ERNESTINO P. DUNLAO, SR., petitioner, vs.

THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES, represented by the Office of the Solicitor General, and LOURDES DU, respondents. DECISION ROMERO, J.: Petitioner Ernestino P. Dunlao, Sr. is accused of violating Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law, in an information which reads: I N F O R M A T I O N The undersigned accuses the above-named accused of Violation of Anti-Fencing Law of 1979 (Presidential Decree 1612), committed as follows: That on or about a week prior to October 25, 1986, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, with intent to gain for himself, wilfully, unlawfully and feloniously purchased and received dismantled farrowing crates made of GI pipes, valued at P20,000.00, knowing the same to be the subject of thievery, thereby committing an act of fencing, in violation of the Anti-Fencing Law of 1979, to the damage and prejudice of the owner thereof Lourdes Farms, Inc., represented by Lourdes Du. Contrary to law. Davao City, Philippines, January 19, 1987. (SGD.) ANTONINA B. ESCOVILLA 4th Asst. City Fiscal
[1]

Petitioner is a duly licensed retailer and wholesaler of scrap iron in Davao City using the business name Dunlao Enterprise. On October 25, 1986 at about 2:30 p.m. Fortunato Mariquit and Carlito Catog, both employees of Lourdes Farms, were instructed by its proprietor, Mrs. Lourdes Du, to go to petitioners premises together with police officers Pfc. Epifanio Sesaldo and Pat. Alfr edo Ancajas to verify information received that some farrowing crates and G.I. pipes stolen from Lourdes Farms were to be found thereat. Upon arrival at petitioners compound, the group saw the farrowing crates and pipes inside the compound. They also found assorted lengths of G.I. pipes inside a cabinet in petitioners shop and another pile outside the shop but within the compound. After he was informed by the police operatives that said pipes were owned by Lourdes Farms and had been stolen from it, petitioner voluntarily surrendered the items. These were then taken to the police station. On February 16, 1987, Criminal Case No. 14655 was filed in the Regional Trial Court of Davao city, Branch 9, accusing petitioner of violation of the Anti-Fencing Law. On March 13, 1987, petitioner was arraigned and pleaded NOT GUILTY. Trial ensued and on May 30, 1989, the trial court rendered judgment, the dispositive portion of which reads: PREMISES CONSIDERED and the evidence being sufficient, this Court finds ERNESTINO P. DUNLAO, SR., GUILTY, beyond reasonable doubt of Violation of Anti-Fencing Law of 1979 and hereby sentences him to imprisonment of Six (6) Years, Eight (8) Months, One (1) Day as minimum to Seven (7) Years and Four (4) Months as maximum of Prision Mayor with all the accessory penalties provided by law. SO ORDERED.
[2]

Petitioner then appealed his conviction to the Court of Appeals. On May 10, 1993, the appellate court promulgated its decision affirming the judgment of the trial court. Hence, this petition. Petitioner states that the appellate court erred:

[3]

(A) IN NOT FINDING THAT AT LEAST TWO (2) ELEMENTS OF THE CRIME CHARGED, NAMELY, THE A LLEGED PURCHASE BY THE ACCUSEDAPPELLANT OF THE GI-PIPES AND HIS ALLEGED KNOWLEDGE OF THEIR BEING STOLEN ITEMS, WERE NOT PROVEN BY THE PROSECUTIONS EVIDENCE; (B) IN NOT FINDING THAT ACCUSED-APPELLANT, A DULY LICENSED SCRAP METAL BUSINESSMAN FOR MORE THAN FIFTEEN (15) YEARS, HAD ACTED IN GOOD FAITH ANDWITHOUT ANY CRIMINAL INTENT IN POSSESSING AS TEMPORARY CUSTODIAN OF SAID GI-PIPES BY BRINGING THEM INSIDE HIS BUSINESS ESTABLISHMENT, WHOSE INSIDE PREMISES WERE OPEN TO PUBLIC VIEW, BEFORE DARK SET IN ON THE DAY THEY WERE BROUGHT TO HIM BY WELL-DRESSED JEEP-RIDING MEN WHO MERELY OFFERED SAID ITEMS TO HIM FOR SALE BUT WHO FAILED TO RETURN TO HIS ESTABLISHMENT UNTIL POLICE OPERATIVES WENT TO HIS BUSINESS PREMISES A FEW DAYS [4] THEREAFTER. In brief, petitioner argues that the prosecution failed to establish the fact that, in receiving and possessing the subject items, he was motivated by gain or that he purchased the said articles. Further, he questions the alleged value of the stolen properties stating that they are worth a lot less than what the trial court declared them to be. Under Presidential Decree 1612, fencing is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft. There is no question that the farrowing crates and assorted lengths of G.I. pipes were found in the premises of petitioner. The positive identification by Fortunato Mariquit, an employee of Lourdes Farms, Inc., that these items were previously owned by it gave rise to a presumption of fencing under the law: Sec. 5. Presumption of Fencing. Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing. In the instant case, did petitioner Ernestino Dunlao succeed in rebutting this presumption? We hold in the negative. First of all, contrary to petitioners contention, intent to gain need not be proved in crimes punishable by a special law su ch as P.D. 1612. The law has long divided crimes into acts wrong in themselves called acts mala in se, and acts which would not be wrong but for the fact [6] that positive law forbids them, called acts malaprohibita. This distinction is important with reference to the intent with which a wrongful act is done. The rule on the subject is that in acts mala in se, the intent governs, but in acts malaprohibita, the only inquiry is, has [7] [8] the law been violated? When an act is illegal, the intent of the offender is immaterial. In the case of Lim v. Court of Appeals involving violation of the Anti-Fencing Law, we said: On the aspect of animus furandi, petitioner is of the belief that this element was not clearly established by the Peoples evidence and he, therefore, draws the conclusion that respondent court seriously erred in presuming the existence of intent to gain. Again, this supposition ignores the fact that intent to gain is a mental state, the existence of which is demonstrated by the overt acts of a person (Soriano vs. People, 88 Phil. 368 [1951]; 1 Reyes, Revised Penal Code, Eleventh Rev. Ed., 1977, p. 45; 1 Aquino, Revised Penal Code, 1988 Ed., p. 197). And what was the external demeanor which petitioner showed from which the trial court and respondent court inferred animus furandi? These circumstances were vividly spelled in the body of the judgment which petitioner chose to blandly impugn and over which he remains indifferent even at this crucial stage. Withal, the sinister mental state is presumed from the commission of an unlawful act in bringing out the tires from his bodega which were loaded on his pick-up (People vs. Sia Teb Ban, 54 Phil. 52 [1929]; 1 Reyes, supra at P. 46; Section 3(b), Rule 131, Revised Rules on Evidence). At any rate, dolo is not required in crimes punished by a special stature like the Anti-Fencing Law of 1979 (U.S. vs. Go Chico, 14 Phil. 128 [1909]; 1 Reyes, supra at p. 58) because it is the act alone, irrespective of the motives which constitutes the offense (U.S. vs. Siy Cong Bieng, et al., 30 Phil. 577 [1915]; 1 Reyes, supra, at p. 59; 1 Aquino, supra, at p. 52). Secondly, the law does not require proof of purchase of the stolen articles by petitioner, as mere possession thereof is enough to give rise [10] to a presumption of fencing. It was incumbent upon petitioner to overthrow this presumption by sufficient and convincing evidence but he failed to do so. All petitioner could offer, by way of rebuttal, was a mere denial and his incredible testimony that a person aboard a jeep unloaded the pipes in front of his establishment and left them there.
[9] [5]

A. There was a jeep loaded with G.I. pipes where he approached me with the G.I. pipes but I refused to buy and instead requested me that they will unload those G.I. pipes in front of my establishment. Q. Now, did you have a talk with that person whom you said arrived aboard the jeep which was carrying G.I. pipes? A. We had a talk requesting me that they will just unload the G.I. pipe but we have never talked that I am going to buy those G.I. pipes. Q. Can you recall what did the man tell you as he asked you to allow him to unload those G.I. pipes? A. He told me that he would just leave them temporarily and he will come back but it took a long time, he failed to come back. Q. What time, more less, of the day was that when the unloading of the G.I. pipes was made, was it in the morning or afternoon? A. I can remember it was in the afternoon but I am not certain as to the time. Q. Can you estimate the time in the afternoon? A. May be around 2 or 3 oclock but I am not certain, it was in the afternoon. Q. You said that man who unloaded the G.I. pipes did not return anymore and so, what did you do with the G.I. pipes that were unloaded in front of your establishment? A. That was already late in the afternoon, around 5:30 up to 6:00 oclock, we are about to close, so what I did I have it brought inside my [11] compound for safekeeping. In the Lim
[12]

case, we held that:

x x x the presumption of fencing under Section 5 of Presidential Decree 1612 x x x must be upheld in the light of petitioners shallow demurrer premised on a denial and alibi, since a disputable presumption on this score is sufficient until overcome by contrary evidence. The Court notes that the stolen articles were found displayed on petitioners shelves inside his compound.If petitioner were merely keeping the farrowing crates and G.I. pipes for the men aboard the jeep, why did he display them? When a storeowner displays articles, it is assumed that he is doing so with the intention of selling them. Furthermore, the Court finds it strange that petitioner did not even bother to ascertain the identity of the person or persons who deposited the articles with him. We quote with approval the trial courts observation that: The narration of how the items were simply dumped at the compound of the accused; the fragile and vague statement that the unidentified party unloading the items would bring more items at some indefinite date; x x x that accused caused the pipes to be brought inside the compound of his own volition without any such arrangement with the strangers; that the latter did not return thereafter; that some of the items delivered by the strangers were distributed in and around the compound and in cabinets inside the building already cut in short pieces; that accused cannot produce any proof of ownership by the persons who simply unloaded the items then left without coming back these are matters which common sense and sound business practices would normally clarify in the face of the express provisions of the Anti-fencing Law.x x x And when the accused took it upon himself to protect and transfer inside his compound items unloaded by total strangers without any agreement as to how the items would be sold or disposed of nor how soon agreement would be compensated, a rather dubious aura of illegitimacy envelopes and taints the entire transaction. Lastly, petitioner questions the value of the stolen articles as found by the trial court and as affirmed by the Court of Appeals. He contends that the pipes were worth only P200.00, not theP20,000.00 alleged in the Information. Prosecution witness Carlito Catog testified on the value of the stolen pipes stating that, as he worked as purchaser for Lourdes Farms, he [14] was knowledgeable about their true worth. He also explained the basis of the estimate of the said articles: Q. Now, those G.I. pipes which you said you saw in the premises of Mr. Dumlao and which you earlier mentioned as having been identified by you as coming from Lourdes Farms, can you tell the Honorable Court, more or less, how much did you buy those pipes? A. I arrive at the amount of Fifty Nine Thousand (P59,000.00) as my estimate. Q. Fifty Nine?
[13]

A. Fifty Nine Thousand Pesos (P59,000.00). Q. And can you tell the Honorable Court what is your basis of making this estimate? A. The G.I. pipes were made into piggery crates, we use the 3 / 4 inch by 20 feet G.I. pipes in fabricating. We use 6 lengths of those pipes at the cost of P80.00 per crate. So, we arrive at the amount of P480.00 of the materials, the G.I. pipes used in fabricating crates, plus the cost of fabrication which we paid to the one making at P700.00 per crate, so we arrive at P1,180.00 per crate and the number of crates per estimate, which we recovered from the premises of Mr. Dumlao is about more or less 50 crates. So, we arrive at Fifty Nine Thousand Pesos (P59,000.00). The trial court, however, based its decision on the amount of P20,000.00 as alleged in the information, instead of the appraisal of P59,000.00 made by Mr. Catog. The Court believes thatP20,000.00 is a more realistic estimate of the value of the stolen pipes. Petitioners claim that the pipes were worth only P200.00 is not credible considering that it took a truck to haul off the entire load [15] from petitioners premises, as testified to by Fortunato Mariquit. Q. How did you bring the G.I. pipes from the place of Mr. Dumlao to the police station? A. We loaded them in a dump truck owned by Federico Jaca. Q. Now, what was the quantity of the pipes that you were able to bring from the place of Mr. Dumlao to the police station? A. Almost a truckload. Q. What did you say, it was a dump truck? A. Almost a load of a dump truck. Q. After reaching the police station, what happened? A. We unloaded it in the police station and we went home. In line with our ruling in the Lim case, petitioner should pay Lourdes Farms, Inc. represented by its owner Mrs. Lourdes Du, the sum of P20,000.00 minus the value of the pipes and farrowing crates recovered and in the custody of the police, without subsidiary imprisonment in case of insolvency. WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED.Petitioner is ordered to pay Lourdes Farms, Inc., represented by Mrs. Lourdes Du, the sum of P20,000.00 minus the value of the recovered pipes and farrowing crates, without subsidiary imprisonment in case of insolvency.
[16]

RODOLFO CAOILI, petitioner, vs. THE HONORABLE COURT OF APPEALS and HONORABLE RUSTICO V. PANGANIBAN, Presiding Judge of the Regional Trial Court of Manila, Branch 51, respondents. Petitioner Rodolfo Caoili seeks a reconsideration of the Courts 18 June 1997 resolution dismissing his petition for review on certiorari. The petition assails the resolution, dated 14 January 1997, of the Court of Appeals finding no grave abuse of discretion on the part of the trial court in refusing to exclude petitioner from a pending criminal case and to correspondingly amend the information theretofore filed with it. The instant controversy, as well as the antecedent circumstances leading to the petition, could be said to have started when, in an Information filed on 15 March 1995 with the Regional Trial Court (RTC) of Manila, Branch 51 (Criminal Case No. 95-141750), petitioner, Rodolfo Rudy Caoili, was charged, along with a certain Tony Yip, with violation of Presidential Decree (P.D.) No. 1612. On 24 March 1995, petitioner sought a review by the Secretary of Justice of the resolution, dated 16 February 1995, of Assistant Prosecutor Antonio R. Rebagay that had found a prima facie case against petitioner that served as the basis for the information. In his ruling, dated 18 August 1995, the Secretary of Justice directed the exclusion of petitioner Rodolfo Caoili from the Information. The Secretary opined: The only issue posed in the petition is whether or not there is sufficient evidence to indict Caoili. To be liable for violation of P.D. 1612, Section 2 thereof requires that the offender buys or otherwise acquires and then sells or disposes of any object of value which he knows or should be known to him to have been derived from the proceeds of the crime of robbery or theft. The allegations of Atule and Azuela do
th

not indicate that respondent Caoili acquired the skiving machines in question knowing that the same were stolen property. The prima facie presumption of fencing from possession of stolen property does not apply to Caoili as complainant reacquired the subject skiving machines not from respondent Caoili but from Yip. It is difficult to give credence to the claim of Atule and Azuela that respondent Caoili told them that he purchased the stolen skiving machines which he in turn sold to Yip. It is simply contrary to common human behavior that a person would intimate to another or others an unlawful act, that he purchased stolen items and then dispose of it at a profit. Evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common experience [1] and observation of mankind can approve as probable under the circumstances. In declining to grant the corresponding motion of the prosecutor to exclude petitioner from the information in consonance with the ruling of the Secretary of Justice, the trial court ratiocinated: Considering the records of this case and it appearing that the Information was already filed in Court, the determination of the guilt or innocence of the accused is now with this Court and the prosecution may no longer interfere with the judges disposition of t he case. The accused has to prove his allegations when his turn to present defense evidence comes because this allegations are matters of defense to be proven in Court. It is also noted that the Prosecutor has conducted the necessary preliminary investigation in this case; examined the compla ining witnesses; and there is a reasonable ground to believe that the offense charged has been committed and accused are probably guilty thereof. In fact accused Rodolfo Caoili filed his counter-affidavit before the Investigating Prosecutor during the Preliminary Investigation of [2] this case. Petitioner now insists, following the rebuff by the Court of Appeals, that the determination of a prima facie case of an investigating prosecutor after the examination of declarants and his evaluation of the evidence cannot be considered as attaining finality while still subject to review by the Secretary of Justice who retains the power and authority to either affirm or reverse the findings of subordinate prosecutors. That prerogative, petitioner contends, is all up to the Secretary of Justice to take up so long as the accused has not yet been arraigned. Petitioner concludes that respondent Court of Appeals has erred in affirming the trial court in its questioned order considering [3] that the rule laid down in Crespo vs. Mogul has already been abandoned by the pronouncements in Marcelo vs. Court of [4] [5] Appeals and Roberts, Jr., et al. vs. Court of Appeals, et al. It is too much of an exaggeration to say that Crespo vs. Mogul no longer holds. The Solicitor General correctly points out that Roberts did not overturn or abandon but simply sustained the authority of the Secretary of Justice, recognized under Rule 112, Section 4, of the Rules of Court, to review resolutions of provincial or city prosecutors or the Chief State Prosecutor upon petition by a proper party even while the criminal case is already pending with the courts. It did, understandably, caution the Secretary of Justice from being indiscriminate on this matter; thus, reiteratingMarcelo, the Court has said: Nothing in the said ruling forecloses the power or authority of the Secretary of Justice to review resolutions of his subordinates in criminal cases. The Secretary of Justice is only enjoined to refrain as far as practicable from entertaining a petition for review or appeal from the action of the prosecutor once a complaint or information is filed in court. In any case, the grant of a motion to dismiss, which the [6] prosecution may file after the Secretary of Justice reverses an appealed resolution, is subject to the discretion of the court. Roberts went on to quote with approval the Crespo rule in explaining the doctrine; thus: The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as [to] its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in court he cannot impose his opinion on the trial court. The court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation [7] or upon instructions of the Secretary of Justice who reviewed the records of the investigation. Evidently then, the appellate court viewed and appreciated correctly the now prevailing Crespo-Marcelo-Roberts rule. Needless to say, the holding of this Court, or of the appellate court, in this instance is not to be taken as having any bearing on the ultimate disposition by the trial court of the case on its merits. WHEREFORE, the motion for reconsideration filed by petitioner is DENIED WITH FINALITY.

GABRIEL CAPILI petitioner, vs. COURT OF APPEALS, ET. AL., respondents. This Petition for Review on Certiorari seeks the reversal of the Decision of the Court of Appeals in CA G.R. CR No. 19336 entitled People [2] of the Philippines vs. Gabriel Capili, et. al. affirming the Decision of the Regional Trial Court of the National Capital Judicial Region, Branch 34, finding Gabriel Capili guilty beyond reasonable doubt of violation of Presidential Decree 1612. Gabriel Capili y Recto (GABRIEL) together with his wife Ferma Capili y Inot were charged with violation of Presidential Decree 1612, otherwise known as the Anti-Fencing Law, in an information that reads: That on or about November 5, 1993, in the City of Manila, Philippines, the said accused, conspiring and confederating together and mutually helping each other. With intent to gain for themselves or for another, did then and there willfully and knowingly receive, possess, keep, acquire and sell or dispose of the following, to wit: Assorted pieces of jewelry Several pieces of old coins (U.S. dollar) all valued at P3,000,000.00, which they knew or should have known to have been derived from the proceeds of a (sic) crime of theft. Contrary to law.
[3] [1]

On December 3, 1993, both accused entered a plea of not guilty to the offense charged with the assistance of counsel. ensued. The trial court summarized the testimonies of the witnesses as follows: xxx xxx xxx

[4]

Thereafter, trial

Christine Diokno testified that at 4:00 P.M. on November 4, 1993, when she went home from her office, she discovered that some of her (sic) items at (sic) her closet and the jewelries (sic) and money at (sic) her mothers room were taken. Upon call, two Makati police responded and surveyed the room where the robbery took place. The police officer took her statement (Exhs. F, F-1 and F-2) and then investigated the theft case. Police prepared the police report and concluded that Michael Manzo, her former houseboy, committed the offense so a case against Manzo was filed. She described all the properties that were taken as those reflected in the police report because according to her she gave the police a list of the items and is part of her statement (tsn, p. 11, May 11, 1994). Allegedly the value is about 3 Million pesos, some were of 20 years and some were of 30 years vintage, acquired by her parents since their wedding in 1945. Some from abroad, States or Hongkong acquired during trips. On November 27, 1993, Quiapo sub-station informed her that Michael Manzo was there. She talked to Michael Manzo who admitted the commission of the stealing and that he sold the items to Gabriel Capili and his wife for P50,000.00. Likewise Michael Manzo admitted that on two occasions Gabriel Capili returned some of the items. The first was before he went to Isabela. That Capili returned to him (Manzo) the memorabilia taken from her room consisting of (sic) school ring, bracelets, key chain and some custom jewelries (sic) and some other items. That three days before the apprehension Gabriel returned the Raymond Wiel watch and two cast rings with diamonds. The first ring is valued at P3,000.00 the second watch was (sic) cost P20,000.00 toP60,000.00 and the two cast rings about P80,000.00. Then Manzo informed her that he sold those items returned to other buyers, near Claro M. Recto, who paid P1,500.00 and P1,000.00 for the ring which police officer (sic) failed to recover because the stand was no longer there. She was shown by the police officer the items recovered from Gabriel Capili and his wife which she identified as her property. Shown with Exhs. A, B, C, she said those are her properties and that the coins (sic) were acquired during the trips to the States. She kept John F. Kennedy dollar coins contained in a small box. She further relayed that the coins, Exh. A came from a brooch owned by her mother. The chain with medal of our Lady was bought by her mother and was given to her together with other belongings. That before the discovery of the incident her mother had the list of all the items by counting them physically because her mother used to check the jewelry every week in her presence. That all is worth three (3) Million Pesos because the jewelries (sic) were sometimes brought to a jeweler for a change or for removal of stones or replacement that is why she considered that all the jewelries (sic) were appraised. She does not know, however, what exactly were brought by her mother. That she was present during the last inventory of the items and the land titles by her mother, presenting the alleged inventory on August 1, 1993 (Exh. S), after her father died on July 15, 1 993. While her mother was checking them, she was in the room writing the description of the jewelries (sic), the cost and date when bought. That the corresponding value stated came from her mother kept inside the vault.

That on November 2, 1993, she took out all the items because November 9 was her mothers birthday and would like to select the items she and her mother were going to wear for the occasion then check the jewelries (sic) against the prepared list. The list included the items lost but did not include the box of memorabilia which was taken from her room. She claimed that the records including the receipts from where the list was taken were lost together with the jewelries (sic) that were taken. xxx xxx xxx

To support the allegation in the Information Michael Manzo testified that after he asked his friend Emilio Benitez where he can sell his jewelries (sic) he was brought to Boy Rectos (accused) house at 1260 Carola St., Sampaloc, Manila, to whom he gave one bag o f jewelries (sic) with the information that he stole them while he was a house boy. Recto agreed to pay him P50,000.00 (p. 3, tsn, March 3, 1994). He left and went back after a week or on November 5, as he needed the money. He was paid P1,500.00. He left again and went back after two weeks and was paid again P6,000.00. He left again but in his return he was not paid anymore. When he visited his friend Emilio Benitez at the precinct, having been charged with vagrancy, he was caught by the police asking him where he brought the jewelries (sic), so he pointed to Boy Recto, who was picked-up and brought to the station and investigated. During the frisking and searching at the station, police officers found pearls and old coins from Gabriel Capili. The following day, Mrs. Ferma Capili was investigated at sub-station 3, Quiapo, WPD. He identified the pearl earring with copper (sic) with diamond (Exh. A). He likewise identified the old coin 4 pieces of dollars marked as Exhs. B-1, B-2, B-3 and B-4; B-1, B-2 dimes, B-3 and B-4 quarter cents; pendant with inscription Boy Recto, Exh. C. He admitted that the statement marked as Exh. D and sub-markings is his. Describing the contents of the bag, he said that there were more or less 20 pieces of rings, some with pearls and some with diamonds and birthstones; more or less 20 pairs of earrings, diamond with pearls; more or less 10 pieces of necklaces of plain gold with pendant with the replica of God and cast with diamond. There were Quartz watches; 3 pieces Bulova watches; 5 pieces of Seiko watches, Raymond Wiel. That per complainants information, all of them costs (sic) 3 Million Pesos which he merely gave to the accused without counting them. He however, claims that they will cost only one to two million pesos. Despite which value, he entrusted them to Boy Recto without counting the pieces. Defense adopted Exhibit B as Exhibit 1 and sub-markings, Exhibit D as their Exhibit 2 and 2-a. That during the investigation, when he was given another lawyer, he stated that he told the accused to sell the jewelries (sic) he stole. (p. 6, tsn, March 16, 1994) That witness explained that only the fancy ones were returned to him. That three days after he left the jewelries (sic) to (sic) Recto, they had drinking session somewhere at Recto, on which occasion, he did not ask for the jewelries (sic). That the P1,500.00 was given to him near the bus terminal at Sampaloc near UST and when the fancies (sic) were returned, which he came to know as such because he had it appraised in a pawnshop when they arrived from Roxas, Isabela. When the jewelries (sic) were returned contained in the bag, he accepted, opened (sic) for a couple of minutes without counting. That Emilio Benitez glanced on (sic) them because the bus was about leave. Recto gave the instruction that he can come back within two weeks because Boy Recto will pay. The witness admitted that he is facing a charge of Qualified Theft in Makati pending before a court where he posted his bail. That he is testifying before this Court out of his own volition. He explained that they went to Isabela per instruction of Gabriel Capili that they should lie low because the police were hunting for them and that Emilio Benitez is from Roxas, Isabela. After more or less two weeks when (sic) they arrived from Isabela, he was requested by Boy Recto (Gabriel Capili) to sign a blank document somewhere at Espana (Document Exh. 3 to 3-A). He was not, however, forced. That upon arrival from Isabela, they went to the house of the accused then proceeded to wait at a hotel in Sta. Cruz. After three hours of waiting, the accused arrived and gave him P6,000.00 in the presence of Emilio Benitez without receipt. He declared that he himself is not sure whether all the jewelries (sic) inside the bag are (sic) genuine or not. Having admitted to the police that he is Michael Manzo, he was asked where he brought the jewelries (sic) so he pointed to Boy Recto. He admitted to have signed a blank document, Exhibit 4 and 3, his signature, Exh. 4-1 and Exh.3-A, but do (sic) not know where the originals were, but later said that the originals are in the hands of the police officers.

SPO3 Ernesto Ramirez testified that as police officer of Station 3, on November 27, 1993 he investigated Michael Manzo who was accused of Qualified Theft at Makati and who admitted to him having committed said offense and pointed to the house of Gabriel Capili at Sampaloc, Manila where he sold the jewelries (sic). Thereafter, he and his companions SPO2 Reyes, SPO3 Salalia and SPO3 Fuentes with Michael Manzo went to the place and saw the wife of Gabriel Capili wearing the pair of earrings, one of the jewelries (sic) stolen. They were allowed by Gabriel Capili to get (sic) inside the residence where Gabriel Capili showed him the signed document of Michael Manzo, Exh. 4 and said he returned the jewelries (sic). It was however, denied by Manzo although he admitted the signature. Gabriel Capili went with them to the police precinct where he (Gabriel Capili) was referred to the investigator and found (sic) from his pockets 4 pieces of coins. Allegedly while the wife was then being investigated, Manzo pointed to the earrings worn by the (sic) wife as part of those stolen properties. The same was taken by the investigator. He pointed to both accused inside the courtroom. SPO1 Eduardo San Diego also from Station 3, Quiapo, Manila, investigator, investigated the case of Qualified Theft that happened at the house of Cristine Diokno. Both accused were positively identified by Michael Manzo so he took the latters statement. That during his investigation he recovered a necklace with pendant, US dollar coins with different denominations and one pair of earrings (Exh. A, B and C). In their investigation they tried to recover the other items but failed because the establishment of the other buyer pointed to them by Michael Manzo was no longer existing. He prepared the booking sheet and arrest report Exhs. D and E and sub-markings. xxx xxx xxx

Gabriel Capili denied any knowledge about the charge against him and declared that what Michael Manzo stated in court that he agreed to pay P50,000.00 but paid only P1,800.00 is not true. He was at home on November 10, 1993 selling junk foods (sic) when he was called by Emil, companion of Michael Manzo, through the phone which number he gave to Emil when the latter bought something on credit from him a week before that date. Emil asked him if he would like to buy jewelry to whom he relayed if he will see the jewelry. Emil arrived at 2:00 oclock P.M. together with Michael Manzo, the first time he saw the latter and showed him two (2) pieces of jewelry, one birthstone and an old coin with a price of P2,000.00. He inquired from (sic) where the jewelries (sic) came from and was answered by Michael Manzo that it came from and (sic) being sold by his mother. He declined because he cannot pay for it. Michael Manzo handed to Emil something wrapped of which he was asked to appraise. Michael Manzo asked him if he knew somebody who can buy. He said he has but hard to see because he seldom see the man already but was invited to see the person at Recto. After boarding the taxi they did not proceed immediately to the place. Michael Manzo ordered the taxi cab to go back to Sta. Mesa Love Hotel where he was told to wait. Michael Manzo went up the hotel while Emil went towards Aurora Boulevard walking carrying some items but did not know what happened. After one hour of waiting at the taxicab and worried about the taxi fare, he went inside the hotel and after inquiring from the counter where his companion was, Michael Manzo went down with two women companions. Fifteen minutes after the two women left, Emil arrived and said he went to Cubao selling the jewelries (sic). Thereafter, they went to Recto at (sic) a business establishment near the Galaxy Theater. He was offered to drink from almost dark until dawn asking him if he had already find (sic) his friend buyer. They parted ways and went home. On November 15, Manzo and Emil called him up again asking if it was possible to see him which he positively answered. He went to UST somewhere near Mambusco station where he saw Emil with Michael Manzo about 5 meters from Emil standing talking to someone. He asked Emil if he was able to sell the jewelries (sic) and was answered not yet. Emil was borrowing P700.00 but he has no such amount, so Emil gave him the jewelries (sic) formerly offered to him, the birthstone and watch allegedly as a gift from Michael Manzo. Emil informed him that he and Michael Manzo together with two others were going to Isabela so he gave the P700.00. After they (Emil and his friend) boarded the bus he went home. On November 21, he was fetched by Emil, brought to a place near the UST along Dapitan Street where he found Michael Manzo retrieving the gift given to him. Because of Manzos insistence, he returned them but asked Manzo to sign Exh. 3. They failed to return his P700.00 so he asked Manzo to sign another documents (sic), Exhs. 4 and 4-A, the original of which was given to the policeman and which was not returned to him. After several days Pat. Ramirez arrived informing him that Michael Manzo sold him jewelries (sic). Invited (sic) he went to the police at the Hidalgo sub-station 3. Michael Manzo was not immediately investigated but Michael Manzo and Emil were incarcerated. After fifteen (15) minutes from the second floor he was brought to the ground floor inside the cell and detained for several days. He alleged that on the same day he was brought in a room at the second floor where he was mauled by Pat. Ramirez (sic) not convinced with what he said about the paper (Exh. 4), he gave them then brought back to the cell. He told the police that the jewelries (sic) they are looking for are in the possession of Michael Manzo. He further claimed that Michael Manzo talked to a certain Go and pointed to some other buyers who were brought to the precinct. He, however, did not know if they were released. On November 27 when his wife visited him at 7:00 P.M. she was likewise incarcerated because Michael Manzo pointed to the earrings of his wife.

He further declared that prior to his wifes arrival, policeman and Michael planned that when his wife arrived, Michael will point to her earrings, allegedly because Emil gave P500.00 to the police officer while planning to include his wife. His wife was then brought to the second floor but did not know what happened, thereafter was incarcerated. He testified that the earrings of his wife was given by her brother and that the old coin, Exh. B is his acquired when he h elped, per order of Pat. Nick Golahan, in carrying dead body (sic) when MV Nucnucan sank in Cebu where the son of one he carried gave him coin. The other coin belongs to him which he picked up in Cebu. That the necklace with print Boy Recto on the pendant belongs to him and which was taken at the precinct from the dancer to whom he gave it. Further stating that the same came from Pat. Alex Aguirre when he was still single. That upon inquest, the Fiscal told the police that they should be released but were not and (sic) brought back to the cell. The following morning they were brought to the City Hall. There again, the Fiscal ordered that they be released but were not and (sic) brought back to the cell once more. On the third time when he was brought to the Fiscal, the latter allegedly told him that San Diego altered the testimony that is why they will be incarcerated. He denied that Manzo signed Exh. 3 without any writing and pointed to the typewritten statement therein as his relaying tha t the same was thru Michaels suggestion at the time when they were already quarreling while accusing Manzo to have stolen the properties subject matter of this case and even questioned that there is something wrongly written, the giving as a gift. That although they did not know the accused Michael Manzo and did not know of any reason why he pointed to him and his wife as buyers of the jewelries (sic) worth 3 Million Pesos, he believed that it was because of the quarrel when he started accusing Manzo of stealing of which he was being blamed. He now claims that the he came to know Emilio Benitez only on November 5, the same time he came to know Michael. (tsn, p. 22, Aug. 8, 1994), hence, there is no reason why Benitez will approach him selling the property. There is no quarrel with the police officers and so he has no knowledge why these people would like to implicate him and his wife. He likewise did not know of any reason why the police officer stated in their affidavit of arrest that the items US Dollars were recovered from him at the time of the investigation. He admitted that only one of the coins belongs to him, picked-up from Cebu (Exh. B-4) and his two (2) LRT coins are still missing so with P20.00 and two more Abraham Lincoln coins. Although he claimed that San Diego did not release them after the Fiscals order he did not file any action against San Diego. That on December 1, 1993, the Prosecutor ordered the police to release them and was present asking the Fiscal if he can be allowed to go home but since they did not have any document, the Fiscal said the policemen will take care of them. They did not execute any statement because according to him he was not given any chance. SPO1 Beinvenido Inot testified that he is a member of the National Police Force of Precinct 1, Olongapo City and that the accused Ferma Capili, wife of Gabriel, is his sister. He was asked by his sister to testify about the pair of earring (sic) that he gave Ferma on June 24, 1990, a U. S. Fancy jewel which was given by her sister from abroad. It has brillantitos which is the same as a base of the glass. The same was confiscated from Ferma by the police. The last time he saw the pair of earring was on the date his sister celebrated her birthday. Showing all the exhibits of the prosecution to the witness, at first he answered There are no brillantitos pair of earrings, sir.. And later witness answered: Ay ito pala. (holding the pair of earrings marked as Exh. A-1, tsn p. 5, Oct. 14, 1994). He later claimed that the pair of earrings is actually for his wife sent by her sister abroad to Olongapo. He cannot remember having seen Ferma Capili on December 1993 to September 9, 1994, they saw each other two times and that they talked about those jewelries (sic) thru the phone at that time when the accused was apprehended and incarcerated. However, despite the information of Ferma Capili that she was apprehended because of the pair of earrings he did not do anything because allegedly he was too busy and they have operation. He admitted that this is the first time he declared that the earrings came from him without executing any written statement. (Defense marked Exh. A-1 pair of earring (sic) as their Exh. 8) (Decision, pp. 1[5] 15; Rollo, pp. 31-45). On August 17, 1995, the trial court rendered its decision acquitting Ferma Capili but finding the accused, Gabriel Capili, guilty beyond reasonable doubt of the crime charged the dispositive portion of the decision reads: WHEREFORE, finding the prosecutions evidence to be sufficient to support a conviction beyond moral certainty, for violation of P.D. 1612 in relation to Sec. 3 par. A of the same law which required that the penalty to be imposed shall be in the maximum period if the value of the property is more than P22,000.00, adding one (1) year for its additional P10,000.00, the total penalty of which shall not exceed twenty (20) years, further considering that the consideration of the purchase is P50,000.00, accused Gabriel Capili is hereby found guilty beyond reasonable doubt for violation of said law. Without any mitigating or aggravating circumstances attendant to its commission, but granting the accused with the benefit of the indeterminate sentence law, he is hereby sentenced to suffer eight (8) years and one (1) day to ten (10)

years of prision mayor medium and to suffer the additional penalty of three years (one for every P10,000.00) and to further suffer the accessory penalty thereof. The accused shall be credited with the full extent of his preventive imprisonment in accordance with Art. 29 of the Revised Penal Code. Since the claim of P3 Million has not been sufficiently proven but the agreed price between the seller and herein accused is only P50,000.00, the accused is hereby directed to indemnify the complainant Christined Diokno the sum of P50,000.00, less the value of the jewelries (sic) presented in Court, Exhibits A. B and C and its sub-markings, to be returned to the owner upon proper receipt and photograph. The bond posted by the accused for his provisional liberty is hereby cancelled. The body of the accused is hereby committed to the Director of the Bureau of Corrections, National Penitentiary, Muntinlupa, Metro Manila, through the City Warden of Manila. Considering that there is no evidence to show complicity and/or that Ferma Capili conspired and confederated with her husband Gabriel Capili, she is hereby acquitted from the offense charged in the Information. The bond posted by the accused for her provisional liberty is hereby cancelled. SO ORDERED.
[6]

GABRIEL appealed to the Court of Appeals which affirmed the decision of the RTC the dispositive portion of its decision reads: WHEREFORE, the decision of the trial court dated August 17, 1995 convicting the appellant for violation of P.D. 1612 is here by AFFIRMED in toto. SO ORDERED.
[7]

Motion for reconsideration was denied , hence this appeal where the accused assigns the following error: THE COURT OF APPEALS IN AFFIRMING THE DECISION OF THE TRIAL COURT ERRED IN NOT REMANDING THE CASE TO THE COURT A QUO FOR FURTHER PROCEEDINGS DESPITE OF (SIC) THE FAVORABLE RECOMMENDATION OF THE OFFICE OF THE SOLICITOR GENERAL [9] CONSIDERING THAT THE ACTUAL VALUE OF THE FENCED ARTICLES WERE NOT CORRECTLY ESTABLISHED BY THE PROSECUTION. The petitioner maintains that even for the sake of argument that the prosecution has established that the petitioner committed the crime of fencing (violation of P.D. 1612) beyond reasonable doubt, there is no legal basis for him to suffer the entire penalty imposed by the trial court. Petitioner claims that the Office of the Solicitor General, in its appellees brief filed with the Court of Appeals, agrees that basis of the penalty for the offense of fencing is the value of the property actually involved and not the agreed selling price of the stolen item. The petitioner also maintains that since the prosecution failed to prove the value of the stolen goods, the guilt of the petitioner has not been proved beyond reasonable doubt. The petitioner therefore prays that the decision of the Court of Appeals be reversed and a new one be [10] issued either acquitting the petitioner or remanding the case to the court a quo for further proceedings. The respondent through the Office of the Solicitor General (OSG) counters that on April 25, 1997, it filed a Manifestation/Clarification modifying the recommendation it made in its appellees brief to the effect that a remand of the case would unduly delay the d isposition of the case. Therefore, to expedite the final resolution of the case, the OSG recommended that as an alternative to a remand that the [11] assessment and findings of the trial court on the value of the subject articles, which is P50,000.00 be adopted and used instead. It is therefore the contention of the OSG that there is no merit in the petitioners claim that the OSG agreed to the remand of the case for further reception of evidence to determine the value of the stolen goods inasmuch as this would be prejudicial to the rights of the petitioner. The OSG also opines that the petitioner is not entitled to an acquittal since the value of the stolen property is not determinative of the guilt of the accused and is not an element of the crime but is only determinative of the penalty therefor. The petition is partly meritorious. Fencing is the act of any person who, with intent to gain for himself or for another, shall buy receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be [12] known to him, to have been derived from the proceeds of the crime of robbery or theft. The essential elements of the crime of fencing are:

[8]

1. A crime of robbery or theft has been committed; 2. The accused, who is not a principal or an accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime; 3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and 4. There is on the part of the accused, intent to gain for himself or for another. All these elements are present in the case at bench. The first element or the fact of theft was proved by prosecution witness, Christine Diokno (DIOKNO) who testified that several pieces of jewelry, watches and money were stolen from her mothers bedroom. She reported the theft to the police who after conducting an investigation, concluded that her houseboy, Michael Manzo (MANZO), committed the offense. Consequently, a criminal case was filed against MANZO. In her testimony, DIOKNO stated that the major items that were taken consisted of two diamond rings each having a diamond solitaire of three (3) carats each, a pair of diamond earrings each having a diamond solitaire of two point five (2.5) carats, a diamond cross with twelve (12) half (1/2) carat diamond, her mothers wedding band, an emerald set consisting of an emerald r ing set with diamonds with a pair of matching earrings, a sapphire set consisting of two sapphire rings set with diamonds and matching earrings, a South Sea pearl set consisting of a ring and two pairs of matching earrings also set with diamonds, three cultured pearl necklaces with matching cultured pearl earrings set with diamonds, a topaz set consisting of two rings with diamonds and one with rubies with a set of matching earrings, a cameo set consisting of a ring, matching earrings and a brooch all set with diamonds and four solid gold watches, a Rolex, Piaget, Universal Geneve and a Gabriel Peregaux. She alleged that the total value of the items amounted to approximately three million (P3,000,000.00) pesos. In court, DIOKNO identified some of the recovered stolen items consisting of a set of pearl earrings with two [14] small diamonds (Exhibit A), a gold chain with pendant (Exhibit B) and old United States dollar coins (Exhibit C). DIOKNOs testimony is corroborated by MANZO, who admitted that he stole the jewelry from DIOKNO. And that after stealing the jewelry, he delivered them to the petitioner, GABRIEL with the information that the jewelry was stolen and for the purpose of selling the same. He [15] identified GABRIEL in court as the person to whom he delivered the stolen jewelry. MANZO testified that GABRIEL was not a participant in the theft of the jewelry and that he told GABRIEL that the jewelry was stolen. He also established the fact that the petitioner agreed to pay fifty thousand (P50,000.00) pesos for the stolen jewelry which clearly manifests intent to gain on the part of the petitioner. Consequently, MANZOs testimony proves the second, third and fourth elements of the crime of fencing. At any rate, the law does not require proof of purchase of the stolen articles by the accused as mere possession thereof is enough to give [16] rise to a presumption of fencing. GABRIEL, who was in possession of at least two of the stolen items, has not rebutted this presumption. We also disagree with the petitioner that the prosecution failed to prove the value of the stolen items. Although DIOKNOs testimony is hearsay and is inadmissible for purposes of determining the value of the stolen items inasmuch as her testimony was not based on her own personal knowledge but on the appraisals made by jewelers a nd what her mother told her, MANZOs testimony remains unrebutted. MANZO established that he sold the stolen items to GABRIEL forP50,000.00 and in the absence of any evidence to the contrary, said amount is presumed to be the value thereof as it is the only value established by the prosecution. Besides, the valuation of the stolen items made by the trial court is a factual issue and factual findings of the trial court especially when affirmed by [17] the Court of Appeals are entitled to great weight and generally should not be disturbed on appeal. We note however that the trial court was mistaken in imposing the penalty. A person found guilty of fencing property the value of which exceeds P22,000.00 is punished under Presidential Decree 1612 as follows: Sec. 3. Penalties Any person guilty of fencing shall be punished as hereunder indicated: a) The penalty of prision mayor, if the value of the property involved is more than 12,000 pesos but not exceeding 22,000 pesos; if the value of such property exceeds the latter sum, the penalty provided for in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos, but the total penalty which may be imposed shall not exceed twenty years. In such cases, the penalty shall be termed reclusion temporal and the accessory penalty pertaining thereto provided in the Revised Penal Code shall also be imposed.
[13]

Under the Indeterminate Sentence Law , the court shall sentence an accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed and the minimum of which shall be within the range of the penalty next lower to that prescribed for the offense; and if the offense is punished by any other law, the court shall sentence an accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall [19] not be less than the minimum term prescribed by the same. Applying the foregoing, the petitioner should be sentenced to suffer the penalty of prision mayor maximum. The fact that the value of the fenced items exceeds P22,000.00 should not, like in cases of estafa, be considered in the initial determination of the indeterminate [20] penalty. In the absence of mitigating and aggravating circumstances, this should be imposed in its medium period which ranges from ten (10) years, eight (8) months and one (1) day to eleven (11) years and four (4) months. Adding the additional two (2) year sentence, one for each P10,000.00 in excess of P22,000.00, the maximum of the indeterminate penalty is anywhere within ten (10) years, eight (8) months [21] and one (1) day of prision mayor to thirteen (13) years and four (4) months ofreclusion temporal . On the other hand, the minimum of the [22] indeterminate sentence should be anywhere within the range of the penalty next lower which is prision correcional maximum which ranges from four (4) years, two (2) months and one (1) day to six (6) years. WHEREFORE, the petition is hereby DENIED and the decision of the Court of Appeals finding the petitioner, Gabriel Capili guilty beyond reasonable doubt of violating Presidential Decree 1612 otherwise known as the Anti-fencing law is AFFIRMED with the MODIFICATION that the petitioner is hereby sentenced to suffer an indeterminate penalty of four (4) years, two (2) months and one (1) day of prision correcional as minimum to thirteen (13) years and four (4) months of reclusion temporal as maximum.

[18]