Thursday, February 27, 2014

How is Theft Qualified? What are its Elements? How does the Penalty Differ?



Many commit theft, but a few get prosecuted, or apprehended. Or conversely, maybe many commit theft, because too few get prosecuted, much less sent to jail. In most instances, if the perpetrator is at all identified, victims tire out and withdraw the complaint, or simply lose interest and stop attending the mandatory Preliminary Investigation, thus, causing the dismissal of the case.


In yet other instances, while victims are able to identify the perpetrator, the latter, strangely, always seem to outrun the authorities, and before the latter could warm up, the former could be hundreds of miles away in one of the thousands of islands in the Philippines—enjoying his loot on the beach—or he could go real big, if he knows the drill, and fly out of the country, never to return again.


That’s not even to mention that even if the thief is caught, or is daring enough to stand trial on plea of not guilty, he has all in the law and the Constitution in his favor. For one, the quantum of proof in a criminal case, which theft is, is guilt beyond reasonable doubt or moral certainty. What does this mean? This means that a thief need only create a doubt to escape culpability or prison, since no one can be convicted on even the most tenuous of doubts. If he has been in the business long enough and has amassed enough, he could get himself a good lawyer to even more stack the odds in his favor.


Also, let us consider that the latter half of the enumeration of bill of rights, all of it, under Article Three of the 1987 Constitution pertains to the rights of the accused. These rights are designed to limit the power of the State, and thus, stretch the chances of the accused to escape even prosecution. You see, a thief is one pampered son of a bitch!

However, a warning to the thieves: downplay it at your own risk. Despite these facts, Theft is a very serious felony, which conviction can easily get you 6 years to ten years of jail time. And when committed with any of the circumstances cited under Art. 310 of the Revised Penal Code (RPC)—making it Qualified—you could easily raise the stakes to the possibility of spending a lifetime in prison, depending on your age.

Qualified Theft carries a prescribed penalty of two degrees higher than that prescribed and imposed on simple theft under Art. 308, RPC. Given that, it is easy to get reclusion perpetua or maximum imprisonment under the RPC.

Let us talk about Qualified Theft—its nature and penalty—as discussed in the Court’s decision in one case. To read the case click here.

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The facts as charged in the information. 
 

That in or about and during the period comprised between April 28, 1998 and May 2, 2002, inclusive, in the City of Manila, Philippines, the said accused, did then and there wilfully, unlawfully and feloniously, with intent of gain and without the knowledge and consent of the owner thereof, take, steal and carry away the total amount of P797,187.85 belonging to VIDEO CITY COMMERCIAL, INC. and VIVA VIDEOCITY, INC. represented by MIGUEL Q. SAMILLANO, in the following manner, to wit: by making herself the payee in forty-two pre-signed BPI Family Bank checks in the account of Video City Commercial and Jefferson Tan (the latter as franchise[e]) and encashing said checks in the total amount of P797,187.85, for her personal benefit, to the damage and prejudice of said owner in the aforesaid amount of P797,187.85, Philippine Currency.

That the said accused acted with grave abuse of confidence, she being then employed as bookkeeper in the aforesaid firm and as such was privy to the financial records and checks belonging to complainant and was actually entrusted with the said financial records, documents and checks and their transactions thereof in behalf of complainant.3

Upon arraignment, petitioner pleaded not guilty. Trial thereafter ensued.
Summarily, the prosecution proved the following facts: Video City Commercial, Inc. (VCCI) and Viva Video City, Inc. (Viva) were sister companies which managed a chain of stores known as Video City. These stores, some company-owned while others were operated in joint ventures with franchisees, were engaged in the sale and rental of video-related merchandises. During the period of April 28, 1998 to May 2, 2002, petitioner was the accounting clerk and bookkeeper of VCCI and Viva. One of her duties was to disburse checks for the accounts she handled. She was assigned to handle twelve (12) Video City store franchise accounts, including those of Tommy Uy, Wilma Cheng, Jefferson Tan and Sharon Cuneta. As regards the franchisee Jefferson Tan, who was out of the country most of the time, Tan pre-signed checks to cover the store’s disbursements and entrusted them to petitioner. The pre-signed checks by Jefferson Tan were from a current account maintained jointly by VCCI and Jefferson Tan at BPI Family Bank, Sta. Mesa. There was also an existing agreement with the bank that any disbursement not exceeding P20,000.00 would require only Tan’s signature.4
Convicted by the RTC, and affirmed by CA, Accused filed a petition for review on Certiorari under Rule 45 raising the following issues:
  1. WHETHER OR NOT THE ACCUSED IS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF QUALIFIED THEFT.
1-a. WHETHER THE PHRASE “X X X SHALL TAKE THE PERSONAL PROPERTY OF ANOTHER WITHOUT THE LATTER'S CONSENT X X X” IN ARTICLE 308 OF THE REVISED PENAL CODE IN RELATION TO ARTICLE 310 OF THE SAME CODE WOULD REQUIRE AS AN ELEMENT OF “QUALIFIED THEFT” AN ESTABLISHED PROOF OF “OWNERSHIP” OF THE PROPERTY ALLEGEDLY STOLEN?
1-b. WHETHER IT IS IMPERATIVE THAT THE DUE EXECUTION AND AUTHENTICITY OF THE ALLEGED SIGNATURES OF THE ACCUSED IN THE CHECKS BE FULLY ESTABLISHED AND IDENTIFIED AND IF NOT SO ESTABLISHED AND IDENTIFIED, THE SAME WOULD BE A FATAL FLAW IN THE EVIDENCE OF THE PROSECUTION WHICH INEVITABLY WOULD LEAD TO ACCUSED’S ACQUITTAL?
1-c. WHETHER THE FAILURE TO ESTABLISH AND AUTHENTICATE OR IDENTIFY THE SIGNATURES OF THE ACCUSED ANNIE MIRANDA AND JEFFERSON TAN CONSTITUTED A FATAL FLAW IN PROVING THAT THE ACCUSED AND JEFFERSON TAN WERE THE AUTHORS OF SAID SIGNATURES?
1-d. [WHETHER THE] CONCLUSION OF FACTS BY THE REGIONAL TRIAL COURT AND COURT OF APPEALS ARE NOT SUPPORTED BY EVIDENCE.
1-e. WHETHER THE CHECKS AND VOUCHERS PRESENTED AS EVIDENCE NOT IN THEIR ORIGINALS SHOULD HAVE BEEN DENIED ADMISSION BY THE COURT A QUO, THERE BEING NO SUFFICIENT FACTS ADDUCED TO JUSTIFY THE PRESENTATION OF XEROX COPIES OR SECONDARY EVIDENCE.8 
           Essentially, the issue for our resolution is whether the CA correctly affirmed petitioner’s conviction for qualified theft.
Petitioner insists that she should not have been convicted of qualified theft as the prosecution failed to prove the private complainant’s absolute ownership of the thing stolen. Further, she maintains that Jefferson Tan’s signatures on the checks were not identified by any witness who is familiar with his signature. She likewise stresses that the checks and vouchers presented by the prosecution were not original copies and that no secondary evidence was presented in lieu of the former.
The Court held:
The appeal lacks merit.
A careful review of the records of this case and the parties’ submissions leads the Court to conclude that there exists no cogent reason to disturb the decision of the CA. We note that the arguments raised by petitioner in her petition are a mere rehash of her arguments raised before, and correctly resolved by, the CA.
The elements of the crime of theft as provided for in Article 3089 of the Revised Penal Code 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.10 Theft becomes qualified when any of the following circumstances under Article 31011 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.12
Here, the prosecution was able to prove beyond reasonable doubt that the amount of P797,187.85 taken does not belong to petitioner but to VCCI and that petitioner took it without VCCI’s consent and with grave abuse of confidence by taking advantage of her position as accountant and bookkeeper. The prosecution’s evidence proved that petitioner was entrusted with checks payable to VCCI or Viva by virtue of her position as accountant and bookkeeper. She deposited the said checks to the joint account maintained by VCCI and Jefferson Tan, then withdrew a total of P797,187.85 from said joint account using the pre-signed checks, with her as the payee. In other words, the bank account was merely the instrument through which petitioner stole from her employer VCCI.
We find no cogent reason to disturb the above findings of the trial court which were affirmed by the CA and fully supported by the evidence on record. Time and again, the Court has held that the facts found by the trial court, as affirmed in toto by the CA, are as a general rule, conclusive upon this Court13 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.14 The Court gives weight and respect to the trial court’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.15 Absent any showing that the lower courts overlooked substantial facts and circumstances, which if considered, would change the result of the case, this Court gives deference to the trial court’s appreciation of the facts and of the credibility of witnesses.

Does the Complainant need to be the owner of the personal property stolen?
Moreover, we agree with the CA when it gave short shrift to petitioner’s argument that full ownership of the thing stolen needed to be established first before she could be convicted of qualified theft. As correctly held by the CA, the subject of the crime of theft is any personal property belonging to another. Hence, as long as the property taken does not belong to the accused who has a valid claim thereover, it is immaterial whether said offender stole it from the owner, a mere possessor, or even a thief of the property.16 In any event, as stated above, the factual findings of the courts a quo as to the ownership of the amount petitioner stole is conclusive upon this Court, the finding being adequately supported by the evidence on record.
However, notwithstanding the correctness of the finding of petitioner’s guilt, a modification is called for as regards the imposable penalty. On the imposition of the correct penalty, People v. Mercado17 is instructive. Pursuant to said case, in the determination of the penalty for qualified theft, note is taken of the value of the property stolen, which is P797,187.85 in this case. Since the value exceeds P22,000.00, the basic penalty is prision mayor in its minimum and medium periods to be imposed in the maximum period, that is, eight (8) years, eight (8) months and one (1) day to ten (10) years of prision mayor.
To determine the additional years of imprisonment to be added to the basic penalty, the amount of P22,000.00 is deducted from P797,187.85, which yields a remainder of P775,187.85. This amount is then divided by P10,000.00, disregarding any amount less than P10,000.00. The end result is that 77 years should be added to the basic penalty. However, the total imposable penalty for simple theft should not exceed 20 years. Thus, had petitioner committed simple theft, the penalty would be 20 years of reclusion temporal. As the penalty for qualified theft is two degrees higher, the trial court, as well as the appellate court, should have imposed the penalty of reclusion perpetua.


10 comments:

  1. Atty. Duran, what if a person's identity was the one stolen and used to get credit cards and purchased several good and services? will if fall on qualified theft? what are the things needed to be proven before the court... thank you...

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  2. Sir, I would just like to ask what if the amount taken was just below P5000 in cash and a dress, but the said dress has a sentimental value to the owner? Can it be classified as qualified theft? And where can the case be filed?

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  3. sir, i have an employee in my small merchandising business... as the day ended i wnet to my shop to check if the goods sold are balanced with ending cash balance of the day... then suddenly i found out that there were losses... but instead of asking him for the losses i stayed calm and after few minutes he told me that he has in possession of coins or barya, so i asked him to bring it out and i'll count it. i was expecting barya to be handed over, but he rather gave me 190php(in bills;1pc 100, 1pc 50, and 2pcs of 20) even though such it is still deficit of only 300php... then suddenly few minutes later, again, i dint ask him to hand me over some of the cash, he pulled out another 600bill out of somewhere secured (not from the cash box) and said that it was part of the sales....

    can i have this speculations of mine that he stole cash from the shop, be a legitimate proof to file against him theft?

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  5. Tulungan nyo naman po ako

    Hi!

    laki po ako sa probinsya. nagtrabaho sa Manila. Isang araw, naging biktima po ako ng modus. turned out ako pa po yung na-detained. ang mga naipon ko po sa halip na uuwi na ako dalawang araw bago ang insidente na ito nangyari eh na-gastos ko pa po pang bail at na-loko pa po ako mismo ng pulis na nag-process ng bail ko kasama yung kakilala nyang fixer. pero ang mahalaga po nakalabas ako. please po tulungan nyo po ako hindi ko po alam ang gagawin ko. madedenied po ba ang visa application ko dahil dito?

    maraming salamat po...
    anonymous.user.xxx.111@gmail.com

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  6. Hi Atty. What if accused by qualified theft, employee of the company pero ung finile is ung trabaho or yung duties is hindi sakop ng employment contract and pinapakisuyo lang ng sister company anu po magiging laban ng emloyee dun

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  7. Hi atty. What if yung complainant hindi nag attend sa araignment at sa dalawang beses na mediation pwede na po ba ipadismis yun kaso?

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  8. Hi atty my ex partner stole my marriage certificate and photos of my marriage with my foreign wife by breaking into my apartment dedtroying padlocks entering locked room and opening my bag where my documents were kept. She then later used it as her evidence against me in a vawc case wc was eventually dismissed by the prosecutor. She took my originsal marriage certificate and photos without my consent. Can i sue her for qualified theft? Thank you for your advice

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  9. Thanks Atty. Duran! Do you have any knowledge about NDV Law?

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  10. atty. duran if the amount total is 135. how long po pwede makulong for qualified theft? pls help po pls pls

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