possession of the property. The
taking away of the thing physically from the offended party is not elemental,26 as
qualified theft may be committed when the personal property is in the lawful possession
of the accused prior to the commission of the alleged felony.27

A sum of money received by an employee in behalf of an employer is considered to be

only in the material possession of the employee.28 The material possession of an
employee is adjunct, by reason of his employment, to a recognition of the juridical
possession of the employer. So long as the juridical possession of the thing
appropriated did not pass to the employee-perpetrator, the offense committed remains
to be theft, qualified or otherwise.29

x x x When the money, goods, or any other personal property is received by the
offender from the offended party (1) in trust or (2) on commission or (3) for
administration, the offender acquires both material or physical possession and juridical
possession of the thing received. Juridical possession means a possession which gives
the transferee a right over the thing which the transferee may set up even against the
owner. In this case, petitioner was a cash custodian who was primarily responsible for
the cash-in-vault. Her possession of the cash belonging to the bank is akin to that of a
bank teller, both being mere bank employees.30 (Italics in the original omitted;
underscoring and emphasis supplied)

That the transaction occurred outside the company premises of private complainant is
of no moment, given that not all business deals are transacted by employees within the
confines of an office, and that field operations do not define an agency. What is of
consequence is the nature of possession by petitioner over the property subject of the
unlawful taking.

On the penalty imposed by the trial court, which was affirmed by the appellate court ─
indeterminate penalty of 10 years and 1 day to 12 years, 5 months and 10 days:

The penalty for qualified theft is two degrees higher than the applicable penalty for
simple theft. The amount stolen in this case was P18,000.00. In cases of theft, if the
value of the personal property stolen is more than P12,000.00 but does not
exceed P22,000.00, the penalty shall be prision mayor in its minimum and medium
periods. Two degrees higher than this penalty is reclusion temporal in its medium and
maximum periods or 14 years, 8 months and 1 day to 20 years.

Applying the Indeterminate Sentence Law, the minimum shall be prision mayor in its
maximum period to reclusion temporal in its minimum period or within the range of 10
years and 1 day to 14 years and 8 months.31 The mitigating circumstance of voluntary
surrender being present, the maximum penalty shall be the minimum period
of reclusion temporal in its medium and maximum periods or within the range of 14
years, 8 months and 1 day to 16 years, 5 months and 20 days.

The Court thus affirms the minimum penalty, but modifies the maximum penalty
imposed.

WHEREFORE, the Decision of May 31, 2007 and Resolution of August 1, 2007 of the
Court of Appeals in CA-G.R. CR No. 29593 is AFFIRMED with MODIFICATION as to the
imposed penalty, such that petitioner, Sheala P. Matrido, is sentenced to suffer the
indeterminate penalty of 10 years and 1 day of prision mayor, as minimum, to 14
years, 8 months and 1 day of reclusion temporal, as maximum.

SO ORDERED.

Endnotes:

*
 Additional member per Special Order No. 658.

**
 Additional member per Special Order No. 635.

1
 The assailed issuances were penned by Justice Andres B. Reyes, Jr. with the concurrence of Justices Jose C. Mendoza and
Ramon M. Bato, Jr.; rollo, pp. 53-64, 73.

2
 Records, p. 107.

3
 Id. at 108.

4
 Id. at 6-8. Signed by its authorized representative, Junior Treasury Manager Leilani Cabuloy.

5
 Id. at 116-117.

6
 TSN, January 15, 2004, p. 16.

7
 Records, p. 2.

8
 Id. at 1.

9
 Id. at 62.

10
 Id. at 141.

11
 Penned by Presiding Judge Nemesio S. Felix.

12
 Rollo, p. 14.

13
 G.R. No. 168486, June 27, 2006, 493 SCRA 539.

14
 Id. at 557-558.

15
 Id. at 552-553 citing U.S. v. Lim San, 17 Phil. 273, 278-279 (1910).
16
 Revised Penal Code, Art. 308, par. 1.

17
 Id. at Art. 310.

18
 Vide People v. Bago, 386 Phil. 310, 334-335 (2000).

19
 Vide People v. Bustinera, G.R. No. 148233, June 8, 2004, 431 SCRA 284, 296.

20
 Santos v. People, G.R. No. 77429, January 29, 1990, 181 SCRA 487, 492.

21
 Rollo, p. 60.

22
 Id. at 17.

23
 Records, p. 65.

24
 TSN, January 15, 2004, pp. 3, 5.

25
 Rollo, p. 61.

26
 Luis B. Reyes, The Revised Penal Code (1998), pp. 687, 691.

27
 Roque v. People, 486 Phil. 288, 304 et seq. (2004)

28
 Id. at 310.

29
 Vide id. at 307.

30
 Chua-Burce v. Court of Appeals, 387 Phil. 15, 26 (2000).

31
 Cruz v. People, G.R. No. 176504, September 3, 2008.

========================

THIRD DIVISION

July 5, 2017

G.R. No. 218910

PEOPLE OF THE PHILIPPINES, Plaintiff -Appellee

vs.
LUTHER SABADO, SATURNINO SABADO y LOMBOY AND HOSPICIO HARUTA y MARTINEZ,
Accused
LUTHER SABADO y PANGANGAAN, Accused-Appellant.

DECISION

TIJAM, J.:

Accused-appellant Luther Sabado y Pangangaan assails in this appeal the Decision  dated January
1

13, 2015 of the Court of Appeals (CA) in CAG. R. CR-HC No. 05984,' which affirmed the
Decision  dated September 25, 2012 of the Regional Trial Court (RTC) of Imus, Cavite, Branch 20, in
2
Criminal Case No. 3638-07 convicting accused-appellant of the crime of Qualified Theft committed
against his employer, Diamond Pawnshop, Dasmariñas, Cavite branch.

The Facts

The Information charging accused-appellant and two other accused of Qualified Theft reads as
follows:

That on or about the 13th day of September 2006, in the Municipality of Dasmariñas, Province of
Cavite, a place within the jurisdiction of this Honorable Court, the above-named accused, LUTHER
P. SABADO, while employed at Diamond Pawnshop, with intent to gain and grave abuse of trust and
confidence reposed on him, and in conspiracy with accused SATURNINO L. SABADO and
HOSPICIO M. HARUTA who are non-employees of the said pawnshop, did then and there, willfully,
unlawfully and feloniously take, steal and carry away an assortment of jewelry and cellular phones
worth FIVE HUNDRED THOUSAND PESOS (₱500,000.00) Philippine Currency, belonging to said
Diamond Pawnshop without the owner's knowledge or consent, to his damage and prejudice.

CONTRARY TO LAW. 3

Accused-appellant pleaded not guilty to the charge while his co-accused remained at large.

Roger Alama (Alama) testified that, on September 13, 2006, at around 12:15 p.m., while he was at
Luzviminda 2, Dasmariñas, Cavite doing a regular task as collector of payments from the stall
owners thereat, he saw accused-appellant coming out of the pawnshop, as well as two unidentified
men standing near the pawnshop. He saw accused-appellant unlock the steel gate and called one of
the men who entered the pawnshop. The other unidentified man, who seemed to be a lookout,
stayed outside and was leaning against the glass window of the pawnshop. Thereafter, the man who
went with the accused-appellant inside the pawnshop came out carrying a small bag and
immediately left the place. Shortly thereafter, accused-appellant also came out, tied up and with a
packing tape plastered to his mouth. When the tape was removed, accused-appellant declared that
he was robbed inside the pawnshop by the two unidentified men.

Corroborating witness Gina Brogada (Brogada), the auditor and appraiser of Diamond Pawnshop,
confirmed that the pawnshop was robbed, and after the inventory, she found out that there were
missing items valued at PhP 582,200.00.

Meanwhile, Police Chief Inspector Dominador Arevalo (PCI Arevalo) and PO1 Efren Recare (PO1
Recare) testified that, on September 20, 2006, SPO 1 Antonio Valdez and SP02 Mario Sanchez
arrested the accused-appellant and his co-accused. During the arrest, accused-appellant and his co-
accused were in possession of the following: (1) 18-K yellow gold necklace with anchor pendant; (2)
18-K yellow gold men's ring with horseshoe design; and (3) 14-K yellow gold ring with scale design.
These items were turned over to the Dasmariñas Municipal Police Station. During a press briefing
called for the purpose, accused-appellant and his co-accused were presented to PCI Arevalo, who
was then the Chief of the Theft and Robbery Section of the Manila Police District. The photographs
of the accused were also published in a newspaper.

Meanwhile, when the said pieces of jewelry were showed to Brogada, the latter positively identified
the two men's ring and one necklace with pendant as those that were stolen from the pawnshop.

For his defense, accused-appellant alleged that on September 13, 2006, at around 12:00 noon, he
was working alone in the pawnshop. When he was about to go out and opened the gate, a dark-
skinned person wearing a hat blocked his way. He was then held at gunpoint to go inside the
pawnshop. As they were inside, another person carrying a bag came in. The man with the gun
ordered him to open the vault and threatened to kill him. After he opened the vault, his hands and
feet were tied and his mouth was covered with a tape. Then the two unidentified men took all the
contents of the vault and fled.

Accused-appellant also claimed that he was admitted back to work after the robbery incident. He
was even instructed by the owner of the pawnshop to conduct an inventory of the contents of the
vault and to make a cartographic sketch of the robbers. But after five or six days, he was invited to
the police station for some questioning and, thereafter, a criminal information was filed against him.

After trial, the RTC found accused-appellant guilty of the crime of Qualified Theft, thus:

In the case at bar, the amount stolen is Five Hundred Thousand Pesos (Php 500,000.00).
Pursuant to the ruling in Astudillo, the proper penalty is reclusion perpetua.

WHEREFORE, premises considered, this Court finds accused Luther Sabado GUILTY of the crime
of Qualified Theft under the Revised Penal Code and he is hereby sentenced to suffer the penalty
of reclusion perpetua. Accused is likewise ordered to pay the amount of Php 500,000.00 to private
complainant Diamond Pawnshop.

Let the instant case against Saturnina Sabado y Lomboy and Hospicio Haruta y Martinez, both of
whom are still at-large, be sent to the ARCHIVES until such time that they are apprehended and the
Court acquires jurisdiction over their persons.

SO ORDERED. 4

On appeal, the CA affirmed accused-appellant's conviction as follows:

WHEREFORE, premises considered, the Appeal is DISMISSED. The assailed Decision dated

September 25, 2012, issued by the Regional Trial Court, Branch 20, Imus, Cavite, in Criminal Case
No. 3638-07 is AFFIRMED.

SO ORDERED. 5

Hence, this appeal.

The Issue

Whether or not the guilt of accused-appellant for the crime charged has been proven beyond
reasonable doubt.

The Court's Ruling

The appeal lacks merit.

In Miranda v. People,  the Court ruled that:

6

The elements of the crime of theft are as follows: (1) that there be taking of personal property; (2)
that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the
taking be done without the consent of the owner; and (5) that the. taking be accomplished without
the use of violence against or intimidation of persons or force upon things. Theft becomes qualified
when any of the following circumstances under Article 310 is present: (1) the theft is committed by a
domestic servant; (2) the theft is committed with grave abuse of confidence; (3) the property stolen
is either a motor vehicle, mail matter or large cattle; (4) the property stolen consists of coconuts
taken from the premises of a plantation; (5) the property stolen· is fish taken from a fishpond or
fishery; and (6) the property was taken on the occasion of fire, earthquake, typhoon, volcanic
eruption, or any other calamity, vehicular accident or civil disturbance.
7

The elements aforementioned were all alleged and proved. First, there was a taking of personal
property consisting of pieces of jewelry, i.e. two men's rings and one necklace with
pendant. Second, said pieces of jewelry belong to the Pawnshop. Third, the taking of said pieces of
jewelry was with intent to gain. Intent to gain or animus lucrandi is an internal act that is presumed
from the unlawful taking by the offender of the thing subject of asportation. Actual gain is irrelevant
as the important consideration is the intent to gain. Fourth, the taking was obviously without the
consent of the Pawnshop; and, Fifth, the taking was accomplished without the use of violence
against or intimidation of persons or force upon things.8

Theft here became qualified because it was committed with grave abuse of confidence. Grave
abuse of confidence, as an element of theft, must be the result of the relation by reason of
dependence, guardianship, or vigilance, between the accused-appellant and the offended party that
might create a high degree of confidence between them which the accused-appellant
abused.  Accused-appellant, as established by the prosecution, is an employee of the Pawnshop.
9

Accused-appellant could not have committed the crime had he not been holding the position of the
trusted employee which gave him not only sole access to the Pawnshop's vault but also control of
the premises. The relevant portion of the RTC's disquisition reads:

Based on the extant records[,] it appears that accused Luther Sabado was a trusted employee of
Diamond Pawnshop.  In fact, the following circumstances show the trust and confidence reposed on
1âwphi1

him by the shop owners, to wit: he manages the shop alone; he has the keys to the locks of the
shop; and he has access to the vault and knows the combination of the same. x x x. 10

The management of Diamond Pawnshop clearly had reposed its trust and confidence in the
accused-appellant, and it was this trust and confidence which he exploited to enrich himself to the
damage and prejudice of his employer.

We view with disfavor accused-appellant's plea of acquittal on the ground that there exists. no
evidence which linked him directly to or showed his participation in the robbery. He underscores in
particular that nobody witnessed what transpired inside the pawnshop during the incident, hence, he
must be excused from any criminal liability. This contention is unmeritorious because even if it was
not shown that he personally took away the pieces of jewelry, his overt act of opening the steel gate,
facilitating the entry of one of his co-accused inside the pawnshop, and opening of the vault despite
his avowal that the vault was controlled by a time delay mechanism, showed his complicity in the
commission of the crime charged.

The CA correctly appreciated conspiracy between accused-appellant and the other accused. It has
already been settled that conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.  Here, conspiracy is inferred from
11

the conduct of accused-appellant and the other accused before, during, and after the commission of
the crime. In particular, accused-appellant's act of ushering in one of his co-accused inside the
pawnshop already constitutes an overt act of his coordination with and actual participation in the
common purpose or design to commit the felony.
Accordingly, We find no cogent reason to disturb the findings of the RTC which were affirmed by the
CA as they are fully supported by the evidence on record. Time and again, the Court has held that
the facts found by the RTC, as affirmed in toto by the CA, are as a general rule, conclusive upon this
Court in the absence of any showing of grave abuse of discretion. In this case, none of the
exceptions to the general rule on conclusiveness of said findings of facts are applicable. The Court
gives weight and respect to the RTC's findings in criminal prosecution because the latter is in a
better position to decide the question, having heard the witnesses in person and observed their
deportment and manner of testifying during the trial.

Absent any showing that the RTC and the CA have overlooked substantial facts and circumstances,
which, if considered, would change the result of the case, this Court gives deference to their
appreciation of the facts and of the credibility of witnesses.

WHEREFORE, the instant appeal is DISMISSED. The Decision dated January 13, 2015 of the Court
of Appeals in CA-G.R. CR-HC No. 05984, finding accused-appellant Luther
Sabado y Pangangaan GUILTY of the crime of Qualified Theft is AFFIRMED.

SO ORDERED.

NOEL GIMENEZ TIJAM

Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

DIOSDADO M. PERALTA *
LUCAS P. BERSAMIN
Associate Justice Associate Justice

BIENVENIDO L. REYES
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to the Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation,
I certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

MARIA LOURDES P.A. SERENO

Chief Justice
Footnotes

 Designated additional Member per Raffle dated March 15, 2017 vice Associate Justice
*

Francis H. Jardeleza.

 Penned by Associate. Justice Victoria Isabel A. Paredes, concurred in by Associate

1

Justices Magdangal M. De Leon and Jane Aurora C. Lantion; rollo, pp. 2-11.

2
 Penned by Presiding Judge Fernando L. Felicen; CA rollo, pp. 34-38.

3
 Id. at 34.

4
 Id. at 38.

5
 Rollo, p. 10.

6
 G.R. No. 176298, January 25, 2012.

7
 Id.

8
 Ringor v. People, G.R. No. 198904, December 11, 2013.

9
 People v. Cahilig, G.R. No. 199208, July 30, 2014.

10
 CA rollo, p. 36.

11
 People v. Romero, et al., G.R. No. 145166, October 8, 2003.

==========

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 209373               July 30, 2014

JOEL YONGCO and JULIETO LAÑOJAN, Petitioners,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

x-----------------------x

G.R. No. 209414

ANECITO TANGIAN, JR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

VELASCO, JR., J.:

The Case

This treats of the consolidated Petitions for Review on Certiorari under Rule 45 in relation to Rule
125 of the Rules of Court, assailing the Decision  and Resolution of the Court of Appeals (CA) in CA-
1

G.R. CR No. 00549-MIN, dated January 21, 2013 and September 10, 2013, respectively. Said
rulings affirmed the Regional Trial Court (RTC) Decision convicting petitioners of qualified theft.

The Facts

Petitioners Joel Yongco, Julieta Lafiojan, and Anecito Tangian, Jr. were employees of the City
Government of Iligan. Tangian worked as a garbage truck driver for the city, while Yongco and
Lañojanwere security guards assigned to protect the premises of the City Engineer’s Office (CEO).
On November 14, 2005, an Information was filed before the RTC, Branch 5 in Iligan City, Lanao del
Norte charging the three with Qualified Theft. The information docketed as Crim. Case No. 12092
reads:

That on or about April 16, 2005, in the City of Ilagan, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, being then regular and casual employees of the City
government as drivers and helpers respectively, of a garbage truck with Plate No. 496, conspiring
and confederating togetherand mutually helping each other, with grave abuse of confidence reposed
upon them by the city government, and with intent to gain, did then and there willfully, unlawfully and
feloniously take, steal and carry away the following articles, to wit: one (1) unit transmission, boom,
differential of Tamaraw and l-beam of Nissan with a total value of ₱40,000.00, belonging to the City
government of Ilagan, represented by Atty. Rommel Abragan of the City Legal Office, Iligan City,
withoutthe consent and against the will of the said owner in the aforesaid sum of ₱40,000.00,
Philippine Currency. 2

During the arraignment held on February 16, 2006, accused petitioners entered a plea of not guilty
tothe offense charged. Pre-trial was then conducted and closed on July 25, 2006. Thereafter, trial on
the merits ensued.

Version of the Prosecution

The prosecution presented as one ofits witnesses a casual employee of the city government, Pablo
Salosod,who testified that on April 16, 2005 at around 1:30 a.m., while attending a wake at the
Cosmopolitan Funeral Parlor, he was fetched and requestedby petitioner Tangian to accompany him
to the CEO. At the office garage, Salosod and his fellow garbage collectors were allegedly directed
by petitioners Tangian and Yongco to load car parts that petitioners considered aswaste items, the
subject items of the theft, on the truck driven by Tangian. They then drove to Tominobo, Iligan City
where the materials were unloaded in front of Delfin Junk Store, and before the truck left the shop,
Salosod allegedly saw petitioner Lañojan giving a thumbs-up sign to Tangian. On the way back,
Tangian allegedly confessed to Salosod that it was Lañojan who requested that the items be brought
at the junk shop. Another employee, Rommel Ocaonilla, corroborated the testimony of Salosod.
Prosecution witness Oliveros Garcia meanwhile testified witnessing the unloading of the items in
front of the junk store, after which, Lañojan covered the items up with a sack. The following morning,
he allegedly saw Lañojan’s brother-in-law, who coincidentally works at the shop, take the items
inside.

Witnesses Dioscoro Galorio and Atty. Ulysses Lagcao, employee and consultant of the city
government, respectively, testified that they conducted investigations relative to the incidentand
found out that the items stolen consisted of one Nissan transmission,one unit boom, one Nissan I-
beam, and one differential of Tamaraw, with total valuation of PhP 12,000. Upon their investigation,
they recommended tothe city legal officer the filing of the present criminal case against the three
petitioners.

Version of the Defense

In defense, petitioners testified intheir behalves. Their testimony is summarized by the CA in the
Decision now on appeal in the following wise:

Joel Yongco, 34, single, x x x and a casual employee, testified that, on August 9, 2004, he was
issued a Job Order and detailed at the Civil Security Unit (CSU). He was assigned to guard the
building installation of the CEO. On April 15, 2005, he was on duty with his companion, one Mr.
Quintana. They relieved Lañojan and one Mr. Enumerables. Lañojan gave him (Yongco) four gate
passes and saidthat the area would have to be cleared because the "Bacod" Iliganvehicle would be
arriving. Yongco read the entries on one of[the] gate passes. Theyread: "Loaded assorted scraps
with remark to be thrown atthe dump site." At the bottom of the gate pass was the "note" of
EngineerCabahug with the signatures of the guards, Lañojan and Enumerables. From 5:00 PM to
12:00 midnight on April 15, 2005, there was only one shipment of scrap iron to the dump site. The
dump truck driven by Tangian entered the CEO premises at around 11:00 o’clock in the evening of
the same date. Tangian went to the yard where the scrap iron were situated and asked Yongco to
accompany and help him. Tangian gathered the scrap materials and the four of them (Tangian,
Yongco, and the 2 helpers of Tangian) loaded the said scrap to the dump truck. At around 12:45
P.M., after loading the items, Tangian drove away without giving a gate pass to the guards on duty.
Yongco did not ask Tangian for a gate pass because Yongco had one companion in the guard
house to get the gate pass.

Julieto Lañojan, 48, who was working in the CSU division for 20 years and assigned to guard the
CEO, testified that he was not on duty on April 15 and 16, 2005; he was on duty on April 14, 2005 at
7:00 A.M. up to April 15, 2005 of the same time. When Yongco and Quintana relieved him on April
15, 2005 at 7:00 in the morning, he gave the four gate passes which were used to ship outassorted
scrap irons to them to be kept for the file. Engineer Cabahug was the one who directed the removal
of the scrap iron because the area of the CEO would have to be cleared since new trucks for the
government were coming. His house, which was along the national highway, was about 40-50
metersaway from Delfin Junk Store. He knew Oliveros Garcia who was a kagawad of Tominobo,
Iligan City. Aside from that, Garcia had filed an ejectment case against him (Lañojan), which was still
pending in court.

xxxx

Anecito Tangian, Jr., 59, garbage truck driver at the City Engineer’s Office for 16 years, testified that
his highest level of educational attainment was Grade I. It was his tour of duty on April 15, 2005 at
9:00 o’clock in the evening up to April 16, 2005 at 6:00 o’clock in the morning. At around 5:30 in the
morning of April 15, 2005, Lañojan asked him to load scrap materials onto the garbage truck and to
bring them to the Delfin Junk Store in Tominobo. He asked Lañojan if there were any problems
about the loading ofthe said items. Lañojan answered that there were no problems about the loading
of the same, that the City Garbage would have to be cleared considering that "BACOD" trucks would
be arriving at thatarea. He followed Lañojan because the latter was the guard at the City Garage.
When hearrived for duty at the City Garage at around 9:00 in the evening, Yongco asked him if
Lañojan already informed him about the loading of the items. After that he checked up the garbage
truck while Yongco and the two helpers were loading the items. He did not know how many items
were loaded because he only helped the three of them during the loading of the differential. After
loading the scrap materials, Tangian and the two helpers drove away from the City Garage. They
dropped by the Cosmo Funeral Homes for more than an hour before they proceeded to Tominobo.
When they reached Delfin Junk Store, Lañojan gave a thumbs-up sign to Tangian, which meant
okay. He then left and started his work collecting garbage. 3

Ruling of the Regional Trial Court

On April 11, 2008, the RTC held petitioners liable for qualified theft via conspiracy. The dispositive
portion of the Decision reads:

WHEREFORE, premises considered, the Court finds the accused Julieto Lañojan, Anecito Tangian,
Jr., and Joel Yongco GUILTY beyond reasonable doubt of the crime of Qualified Theft defined and
penalized under Article 310 in relation to Article 309 of the Revised Penal Code, and the said
accused are hereby sentencedto a penalty of imprisonment of six (6) years, eight (8) monthsand
twenty (20) days of prision correccionalmaximum as the minimum term, to ten (10) years and eight
(8) months of prision mayormaximum, as the maximum term, of their indeterminate sentence
including the accessory penalties thereof.

SO ORDERED. 4

Aggrieved, petitioners, in their appeal, prayed that the CA reverse the RTC Decision. Petitioner
Tangian reiterated in his Brief that he should not be considered as a conspirator since he merely
innocentlyobeyed Lañojan’s instructions on the assumption that the latter was his superior and that
Lañojan was authorized to get rid of the scrap materials in the CEO premises and that he had no
criminal intent whatsoever.

In their joint brief, Yongco and Lañojan also disclaimed the existence of a conspiracy. Yongco, in his
defense, argued that Tangian and his two other helpers asked for his assistance which he extended
ingood faith, in view of Lañojan’s statement earlier that day that the office garage has to be cleared.
Lañojan, on the other hand, insisted that he cannot be considered as a conspirator since he was not
present at the time of taking, and that the mere giving of a thumbs-up sign to Tangian when the latter
delivered the materials to the junk shop does not amount to conspiracy.

Ruling of the Court of Appeals

On January 21, 2013, the CA issued the assailed Decision denying petitioners’ appeals. In affirming
the RTC Decision in toto, the CA ruled that there was indeed conspiracy because Tangian could
nothave taken out the items without a gate pass, but with the security guard Yongco’s participation,
he was able to do justthat. The CA also ruled that it is implausible that Tangian would just leave the
items in front of the junk shop unattended. Thus, the appellate court appreciated the testimonies of
the prosecution witnesses that Lañojan’s presence was not merely coincidental and that his thumbs-
up and his subsequent act of covering the materials with sacks indicate that the plan was for him to
receive the said items. Petitioners, via motion for reconsideration, sought the CA’s reversal of the
Decision only for the appellate court to deny the same through its challenged Resolution dated
September 10, 2013.
Not contented with the adverted Decision of the CA as reiterated in the Resolution, petitioners
Yongco and Lañojan jointly filed a Petition for Review on Certiorari while petitioner Tangian
separately filed his own.  The two petitions were later consolidated by this Court for resolution
1âwphi1

herein.

The Issue

As with most criminal cases, the main issue in the instant case is whether or not the CA erred in
sustaining petitioners’ conviction. Central to resolving this issue is determining whether or not there
indeed existed conspiracy between petitioners in committing the offense charged.

The Court’s Ruling

The petitions are bereft of merit.

Article 310, in relation to Art. 308,of the Revised Penal Code (RPC) defines Qualified Theft, thusly:

ART. 308. Who are liable for theft.—Theft is committed by any person who, with intent to gain but
without violence, against, or intimidation of persons nor force upon things, shall take personal
property of another without the latter’s consent.

Theft is likewise committed by:

1. Any person who, having found lost property, shall fail to deliver the same to the local
authorities or to its owner;

2. Any person who, after having maliciously damaged the property of another, shall remove
or make use of the fruits or objects of the damage caused by him; and

3. Any person who shall enter an enclosed estate or a field where trespass is forbidden or
which belongs to another and without the consent of its owner, shall hunt or fishupon the
same or shall gather fruits, cereals, or other forestor farm products.

xxxx

ART. 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, fishtaken 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. (emphasis added)

Synthesizing the foregoing provisions, the elements of Qualified Theft, committed with grave abuse
of discretion, can simply be enumerated as follows:

1. Taking of personal property;

2. That the said property belongs to another;

3. That the said taking be done with intent to gain;

 4. That it be done without the owner’s consent;

5. That it be accomplished without the use of violence or intimidation against persons, nor of
force upon things; and

6. That it be done with grave abuse of confidence. 5

As correctly observed by the appellatecourt, all of the elements of Qualified Theft are present in this
case, viz:

There is no dispute that the items (transmission, boom arm, differential assembly, and I-beam) which
are the subject matter of this case belong to the CEO of Iligan City.  There is no dispute that these
1âwphi1

items, although considered "heap of scrap," have not yet been declared unserviceable or waste by
the proper authority or office. Nor have they been marked for proper disposal. Unless properly
disposed in accordance with Section 379 of the Local Government Code, these items are still
government properties or owned by the City of Iligan.

There is also no dispute that these items were taken away from the CEO and were already under
completeand effective control of the persons taking the same. This is because these items were
loaded onto the garbage truck driven by Tangian and brought to Tominobo at the Delfin Junk Store.

Apparently, the taking of these items was without the consent of the CEO of Iligan City because
there was no gate pass issued to that effect. Evidence shows that when the garbage truck left the
premises of the CEO, no gate pass was surrendered by Tangian. Yongco did not bother to ask for a
gate pass on the pretext that there was another guard on duty at the gate.

Intent to gain or animus lucrandiis an internal act that is presumed from the unlawful taking by the
offender of the thing subject to asportation. Actual gain is irrelevant as the important consideration is
the intent to gain. Since these items werebrought to the junk store, intent to gain becomes obvious.
The presumption of animus lucrandihas not been overturned.

It is equally patent that the taking of these items was done with grave abuse of confidence. The
accused in this case, itbears stressing, were guards and drivers with access tothe entrance and exit
of the CEO premises. In other words,they enjoyed the trust and confidence reposed on them by their
employer (the City ofIligan) to haveaccess throughout the CEO premises on account of their
respective duties. More so since the primary function of the CSU is to guard the properties, including
the said items, of the CEO. It was this trust and confidence that was gravely abused by them that
makes the theft qualified.6

Concisely stated, the fact of taking without consent is indubitable. Indeed, petitioners hinge their plea
for acquittal and supporting argument primarily on their lack of criminal intent and the observed
conspiracy.

Addressing the issue head on, We uphold the findings of the appellate court. No error can be
ascribed to the CA when it determined the existence of conspiracy between and among petitioners
in this case.

There is conspiracy when two or more persons come to an agreement concerning a felony and
decide to commit it.  Well-settled is the rule that in conspiracy, direct proof of a previousagreement is
7

not necessary as it may be deduced from the mode, method, and manner by which the offense was
perpetrated.  It may be inferred from the acts of the accused before, during, or after the commission
8
of the crime which, when taken together, would be enough to reveal a community of criminaldesign,
as the proof of conspiracy is frequently made by evidenceof a chain of circumstances. 9

In the case at bar, even though there is no showing of a prior agreement among the accused, their
separate acts taken and viewed together are actually connected and complementedeach other
indicating a unity of criminal design and purpose. 10

Tangian’s complicity in the illicit deedwas manifest from the fact, as he himself admitted, that he was
the one who personally transported the stolen items from the CEO to the junkshop. His claim that he
was not aware of any irregularity in the act he performed is rendered dubious by his 16 years of
service as truck driver for the City of Iligan. To be sure, his record of service argues against his claim
of ignorance of the standard protocol that a gate pass to be issued by the CEO property custodian
should first be secured before taking out items from the CEO compound, including alleged waste
materials. He should also know better than to assume that Lañojan can authorize the withdrawal of
items without the requisite gate pass since Lañojan’s duty, as security guard, is precisely to prevent
the same.

Similarly, Yongco’s claim of good faith is belied by his own admission that he knew of the office
procedure that a gate pass is required every time something is taken out of the CEO premises. In
fact, four gate passes were given to him that morning by Lañojan, covering waste materials
withdrawn during the latter’s shift. At the very least, this should have reminded him of his duty to
demand a gate pass for property leaving the CEO premises. Neither memory lapses orlapses in the
performance of his duty will explain Yongco’s failure to demand a gate pass.The only viable
explanation is that he was in connivance with other petitioners. 11

Lastly, the RTC, with valid reason, tagged Lañojan as having instigated and marshalled the entire
scheme. To quote the trial court:

x x x As shown above, it appears that Lañojan broached the idea to Yongco that the items subject of
this case will be withdrawn under the pretext of clearing the CEO scrap yard of unserviceable waste
materials. Then Lañojan gave Yongco 4 gate passes apparently to be used to coverup or
camouflage the actual withdrawallater that evening. Then Lañojan told Tangian to load the items
under the same ploy of clearing the scrap yard of unserviceable waste materials and that they will
not encounter any problem. Finally, Lañojan was seen by Brgy. Kag. Oliveros Garcia at 1:30 o’clock
in the morning of April 16, 2005 receiving the items as they were dumped near the Delfin Junk
Store,Tominobo, Iligan City. After the items were dumped, Lañojan then gave Tangian the "thumbs-
up" sign, meaning everything is okay – clear proof of meeting of minds between Tangian and
Lañojan, and their collusion to steal the items under the pretext of disposing unserviceable waste
materials. This non-verbal "thumbs-up" sign was also seenby the truck helper Salosod.  x x x 12

In conspiracy, the act of one is the act of all. Once conspiracy is established, all the conspirators are
answerable as co-principals regardless of the extent or degree of their participation.  The guilt of one
13

is the guilt of all. It is common design which is the essence of conspiracy—conspirators may act
separately or together in different manners but always leading to the same unlawful result. The
character and effect of conspiracy are not to be adjudged by dismembering it and viewing its
separate parts but only by looking at it as a whole—acts done to giveeffect to conspiracy may be, in
fact, wholly innocent acts.  Applying this doctrine in the case at bench, it can reasonably be
14

concluded that despite Lañojan’s lack of physical participation in hauling the items to Tangian’s truck
and bringing them to the junk shop, he can still be liable for Qualified Theft via conspiracy. All told,
there is no cogent reason for us todisturb the findings of the appellate court, affirmatory of those of
the trial court.
WHEREFORE, premises considered, the consolidated petitions are hereby DENIED for lack of
merit. The CA's January 21, 2013 Decision and September 10, 2013 Resolution in CA-G.R. CR No.
00549-MIN are hereby AFFIRMED.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

DIOSDADO M. PERALTA
Associate Justice

MARTIN S. VILLARAMA, JR.* JOSE CATRAL MENDOZA

Associate Justice Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

* Acting member per Special Order No. 1691 dated May 22, 2014.

 Penned by Associate Justice Romulo V. Borja and concurred in by Associate Justices Ma.
1

Luisa C. Quijano-Padilla and Marie Christine Azcarraga-Jacob.

2
 Rollo (G.R. No. 209373), p. 12.
 3
 Id. at 15-17.

4
 Id. at 108-109.

5
 People v. Mirto, G.R. No. 193497, October 19, 2011, 659 SCRA 796, 807.

6
 Rollo (G.R. No. 209373), pp. 19-20.

7
 RPC, Art. 8(2).

8
 Aquino v. Paiste, G.R. No. 147782, June 25, 2008, 555 SCRA 255, 271-272.

9
 People v. Anticamara, G.R. No. 178771, June 8, 2011, 651 SCRA 489, 506.

10
 Rollo (G.R. No. 209373), p. 104.

11
 Id. at 26.

12
 Id. at 107.

13
 Aquino v. Paiste, supra note 8, at 272.

 Preferred Home Specialties, Inc. v. Court of Appeals, G.R. No. 163593, December 16,
14

2005, 478 SCRA 387, 415.

======

[ G.R. No. 210318, July 28, 2020 ]

JANICE RESIDE Y TAN, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

DECISION

REYES, J. JR., J.:

The present Petition for Review on Certiorari1 filed under Rule 45 of the Rules of Court assails the
June 28, 2013 Decision2 and the November 26, 2013 Resolution3 of the Court of Appeals (CA) in
CA-G.R. CR No. 34634, which affirmed with modification the April 8, 2011 Decision4 of the Regional
Trial Court (RTC) of Las Piñas City, Branch 201 in Criminal Case No. 06-0052 convicting petitioner
Janice Reside y Tan (petitioner) for the crime of estafa penalized under paragraph 1(b), Article 315
of the Revised Penal Code (RPC).

The Facts

Petitioner was tried in the RTC under the following Information:

That on various dates from 2001 to 2005, in the City of Las Piñas, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused with unfaithful and abuse of
confidence did then and there willfully, unlawfully, [and] feloniously defraud complainant school
TREASURY OF THE GOLDEN WORD SCHOOL, INC. herein represented by its President
Carmelita C. De Dios in the amount of [P]1,721,010.82 in the following manner, to wit: the accused
then employed as a Pre-School and Grade School Principal in complainant school authorized to
collect and receive tuition and other school payments of students with the express obligation to remit
said collection to the school, received a total collection from tuition and other school payments of
preschool and grade school students in the amount of [P]1,721,010.82 but said accused, once in
possession of the amount and far from complying with her obligation, misappropriated, misapplied
and converted to her own use the amount of [P]1,721,010.82 and despite repeated demands made
by the complainant school accused failed and refused and still fails and refuses to return said
amount to the damage and prejudice of said complainant school.

CONTRARY TO LAW.5

During her arraignment on September 1, 2006, petitioner pleaded "not guilty" to the charge.6

The prosecution alleged that from 2001-2005, petitioner was the pre-school and grade school
principal of Treasury of the Golden Word School, Inc. (TGWSI). As such, she was entrusted by the
President of TGWSI Carmelita C. De Dios (De Dios) to: one, collect the tuition fees from the parents
and students; two, issue official receipts therefor; and three, to remit the same to the
school.7 Sometime in 2005, Marie Gil Padilla (Padilla), Treasurer of TGWSI, noticed that petitioner
stopped reporting for work.8 This prompted De Dios to review the books of TGWSI and she
discovered the non-remittance of some tuition fees received by petitioner.9 Further investigation
revealed that petitioner has been issuing temporary receipts which was against the policy of
TGWSI.10 De Dios then tried to meet with petitioner to discuss the matter, but to no avail.11 Thus,
De Dios sought the assistance of the barangay where petitioner resided.12 At the barangay hall,
petitioner admitted that De Dios' allegations were true.13 Thereafter, the parties agreed to settle and
a promissory note was signed by petitioner undertaking to pay De Dios within three months.14 Due
to petitioner's failure to pay upon maturity of the promissory note and despite demand, De Dios filed
a criminal complaint for estafa.15

In defense, petitioner averred that, aside from Padilla, she was allowed to acknowledge payments
from the students for which she issued the necessary receipts.16 She denied the allegation that she
failed to remit the tuition fees and claimed that prior to the filing of the case, De Dios examined the
receipts and informed her that no discrepancy was found.17 Lastly, petitioner posited that she
signed the promissory note under duress.18

In its April 8, 2011 Decision, the RTC held that (1) all the statements of account, official receipts, as
well as temporary receipts contained the signature of petitioner, thus, signifying that she received
certain amounts of money; (2) there was misappropriation when petitioner failed to remit to the
school the entire amount of tuition fees received by her as shown by the discrepancy between the
official receipts issued to the students and the remittance voucher slips; and (3) as to the
requirement of demand, petitioner admitted in her Counter-Affidavit that a demand letter was mailed
to her on November 3, 2005.19 The dispositive portion of which, states:

WHEREFORE, premises considered, the Court hereby finds [petitioner] GUILTY beyond reasonable

doubt of the crime of estafa defined and penalized under Article 315, paragraph 1(b) of the [RPC]
and taking into consideration the Indeterminate Sentence Law, [petitioner] is sentenced to suffer an
indeterminate penalty of imprisonment of EIGHT (8) YEARS of [prision mayor] in its medium period
as minimum to SEVENTEEN (17) YEARS and FOUR (4) MONTHS and ONE (1) DAY of [reclusion
temporal] as maximum with all the accessory penalties provided for by law and to indemnify the
private complainant the sum of [P]1,721,010.82, and to pay ten percent (10%) attorney's fees x x x[.]

SO ORDERED.20

Upon appeal, the CA agreed with the RTC that petitioner was guilty of estafa. However, the CA
found that, per the documentary evidence presented, the total sum that petitioner failed to remit to
the school amounts only to P134,462.90.21 Hence, the CA modified the penalty imposed, viz.:

WHEREFORE, the Decision dated 8 April 2011 of the [RTC] of Las Piñas City, Branch 201, in
Criminal Case No. 06-0052 is AFFIRMED with MODIFICATIONS. [Petitioner] is hereby sentenced to
an indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to
seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum.
[Petitioner] is ordered to indemnify private complainant [De Dios] the sum of [P]134,462.90, plus ten
percent (10%) thereof as attorney's fees.

SO ORDERED.22

Aggrieved, petitioner moved for the CA to reconsider its Decision, but the same was denied in a
Resolution23 dated November 26, 2013.

Hence, this petition.

The Court's Ruling

The Court finds that petitioner is guilty, not of estafa, but of qualified theft.

The RTC and the CA rulings are both predicated on their finding that all the elements of estafa under
paragraph 1(b), Article 315 of the RPC have been sufficiently established by the prosecution.

We disagree.

Article 315 of the RPC punishes criminal fraud resulting to damage capable of pecuniary
estimation.24 The elements of estafa through misappropriation under pararagraph 1(b), Article
31525 of the RPC are:

1. That money, goods or other personal properties are received by the offender in trust or on
commission, or for administration, or under any other obligation involving the duty to make
delivery of, or to return the same;

2. That there is a misappropriation or conversion of such money or property by the offender

or denial on his part of the receipt thereof;

3. That the misappropriation or conversion or denial is to the prejudice of another; and

4. That there is a demand made by the offended party on the offender.26

Contrary to the identical ruling of the courts a quo, the first element of the crime charged is absent.
Verily, when the money, goods, or any other personal property is received by the offender from the
offended party (1) in trust, or (2) on commission, or (3) for administration, the offender acquires both
material or physical possession and juridical possession of the thing received.27 Stated plainly,
mere receipt of the money, goods, or personal property does not suffice, it is also essential that the
accused acquired both material or physical possession and juridical possession of the thing
received.28 Juridical possession refers to a possession which gives the transferee a right over the
thing transferred and this, he may set up even against the owner.29

As early as 1956, the Court, in Guzman v. Court of Appeals,30 already demarcated the line between
possession by an employee who receives funds in behalf of the company and possession of an
agent, thus:

There is an essential distinction between the possession by a receiving teller of funds received from
third persons paid to the bank, and an agent who receives the proceeds of sales of merchandise
delivered to him in agency by his principal. In the former case, payment by third persons to the teller
is payment to the bank itself; the teller is a mere custodian or keeper of the funds received, and has
no independent right or title to retain or possess the same as against the bank. An agent, on the
other hand, can even assert, as against his own principal, an independent, autonomous, right to
retain the money or goods received in consequence of the agency; as when the principal fails to
reimburse him for advances he has made, and indemnify him for damages suffered without his
fault[.]

Therefore, as it now stands, a sum of money received by an employee in behalf of an employer is
considered to be only in the material possession of the employee. Notably, such material possession
of an employee is adjunct, by reason of his employment, to a recognition of the juridical possession
of the employer. As long as the juridical possession of the thing appropriated did not pass to the
employee, the offense committed is theft, qualified or otherwise.31

The foregoing principle is illustrated in Chua-Burce v. Court of Appeals32 where the manager of a

bank located in Calapan, Mindoro discovered a shortage in their cash-in-vault amounting to
P150,000.00. After due investigation, a criminal complaint was filed against the person primarily
responsible, i.e., the bank's Cash Custodian. The RTC and the CA both found the cash custodian
guilty of estafa under paragraph 1(b), Article 315 of the RPC. This Court, however, acquitted the
accused ratiocinating that, being a mere cash custodian, the latter had no juridical possession over
the missing funds and, thus, cannot be convicted of estafa.

Likewise, in Roque v. People,33 where it involved possession of money in the capacity of a bank

teller, the Court said:

In People v. Locson, x x x [we] considered deposits received by a teller in behalf of a bank as being
only in the material possession of the teller. This interpretation applies with equal force to money
received by a bank teller at the beginning of a business day for the purpose of servicing withdrawals.
Such is only material possession. Juridical possession remains with the bank. In line with x x x
with People v. De Vera, if the teller appropriates the money for personal gain then the felony
committed is theft and not estafa. (Citations omitted)

Similarly, in Benabaye v. People,34 a loans bookkeeper of a bank authorized to collect and/or

accept loan payment from the bank's clients and issue provisional receipts therefore, and remit such
payments to her supervisor was found to have no juridical possession, but only a physical or
material possession of the cash payments she receives.

In the case at bench, it cannot be gainsaid that petitioner, in addition to her duties as principal, was
authorized to receive or collect matriculation fees from the parents and/or students enrolled in
TGWSI. Per a verbal agreement with De Dios, petitioner shall forward all payments received
together with the remittance voucher slips to the school.35 As it happens, the money merely passes
into petitioner's hands and her custody thereof is only until the same is remitted to the school.
Consequently, petitioner, as principal and temporary cash custodian of TGWSI, acquires only
physical or material possession over the unremitted funds. Thus, being a mere custodian of the
unremitted tuition fees and not, in any manner, an agent who could have asserted a right against
TGWSI over the same, petitioner had only acquired material and not juridical possession of such
funds and consequently, cannot be convicted of the crime of estafa as charged.

Nevertheless, a reading of the information and an appreciation of the evidence show qualified theft.
Applying the variance doctrine under Section 436 in relation to Section 5,37 Rule 120 of the Revised
Rules on Criminal Procedure, it is proper to hold petitioner guilty of qualified theft because the latter
crime was necessarily included in the crime charged in the information.

In gist, the Information alleged that petitioner, as principal of TGWSI, authorized to collect and
receive tuition and other school payments of students, misappropriated, misapplied and converted to
her own use the amount she received and failed and refused to return the money to TGWSI despite
repeated demands to the damage and prejudice of TGWSI.

Theft is defined under Article 308 of the RPC, viz.:

ART. 308. Who are liable for theft. — Theft is committed by any person who, with intent to gain but
without violence, against, or intimidation of neither persons nor force upon things, shall take personal
property of another without the latter's consent.

Theft is likewise committed by:

1. Any person who, having found lost property, shall fail to deliver the same to the local
authorities or to its owner;

2. Any person who, after having maliciously damaged the property of another, shall remove
or make use of the fruits or objects of the damage caused by him; and

3. Any person who shall enter an enclosed estate or a field where trespass is forbidden or
which belongs to another and without the consent of its owner, shall hunt or fish upon the
same or shall gather fruits, cereals, or other forest or farm products.

While Article 310 of the RPC reads:

ART. 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. (Emphasis supplied)

Stated otherwise, the essential elements of qualified theft are as follows: (1) there was a taking of
personal property; (2) the said property belongs to another; (3) the taking was done without the
consent of the owner; (4) the taking was done with intent to gain; (5) the taking was accomplished
without violence or intimidation against person, or force upon things; and (6) the taking was done
under any of the circumstances enumerated in Article 310 of the RPC, i.e., with grave abuse of
confidence.38
The foregoing elements are present in this case. First, the prosecution was able to establish that
petitioner, as part of her duty as principal of TGWSI, received tuition fees and other school payments
from students and failed to remit the same to the school. Second, the money taken by petitioner
belongs to TGWSI. The Court, in Paramount Insurance Corp. v. Spouses Remondeulaz,39 clarified
that there may be theft even if the accused has possession of the property; if he was entrusted only
with the material or physical (natural) or de facto possession of the thing, his misappropriation of the
same constitutes theft. Thus, the conversion of personal property in the case of an employee having
material possession of the said property constitutes theft, whereas in the case of an agent to whom
both material and juridical possession have been transferred, misappropriation of the same property
constitutes estafa. Third, the absence of TGWSI's consent was shown in its attempts to account for
the missing money through a review of its books and to recover it from petitioner. Fourth, intent to
gain on the part of the petitioner was likewise established. Intent to gain is an internal act that is
presumed from the unlawful taking by the offender of the thing subject of asportation.40 Here,
petitioner admitted to the taking of the funds owing to TGWSI and even agreed to settle by signing a
promissory note undertaking to pay De Dios. Fifth, no violence or intimidation against persons nor of
force upon things was employed by petitioner in obtaining the funds. Sixth, the taking was clearly
done with grave abuse of confidence. As principal of TGWSI, petitioner was authorized to collect
school fees. Such position or relation of trust and confidence was aptly established to have been
gravely abused when she failed to remit the entrusted amount of collection to TGWSI.

The circumstances obtaining in this case are not novel.

In Ringor v. People,41 the Court affirmed the CA's Decision holding Ringor guilty of qualified theft,
contrary to the RTC's Decision finding her guilty of estafa, the crime charged in the information. We
held that as Ringor merely had physical possession of the merchandise, she can only be held liable
for qualified theft despite proof of her misappropriation of the merchandise. Similarly, in the case
of Santos v. People,42 the Court also found petitioner Santos' conviction for theft correct under an
information naming the crime charged as estafa. And, in People v. Euraba,43 the Court found the
CA's affirmation of the guilty verdict for qualified theft against the accused-appellant in order since
the factual allegations in the information sufficiently established all the elements of qualified theft and
such elements were duly proven by the prosecution.

We now discuss the penalty in light of Republic Act (R.A.) No. 10951,44 which took effect on
September 16, 2017.  As stated elsewhere in this Decision, Article 310 of the RPC prescribes
1âшphi1

penalties next higher by two degrees than those specified in Article 309 if the theft was committed
with, among others, grave abuse of confidence. Article 309, as amended by R.A. No. 10951,45 now
prescribes the penalty of prision correccional in its minimum and medium periods, if the value of the
property stolen is more than P20,000.00, but does not exceed P600,000.00. Applying Article 309, as
amended, and Article 310, qualified theft involving the amount of P134,462.90 is now punishable
by prision mayor in its medium and maximum periods. After computing the periods for this adjusted
penalty per Article 6546 of the RPC and since no aggravating or mitigating circumstance is present,
the imposable penalty is from 9 years, 4 months and 1 day to 10 years and 8 months. As this
duration exceeds one year, the Indeterminate Sentence Law becomes applicable. We, thus, set the
maximum term of 9 years, 4 months and 1 day of prision mayor. The minimum term is, thus, set at 5
years, 5 months and 11 days of prision correccional, which is within the range of penalty next lower
to that prescribed by the RPC for qualified theft.47

Lastly, legal interest at the rate of 6% per annum is also imposed on the actual damage due to
private complainant TGWSI amounting to P134,462.90 from the date of finality of this judgment until
full payment, in line with current policy.
WHEREFORE, the petition is DENIED. The Decision and the Resolution dated June 28, 2013 and
November 26, 2013, respectively, of the Court of Appeals in CA-G.R. CR No. 34634 are
hereby AFFIRMED with MODIFICATION. Petitioner Janice Reside y Tan is sentenced to suffer the
indeterminate sentence of 5 years, 5 months and 11 days of prision correccional as minimum term to
9 years, 4 months and 1 day of prision mayor as maximum term; and is ordered to pay the private
complainant the sum of P134,462.90 as actual damages, subject to interest at the rate of 6% per
annum from the date of finality of this judgment until fully paid.

SO ORDERED.

Peralta, C.J. (Chairperson), Caguioa, Lazaro-Javier, and Lopez, JJ., concur.

Footnotes

1 Rollo, pp. 10-34.

2 Penned by Associate Justice Jane Aurora C. Lantion, with Associate Justices Vicente S.E.
Veloso and Eduardo B. Peralta, Jr., concurring; id. at 68-80.

3 Id. at 81-82.

4 Penned by Presiding Judge Lorna Navarro-Domingo; id. at 62-65.

5 Dated May 8, 2006; id. at 69.

6 Id.

7 Id. at 97.

8 Id.

9 Id. at 98.

10 Id.

11 Id.

12 Id.

13 Id. at 99.

14 Id.

15 Id.

16 Id. at 182.
17 Id.

18 Id. at 83.

19 Id. at 64-65.

20 Id. at 65.

21 Id. at 79-80.

22 Id. at 80.

23 Id. at pp. 81-82.

24 Legaspi v. People, G.R. Nos. 225753 & 225799, October 15, 2018.

25 Art. 315. Swindling (estafa). — Any person who shall defraud another by any means
mentioned herein below x x x:

1. With unfaithfulness or abuse of confidence, namely:

xxxx

(b) By misappropriating or converting, to the prejudice of another, money, goods or

any other personal property received by the offender in trust, or on commission, or
for administration, or under any other obligation involving the duty to make delivery
of, or to return the same, even though such obligation be totally or partially
guaranteed by a bond; or by denying having received such money, goods, or other
property[.]

26 Coson v. People, 818 Phil. 271, 284 (2017).

27 D'Aigle v. People, 689 Phil. 480, 490 (2012).

28 Legaspi v. People, supra note 24.

29 San Diego v. Court of Appeals, 757 Phil. 599 (2015).

30 99 Phil. 703 (1956).

31 Matrido v. People, 610 Phil. 203, 214 (2009).

32 387 Phil. 15 (2000).

33 486 Phil. 288, 310 (2004).

34 755 Phil. 144 (2015).

35 TSN, April 18, 2007, p. 20.

36 Sec. 4. Judgment in case of variance between allegation and proof. — When there is
variance between the offense charged in the complaint or information and that proved, and
the offense as charged is included in or necessarily includes the offense proved, the
accused shall be convicted of the offense proved which is included in the offense charged, or
of the offense charged which is included in the offense proved.

37 Sec. 5. When an offense includes or is included in another. — An offense charged

necessarily includes the offense proved when some of the essential elements or ingredients
of the former, as alleged in the complaint or information, constitute the latter. And an offense
charged is necessarily included in the offense proved, when the essential ingredients of the
former continue or form part of those constituting the latter.

38 Matrido v. People, supra note 31, at 211-212.

39 699 Phil. 541, 547 (2012).

40 Matrido v. People, supra note 31, at 212.

41 723 Phil. 685 (2013).

42 260 Phil. 519 (1990).

43 G.R. No. 220762, April 18, 2018 (Minute Resolution).

44 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, AMENDING FOR THE PURPOSE ACT NO. 3815. OTHERWISE KNOWN
AS "THE REVISED PENAL CODE," AS AMENDED.

45 Art. 309. Penalties. - Any person guilty of theft shall be punished by:

xxxx

3. The penalty of prision correccional in its minimum and medium periods, if the
value of the property stolen is more than Twenty thousand pesos (P20,000.00) but
does not exceed Six hundred thousand pesos (P600,000.00).

46 Art. 65. Rule in cases in which the penalty is not composed of three periods. - In cases in
which the penalty prescribed by law is not composed of three periods, the courts shall apply
the rules contained in the foregoing articles, dividing into three equal portions of time
included in the penalty prescribed, and forming one period of each of the three portions.

47 Supra note 43.