Tuesday, February 25, 2014

Determination of Probable Cause for Filing of Information; Determination of Probable Cause for Issuance of Warrant of Arrest

BRIG. GEN. (Ret.) JOSE S. RAMISCAL, JR., vs. SANDIGANBAYAN (4th Division)  and PEOPLE OF THE PHILIPPINES, G.R. Nos. 169727-28, August 18, 2006

Read the case here.

Is the determination or finding of probable cause by the Ombudsman subject to review by the Sandiganbayan, or in the same breath, the finding of probable cause by a prosecutor (DOJ) subject to review by the trial court?
In issuing a warrant of arrest, does Sandiganbayan or a court need to conduct hearing for the purpose of determining the existence of probable cause to satisfy the constitutional requirement?
These questions, and others, are answered in this case.
Here, petitioner, accused of, in the informations filed against him, several counts of Estafa and equal counts of violation of section 3 (e) of the Anti- Graft  and Corrupt Practices Act or RA 3019, filed a Special Civil Action Petition for Certiorari under Rule 65 before the Supreme for alleged grave abuse of discretion amounting to lack or excess of jurisdiction against the Ombudsman and Sandiganbayan.

"The Ombudsman is empowered to determine, in the exercise of his discretion, whether probable cause exists, and to charge the person believed to have committed the crime as defined by law. Whether or not the Ombudsman has correctly discharged his function, i.e., whether or not he has made a correct assessment of the evidence of probable cause in a case, is a matter that the trial court may not be compelled to pass upon."

"We agree with the Sandiganbayan’s ruling that the Revised Rules of Criminal Procedure do not require cases to be set for hearing to determine probable cause for the issuance of a warrant for the arrest of the accused before any warrant may be issued."
Below is the Court's decision.
xxx


On October 7, 2005, petitioner filed the instant petition for certiorari under Rule 65, praying that the said Resolution be nullified on the following grounds:
I. THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN SUSTAINING THE OMBUDSMAN’S FINDING OF PROBABLE CAUSE FOR THE COMMISSION OF ONE HUNDRED FORTY EIGHT (148) COUNTS OF ESTAFA THRU FALSIFICATION OF PUBLIC DOCUMENT AND ANOTHER ONE HUNDRED FORTY EIGHT (148) COUNTS OF VIOLATION OF REPUBLIC ACT NO. 3019 AND IN NOT DISMISSING THE INFORMATIONS.
 II. THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN NOT QUASHING THE INFORMATIONS AND IN NOT DISMISSING THE CASES NOTWITHSTANDING THAT IT HAD NO JURISDICTION OVER THE OFFENSE CHARGED IN THE INFORMATION.
 III. THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN NOT QUASHING THE INFORMATION IN CRIMINAL CASE NO. 28023 (ESTAFA THROUGH FALSIFICATION), NOTWITHSTANDING THAT THE FACTS CHARGED THEREIN WERE AN ESSENTIAL PART OF ONE CONTINUING CRIME OF ESTAFA SEPARATELY CHARGED IN CRIMINAL CASES NOS. 28021, 28025, 28027 AND 28029, PENDING IN THE THIRD, FIRST, FIFTH AND SECOND DIVISIONS OF THE SANDIGANBAYAN, RESPECTIVELY, CONSIDERING THAT BASED ON THE DOCUMENTS ADDUCED BY THE PEOPLE AND FOR OBVIOUS WANT OF RELIABLE EVIDENCE, ONLY ONE INFORMATION FOR ESTAFA SHOULD HAVE BEEN FILED FOR ALL THESE CASES INCLUDING THE REMAINING ONE HUNDRED FORTY THREE (143) COUNTS COVERED BY THE OSP MEMORANDUM DATED JUNE 15, 2004, ANNEX T;
 
IV. THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN NOT QUASHING THE INFORMATION IN CRIMINAL CASE NO. 20822 (VIOLATION OF RA NO. 3019) NOTWITHSTANDING THAT THE SAID CASE WAS ABATED BY CRIMINAL CASE NO. 20823 (ESTAFA THROUGH FALSIFICATION) BECAUSE THE VERY FACTS ALLEGED IN THE FORMER WERE ALSO THE VERY FACTS ALLEGED IN THE LATTER, THUS VIOLATING THE RULE ON DOUBLE JEOPARDY.[30]
Petitioner insists that, in finding probable cause against him for estafa through falsification of public document and violation of Section 3(e) of R.A. 3019, the Sandiganbayan committed grave abuse of discretion amounting to lack of jurisdiction, as it relied solely on the Memorandum of the investigation panel of Ombudsman Prosecutors. He posits that it behooved the anti-graft court to review the Ombudsman’s findings and scrutinize the evidence, the affidavits on record, including the transcript of stenographic notes. As gleaned from the Joint Resolution dated March 30, 2001, the initial finding of the Ombudsman Prosecutors was that there was no probable cause to charge him for the acts complained of, in the light of the Court’s ruling in the Arias case. He asserts that there was no evidence of bad faith on his part relative to the deeds of sale subject of the Informations filed against him. He insists that based on the Joint Resolution, and even the report of the Senate Blue Ribbon Committee, he had no part whatsoever in the commission of the crimes charged. The disparity of the prices of the properties in the bilateral deeds of sale, vis-à-vis the unilateral deeds of sale, do not support the finding of probable cause against him made by the investigating panel of Ombudsman Prosecutors. Petitioner asserts that there is no evidence on record that he conspired with the other accused in the commission of the crimes charged.
Petitioner further posits that the Sandiganbayan likewise committed grave abuse of its discretion when it found probable cause for the issuance of a warrant of arrest against him instead of setting the case for hearing. He insists that the anti-graft court failed to consider the other evidence on record and erred in relying solely on the evaluation and resolution of the investigating panel of Prosecutors; the fact that he posted bail bonds for his provisional liberty does not estop him from raising the issue in his Motion to Quash.
Petitioner avers that the Sandiganbayan has no jurisdiction over the crimes charged as provided in Section 4 of R.A. 8249. He insists that the AFP-RSBS is not a government-owned or controlled corporation and that he does not fall under Salary Grade 27 as required in Section 4 of the law, inasmuch as his position as AFP-RSBS President is not even included under the Compensation and Classification Act of 1989. Petitioner cites the ruling of this Court in Inding v. Sandiganbayan[31] to support his claim.
Petitioner asserts that the charges filed against him constitute only one crime of estafa through falsification of public document, in the nature of delito continuado, or a series of repetition of the same acts arising from one and the same criminal intent. He maintains that while there are 148 bilateral deeds of sale signed by him and 145 unilateral deeds of sale signed by the sellers, it cannot thereby be concluded that he is criminally liable for each deed executed. The number of transactions purportedly entered into is not a gauge in ascertaining criminal intent for the several transactions. The best test should be the presence of clear, convincing and positive evidence showing distinct criminal intent for each sales transaction, which in any event, is wanting in this case. Petitioner further alleges that for multiple transactions to be considered as separate and distinct crimes, there must be a series of acts with individual sellers such as (a) negotiations; (b) discussion of the terms of the sale; (c) finalizing the terms thereof; and (d) instruction to prepare payment and (e) actual payment. He points out that there is no
evidence that he and the other accused involved ever met with any of the sellers. While he admits the possibility that he could have signed the bilateral deeds of sale in one sitting, he insists that these documents were

notarized separately; there is even no evidence on record that the sellers of the property transacted separately with him. He points out that the corporate officers of AFP-RSBS, especially its President, do not personally deal with any of the sellers. The bare fact that he executed the bilateral deeds of sale and that the project was approved by the higher level of the management, cannot lead to the conclusion that he took part in the implementation of the transactions.
Petitioner maintains that the Sandiganbayan committed grave abuse of discretion amounting to lack of or excess of jurisdiction in filing the charges against him. He insists that the delictual acts contained in the two Informations, Criminal Case No. 28022 (for violation of R.A. 3019) and Criminal Case No. 28023 (for estafa through falsification of public document), are one and the same; to charge him under Section 3(e) of R.A. 3019 despite his indictment for estafa is to duplicate the very same charge under another name, which under the principle of double jeopardy, is proscribed. He further argues that while it is true that, in Section 3(e) of R.A. 3019, the charge against him for said crime is “in addition” to his criminal liability under the Revised Penal Code, the phrase connotes cumulativeness and simultaneity of liability.
Petitioner points out that the panel of Ombudsman Prosecutors recommended the filing of only one count of violation of Section 3(e) of R.A. No. 3019, but the Ombudsman filed five (5) counts thereof.
The issues are the following: (1) whether the Ombudsman committed grave abuse of discretion amounting to excess or lack of jurisdiction in finding probable cause against petitioner for estafa through falsification of public document and for violation of Section 3(e) of R.A. No. 3019; (2) whether the Sandiganbayan committed grave abuse of discretion amounting to excess of jurisdiction in finding probable cause against petitioner for the issuance of warrants for petitioner’s arrest without first conducting a hearing; (3) whether petitioner may be charged and prosecuted for five (5) counts of estafa thru falsification of public documents; and (4) whether petitioner may be prosecuted for both estafa through falsification of a public document and violation of Section 3(e) of R.A. No. 3019 without violating his right against double jeopardy.
The petition has no merit.
On the first issue, the rule is that as far as crimes cognizable by the Sandiganbayan are concerned, the determination of probable cause during the preliminary investigation, or reinvestigation for that matter, is a function that belongs to the Office of the Ombudsman. The Ombudsman is empowered to determine, in the exercise of his discretion, whether probable cause exists, and to charge the person believed to have committed the crime as defined by law. Whether or not the Ombudsman has correctly discharged his function, i.e., whether or not he has made a correct assessment of the evidence of probable cause in a case, is a matter that the trial court may not be compelled to pass upon.
As a rule, courts should not interfere with the Ombudsman’s investigatory power, exercised through the Ombudsman Prosecutors, and the authority to determine the presence or absence of probable cause,[32] except when the finding is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction. In such case, the aggrieved party may file a petition for certiorari under Rule 65 of the Rules of Court.[33] Indeed, if the Ombudsman does not take essential facts into consideration in the determination of probable cause, there is abuse of discretion.[34] As we ruled in Mendoza-Arce v. Office of the Ombudsman (Visayas),[35] a writ of certiorari may issue in any of the following instances:
1. When necessary to afford adequate protection to the constitutional rights of the accused;
2. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions;
3. When there is a prejudicial question which is sub judice;
4. When the acts of the officer are without or in excess of authority;
5. Where the prosecution is under an invalid law, ordinance or regulation;
6. When double jeopardy is clearly apparent;
7. Where the court has no jurisdiction over the offense;
8. Where it is a case of persecution rather than prosecution;
9. Where the charges are manifestly false and motivated by the lust for vengeance;
10. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied.[36]
In this case, however, petitioner failed to establish that the Ombudsman committed grave abuse of discretion amounting to excess or lack of jurisdiction in finding probable cause to charge him with violation of Section 3(e) of R.A. No. 3019 and for estafa through falsification of a public document.
We are not convinced by petitioner’s claim that there is no probable cause on record for the filing of the Information against him. It bears stressing that probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely not on evidence establishing absolute certainty of guilt. It implies probability of guilt and requires more than bare suspicion but less than evidence which would justify conviction.[37] The Ombudsman’s finding of probable cause against petitioner is buttressed by his encompassing and comprehensive resolution, independent of the findings of the Senate Committees, as well as the documents appended to the Informations. Petitioner’s bare claim to the contrary cannot prevail over such positive findings of the Ombudsman. In fine, the Ombudsman’s finding of

probable cause prevails over petitioner’s bare allegations of grave abuse of discretion; that he was not involved in the step-by-step consummation of the anomalous transaction; and that as President he was involved only in the top level policy formulation and implementation.
It is true that in the Joint Resolution dated March 30, 2001, the Panel of Ombudsman Prosecutors found no sufficient evidence that petitioner acted in bad faith and that he merely relied on the recommendations of his subordinates. However, after a thorough investigation, another panel of Ombudsman Prosecutors found that, indeed, petitioner not merely relied on the recommendations of his subordinates but likewise perpetrated overt acts, which, along with those of the other accused, resulted in the consummation of the crimes charged. Thus, as maintained by the respondents in their Comment on the petition, petitioner signed documents, indicating his evident bad faith on the highly anomalous transactions; petitioner was aware of the forgeries and anomalies in the buying of the parcels of land, yet gave his conformity thereto, causing grave injury to its members and to the public in general. Thus, it was also found that petitioner, together with his cohorts, conspired to perpetuate clear fraud on the government and the AFP-RSBS members by giving a semblance of regularity to real estate acquisitions at bloated prices.
The fact alone that petitioner was aware, in each transaction, that the two (2) deeds of sale contain contradictory costs for every acquisition, and that he failed to rectify the same eloquently speak of his participation in the criminal malevolence. He was a member of the Investment Committee of the AFP-RSBS, which screened potential investments, that were thereafter subjected to further screening and approval by the Executive Committee of which he was also a member; hence, petitioner had full knowledge of the transactions, from the time they were conceptualized until the properties were paid for. The records show that the Tanauan, Batangas properties alone were overpriced by about 600%. Thus, petitioner consented to the crimes charged by the following overt acts:
(1) Petitioner and his co-accused prepared or caused to be prepared two (2) deeds of sale covering the same transactions: a deed of sale with the seller or sellers as the sole signatory or signatories therein (unilateral deeds); and a deed of sale with the seller or sellers and the buyer, AFP-RSBS, represented by petitioner (bilateral deeds);
(2) The considerations in the unilateral deeds of sale and the bilateral deeds of sale did not tally, notwithstanding the fact that they covered the same subject matter and transaction, with the bilateral deeds of sale bearing a bloated price; and,
(3) Of these two deeds, the unilateral deeds of sale bore the correct value given to the seller(s) as evinced, among others, by the fact that the same were the ones registered with the Registry of Deeds.
The bilateral deeds of sale could not possibly be the basis of the transfer of the properties because the supporting bilateral deeds carried dates much later than the date of issue of the titles, which were likewise not filed with the Bureau of Internal Revenue (BIR) and the Registry of Deeds of Tanauan, Batangas. The Court cannot supplant the findings of the Ombudsman that the unilateral deeds of sale were prepared by the Legal Department of AFP-RSBS, in as much as both the unilateral and bilateral deeds of sale have exactly the same print and form. The residence certificate number of petitioner which is indicated in the bilateral deeds of sale is likewise printed in the unilateral deeds. Petitioner’s fraudulent intent is further proven by the fact that the Status of Transaction Form (STF), where the subject lots were endorsed for payment, bore his signature. The unilateral deeds of sale resulted in the issuance of the titles, which were also the supporting documents enumerated in the STF. In many instances, the bilateral deeds of sale carry dates much later than the dates their corresponding titles were issued.
Petitioner was likewise unable to establish his claim that the Sandiganbayan committed grave abuse of discretion in finding probable cause for the issuance of a warrant for his arrest. His bare claim that the Sandiganbayan merely relied on the Memoranda of the Panel of Prosecutors to the Ombudsman and did not scrutinize the evidence appended thereto is not supported by the records. In the first place, the Sandiganbayan is presumed to have performed its duty as provided in the Revised Rules of Criminal Procedure, which can likewise be gleaned from its February 22, 2005 Resolution:
[1] While accused Ramiscal is correct in stating that this Court, in determining the existence of probable cause for the issuance of the warrant of arrest against the accused, had evaluated the resolution of the Office of the Ombudsman and its supporting documents, he is, however, wrong in presuming that such process failed to consider the evidence the accused adduced during preliminary investigation. It should be noted that the supporting documents submitted by the Office of the Ombudsman to this Court included, among others, the counter-affidavits submitted by the accused at the preliminary investigation. Parenthetically, there is no need, and the rules do not require this Court, to enumerate in detail what were the supporting documents it considered in determining the existence of probable cause for the issuance of the warrant of arrest because the same are matters of record that the parties can easily verify.[38]
We agree with the Sandiganbayan’s ruling that the Revised Rules of Criminal Procedure do not require cases to be set for hearing to determine probable cause for the issuance of a warrant for the arrest of the accused before any warrant may be issued. Section 6, Rule 112 mandates the judge to personally evaluate the resolution of the Prosecutor (in this case, the Ombudsman) and its supporting evidence, and if he/she finds probable cause, a warrant of arrest or commitment order may be issued within 10 days from the filing of the complaint or Information; in case the Judge doubts the existence of probable cause, the prosecutor may be ordered to present additional evidence within five (5) days from notice. The provision reads in full:
SEC. 6. When warrant of arrest may issue. — (a) By the Regional Trial Court. – Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation
or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information.[39]
The periods provided in the Revised Rules of Criminal Procedure are mandatory, and as such, the judge must determine the presence or absence of probable cause within such periods. The Sandiganbayan’s determination of probable cause is made ex parte and is summary in nature, not adversarial. The Judge should not be stymied and distracted from his determination of probable cause by needless motions for determination of probable cause filed by the accused.
We hold that petitioner likewise failed to establish his claim that the Sandiganbayan committed a grave abuse of authority in denying his motion to quash the Information.
First. The anti-graft court correctly ruled that it has jurisdiction over the crimes charged.
In People v. Sandiganbayan[40] and Ramiscal, Jr. v. Sandiganbayan,[41] this Court ruled that the AFP-RSBS is a government-owned and controlled corporation, and that its funds are in the nature of public funds. Under Section 4(a)(1)(g) of R.A. No. 8249, the Sandiganbayan has exclusive jurisdiction over offenses committed by presidents, directors, trustees or
managers of government owned or controlled corporations.[42] Under Section 4(b) of R.A. No. 8249, the Sandiganbayan has exclusive jurisdiction over offenses committed by public officers and employees in relation to their office, whether simple or complexed with other crimes.[43]
As gleaned from the material averments of the Information in Criminal Case No. 28023, the charge against petitioner is estafa through falsification of public document in the performance of his duties and in relation to his position as president of the AFP-RSBS.
Second. On petitioner’s claim that he should be charged with only one count of estafa through falsification of public document instead of five (5) charges, respondents counter that the criminal acts petitioner and his co-accused are not continuous crimes. Respondents argue that a continuous crime may exist only if there is only a single criminal intent and the commission of diverse acts is merely a partial execution of said single criminal resolution. In the instant cases, the requirement of singularity of criminal intent does not exist because there are as many criminal intents as there are anomalous transactions, causing grave damage to the government at each instance. There was no need for the accused to perform another or other delictual acts to consummate the felony. Respondents maintain that petitioner was motivated by separate intents as he signed each document, all of which are criminal in character; hence, it is but proper that corresponding Informations be filed against him for each and every act of falsification committed.
The Sandiganbayan, for its part, sustained the contention of respondents and ruled that the determination of (a) the charge/s and the person/s against whom the charge is filed are addressed to the sound discretion of the Prosecutors based on the facts before them; and (b) the crimes committed by petitioner are separate, and not a single crime consisting of series of acts arising from a single criminal resolution. Thus:
In the first place, the question of the number of criminal charges that must be instituted against a criminal respondent (whether one count or multiple counts of the same offense) is one addressed to the sound discretion of the prosecution service. It is enough, as this Court has already ruled, that the informations filed in these cases are based on facts establishing probable cause for the offenses charged. This Court will not compel the Office of the Ombudsman to file only one information for Estafa through Falsification of Public Documents when its preliminary investigation established the commission of several counts thereof as such action on the part of this Court would constitute undue interference with the Office of the Ombudsman’s control over the prosecution of these cases.
In the second place, this Court is not persuaded that what is involved in these cases is a continuous crime, that is to say, a single crime consisting of a series of acts arising from a single criminal resolution or intent not susceptible of division, with each act in that series being merely the partial execution of a single delict. On the contrary, the Court is of the view that what is involved herein are several completed and distinct purported criminal acts which should be prosecuted as multiple counts of the same type of offense. Thus, as correctly perceived by the prosecution, there are as many alleged offenses as there are alleged anomalous transactions involved in these cases.[44]
When required to comment on the motion of petitioner and his co- accused for a consolidation of the charges filed against them before the Sandiganbayan, the Special Prosecutor objected thereto, insisting that there were as many crimes committed by the accused as there were sales contracts forged by them.
Indeed, the determination of what charges to file and who are to be charged are matters addressed to the discretion of the Ombudsman, including the matter of whether the crime perpetrated by petitioner and his co-accused under the Informations pending in the Divisions of the Sandiganbayan constitute delito continuado or classified as concurso de
delitos;
or involve separate crimes under the category of concurso real delito involve factual issues.[45] Such factual issues should be resolved after trial on the merits, and not in this case. The Court is being tasked to determine whether the several sales contracts executed by petitioner and his co-accused were set afoot or triggered by a single impulse and operated by an uninterrupted force however long a time it may occupy, which, however, is a matter best left to the determination of the trial court, in this case, the Sandiganbayan.[46]
Thus, the present petition for certiorari under Rule 65 of the Revised Rules of Court is hardly the appropriate remedy and forum for petitioner to ventilate the issues he has raised, as only jurisdictional issues can be resolved therein. As eloquently expressed by Justice Florenz D. Regalado, speaking for this Court in Iligan v. Court of Appeals:[47]
If, as petitioners seem to apprehend, the adverse actions of two lower courts could create a scenario of multiple prosecutions for the same offense or, more candidly expressed, of double jeopardy, then this is neither the procedural stage nor the proper occasion to pass upon that possibility. For, squarely imputable to petitioners is the evident lack of factual basis for and a grossly defective presentation of that issue for this Court to rule thereon in this proceeding and at this time.[48]
It must be stressed that our disposition of the matters in the present recourse will not foreclose petitioner’s right to ventilate the same in the Sandiganbayan, for as declared in Iligan:
However, this observation would not foreclose relief to petitioners if at the trial of this case the evidence presented and the developments therein suffice to establish the supervening fact that indeed there could possibly be a breach of the rule of double jeopardy. Under Section 8 of Rule 117, they can still hereafter raise that defense of non bis in idem, provided that they can lay the evidentiary bases therefor and refute from the standpoint of substantive penal law what was earlier said on the nature and the non-identity of the several crimes of Estafa involved which, to repeat, we pronounced purely on the bases of existing records sans the benefit of any evidentiary fact since none has been adduced.[49]
On the last issue, we agree with the contention of respondents that the crimes committed by public officers and employees in relation to their offices defined and penalized under the Anti-Graft Law do not exclude prosecution for felonies defined and penalized under the Revised Penal Code and vice versa. Section 3 of R.A. No. 3019 reads:
Section 3. Corrupt practices of public officers.–In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: x x x (Emphasis supplied)
It is clear then that one may be charged of violation of R.A. No. 3019 in addition to a felony under the Revised Penal Code for the same delictual act, that is, either concurrently or subsequent to being charged with a felony under the Code.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. Costs against the petitioner.
SO ORDERED.
ROMEO J. CALLEJO, SR.
Associate Justice
  
              

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