G.R. No. 185224, July 29, 2015
765 Phil. 39
AMELIA CARMELA CONSTANTINO ZOLETA, PETITIONER, VS. THE HONORABLE SANDIGANBAYAN [FOURTH DIVISION] AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.
SECOND DIVISION
[ G.R. No. 185224, July 29, 2015 ]
AMELIA CARMELA CONSTANTINO ZOLETA, PETITIONER, VS. THE HONORABLE SANDIGANBAYAN [FOURTH DIVISION] AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.
DECISION
BRION, J.:
We resolve the petition for review on certiorari[1] filed by petitioner Amelia Carmela Constantino Zoleta assailing the November 5, 2008 decision[2] of the Sandiganbayan (Fourth Division) in Criminal Case No. 28326.
The case stemmed from an anonymous complaint filed against the petitioner, Mary Ann Gadian, and Sheryll Desiree Tangan before the Office of the Ombudsman-Mindanao (Ombudsman) for participating in the scheme of questionable grants and donations to fictitious entities using provincial funds. As a result of this complaint, the Commission on Audit (COA) conducted a special audit in Sarangani Province. Among the irregularities discovered by the Special Audit Team was a P20,000.00 financial assistance given to Women in Progress (WIP), a cooperative whose members were mostly government personnel or relatives of the officials of Sarangani Province.
The COA Special Audit Team submitted its report to the Ombudsman which, in turn, conducted a preliminary investigation. Thereafter, the Ombudsman, through the Office of the Special Prosecutor, charged the petitioner, Vice-Governor Felipe Constantino, Violeta Bahilidad, Maria Camanay, and Teodorico Diaz with malversation of public funds by falsification of public documents defined and penalized under Article 217 in relation to Article 171(2) and Article 48 of the Revised Penal Code, as amended, before the Sandiganbayan in an Information which reads:
On March 22, 2006, the Sandiganbayan issued a Pre-trial Order.[4] The People of the Philippines, though the Office of the Special Prosecutor, filed its Comment and Ex Parte Motion to Include Testimonial Evidence and Issue to Pre-trial Order[5] essentially claiming that the Pre-trial Order did not reflect certain testimonial evidence "as stated during the Pre-Trial."[6]
In its Order[7] dated April 5, 2006, the Sandiganbayan amended certain portions of the Pre-trial Order.
On April 25, 2006, Vice-Governor Constantino died in a vehicular accident, resulting in the dismissal of the case against him.
In its decision dated November 5, 2008, the Sandiganbayan found the petitioner and Bahilidad guilty beyond reasonable doubt of the crime charged, and sentenced them to suffer the indeterminate penalty of fourteen (14) years, eight (8) months and one (1) day, as minimum, to sixteen (16) years, five (5) months, and eleven (11) days of reclusion temporal, as maximum. It also imposed on them the additional penalty of perpetual disqualification from holding any public office. The Sandiganbayan likewise directed them to pay back the Province of Sarangani P20,000.00 plus interest, computed from January 2002 until fully paid.[8]
The Sandiganbayan held that Vice-Governor Constantino had control and custody of the funds by reason of his office, and that his signature was needed before a grant, donation, or assistance could be released to a requesting party. According to the Sandiganbayan, Vice-Governor Constantino approved the P20,000.00 disbursement despite the lack of the required documentation.
The Sandiganbayan further ruled that Vice-Governor Constantino conspired with the other accused in using a dummy organization - WIP - to facilitate the malversation. It explained that the petitioner, who was Vice-Governor Constantino's own daughter and who held the position of Executive Assistant III in his office, committed the following acts: (a) ordered Mary Ann Gadian, a computer operator at the Office of the Sangguniang Panlalawigan of Sarangani, to make a letter-request for financial assistance using a nonexistent cooperative; (b) directed Jane Tangan, the Local Legislative Staff Officer of the Office of the Vice-Governor, to falsify the signature of WIP's secretary, Melanie Remulta, on the request-letter; and (c) certified and approved the disbursement voucher; and then presented it to Diaz, Camanay, and Vice-Governor Constantino for their respective signatures.
The Sandiganbayan likewise ruled that falsification was a necessary means to commit the crime of malversation.
THE PETITION FOR REVIEW ON CERTIORARI
In the present petition, the petitioner argued that: (a) the Sandiganbayan's November 5, 2008 decision in Criminal Case No. 28326 was void because one of its signatories, Justice Gregory Ong, was not a natural-born Filipino citizen per Kilosbayan Foundation v. Exec. Sec. Ermita,[9] and hence not qualified to be a Sandiganbayan justice; (b) the totality of evidence presented by the prosecution was insufficient to overcome the petitioner's presumption of innocence; and (c) the Sandiganbayan denied her due process when it issued its Order dated April 5, 2006, amending certain portions of the pre-trial order without any hearing.
In its Comment,[10] the People countered that Kilosbayan merely required Justice Ong to complete "all necessary steps, through the appropriate adversarial proceedings in court, to show that he is a natural-born Filipino citizen and correct the records of his birth and citizenship." It added that Kilosbayan did not categorically rule that Justice Ong was not a natural-born Filipino who was disqualified from accepting an appointment to the position of Associate Justice of this Court. The People further pointed out that the Court in Topacio v. Ong[11] already acknowledged Justice Ong's actual physical possession and exercise of the functions of the office of an Associate Justice of the Sandiganbayan.
The People likewise argued that the issue of sufficiency of the prosecution evidence is a question of fact which is beyond the province of a petition for review on certiorari. It nonetheless maintained that the Sandiganbayan's findings were supported by the evidence on record.
On the third issue, the People maintained that a person charged with willful malversation can validly be convicted of malversation through negligence.
OUR RULING
We DENY the petition.
I. The Sandiganbayan's November 5, 2008 decision is valid
The petitioner's reliance in Kilosbayan to challenge the validity of the Sandiganbayan's decision is misplaced.
We point out that Kilosbayan arose from a petition for certiorari filed by both Kilosbayan Foundation and Bantay Katarungan - both nongovernmental organizations engaged in public and civic causes - assailing then President Gloria Macapagal-Arroyo's appointment of Justice Ong as an Associate Justice of the Court on the ground that the latter was not a natural-born citizen. Contrary to the petitioner's claim, Kilosbayan did not rule that Justice Ong was not a natural-born Filipino (and hence unqualified to assume the position of a Sandiganbayan Justice). The Court merely stated that Justice Ong cannot accept an appointment to the position of Associate Justice of the Supreme Court or assume the position of that office, "until he shall have successfully completed all the necessary steps, through the appropriate adversarial proceedings in court to show that he is a natural-born Filipino citizen and correct the records of his birth and citizenship."[12]
At any rate, the Court has long settled the issue of Justice Ong's citizenship. After the Court promulgated Kilosbayan, Justice Ong immediately filed with the Regional Trial Court (RTC), Branch 264, Pasig City, a petition for the amendment/ correction/ supplementation or annotation of an entry in [his] Certificate of Birth, docketed as S.P. Proc No. 11767-SJ. In its decision of October 24, 2007, the RTC[13] granted Justice Ong's petition to be recognized as a natural-born Filipino. Consequently, the RTC directed the Civil Registrar of San Juan, Metro Manila to annotate in the Certificate of Birth of Justice Ong its (RTC's) decision.
The RTC denied the motions moving for a reconsideration of its decision.
In its six-page resolution in 2013, the Court En Bane also held that Justice Ong was a natural-born citizen, thus:
In the light of these considerations, we find no basis to invalidate the November 5, 2008 decision of the Sandiganbayan in Criminal Case No. 28326.
II. Only questions of law should be raised in a Rule 45 petition
It is settled that the appellate jurisdiction of the Supreme Court over decisions and final orders of the Sandiganbayan is limited only to questions of law; it does not review the factual findings of the Sandiganbayan which, as a general rule, are conclusive upon the Court.
A question of law exists when there is doubt or controversy as to what the law is on a certain state of facts. On the other hand, a question of fact exists when the doubt or controversy arises as to the truth or falsity of the alleged facts. The resolution of a question of fact necessarily involves a calibration of the evidence, the credibility of the witnesses, the existence and the relevance of surrounding circumstances, and the probability of specific situations.[18]
In the present petition, the petitioner alleges that the presented evidence were insufficient to support a conviction. She thus seeks a re-evaluation of the Sandiganbayan's appreciation of the evidence presented, including the credibility of witnesses and the probative value of their testimonies. The petitioner likewise wants the Court to take a closer look into her claim that the charges against them were politically motivated.
To our mind, the Sandiganbayan's findings that: the testimonies of Gadian and Tangan were credible and worthy of belief; WPI was an unregistered cooperative; the signatures of the petitioner and her co-accused on the disbursement voucher were authentic; Remulta's signature had been forged; and the charges against the accused were not politically motivated, are questions of fact, as these matters were resolved after a calibration of the pieces of evidence presented during trial. The Court will not anymore weigh these pieces of evidence in the absence of a clear showing that these findings had been arrived at arbitrarily or are devoid of support in the records.
At any rate, we hold that the Sandiganbayan correctly convicted the petitioner of the complex crime of malversation of public funds through falsification of public documents.
Malversation may be committed by appropriating public funds or property; by taking or misappropriating the same; by consenting, or through abandonment or negligence, by permitting any other person to take such public funds or property; or by being otherwise guilty of the misappropriation or malversation of such funds or property.[19]
The elements common to all acts of malversation under Article 217 of the Revised Penal Code, as amended, are the following: (a) that the offender be a public officer; (b) that he had custody or control of funds or property by reason of the duties of his office; (c) that those funds or property were public funds or property for which he was accountable; and (d) that he appropriated, took, misappropriated or consented, or through abandonment or negligence, permitted another person to take them. All these elements have been established by the prosecution.
First, it is undisputed that all the accused, except Bahilidad, are all public officers. A public officer is defined in the Revised Penal Code as any person who, by direct provision of the law, popular election, or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent, or subordinate official, of any rank or class. Constantino was the Vice-Governor of Sarangani Province, while the petitioner, Camanay, and Diaz were occupying the positions of Executive Assistant (at the Office of the Vice-Governor), Provincial Accountant, and Provincial Board Member, respectively.
Second, the funds misappropriated are public in character, as they were funds belonging to the Province of Sarangani.
Third, Vice-Governor Constantino and Camanay were accountable public officers. Under the Government Auditing Code of the Philippines, an accountable public officer is a public officer who, by reason of his office, is accountable for public funds or property. The Local Government Code expanded this definition with regard to local government officials. Section 340 of the LGC reads:
As a required standard procedure, the signatures of, among others, the Vice-Governor and the Provincial Accountant are needed before any disbursement of public funds can be made. No checks can be prepared and no payment can be effected without their signatures on a disbursement voucher and the corresponding check. In other words, any disbursement and release of public funds require their approval. Thus, Constantino and Camanay, in their capacities as Vice-Governor and Provincial Accountant, had control and responsibility over the subject funds.
Finally, Vice-Governor Constantino and Camanay appropriated, took, misappropriated or consented, or through abandonment or negligence, permitted another person to take the public funds when they signed Disbursement Voucher No. 101-2002-01-822. The term voucher, when used in connection with disbursement of money, implies some instrument that shows on what account or by what authority a particular payment has been made, or that services have been performed which entitle the party to whom it is issued to payment. Corollarily, when an authorized person approves a disbursement voucher, he certifies to the correctness of the entries therein, among others: that the expenses incurred were necessary and lawful, the supporting documents are complete, and the availability of cash therefor. He also attests that the person who performed the services or delivered the supplies, materials, or equipment is entitled to payment.[21]
Notably, the signatures of Camanay and Vice-Governor Constantino also appeared on the Allotment and Obligation Slip (ALOBS) and in Land Bank Check No. 0000036481, respectively. Their respective signatures in these documents allowed Bahilidad to encash P20,000.00. We also point out that although the purported request was made by the WIP, the check was made payable to a private person, that is, Bahilidad. According to Helen Calling, the leader of the COA Special Audit Team, there were no supporting documents attached to this disbursement voucher proving that Bahilidad was indeed the treasurer of WIP.
We also agree with the Sandiganbayan's ruling that falsification was a necessary means to commit the crime of malversation. Article 171, paragraphs (2) and (5) of the Revised Penal Code, provides:
The Presence of Conspiracy
Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy does not need to be proven by direct evidence and may be inferred from the conduct — before, during, and after the commission of the crime — indicative of a joint purpose, concerted action, and concurrence of sentiments. In conspiracy, the act of one is the act of all. Conspiracy is present when one concurs with the criminal design of another, as shown by an overt act leading to the crime committed. It may be deduced from the mode and manner of the commission of the crime.[22]
In the present case, the records established with moral certainty that the petitioner and her co-accused acted in concert to achieve a common objective. The presence of conspiracy between the petitioner and her co-accused was explained by the Sandiganbayan as follows:
The connivance between the accused is made more glaring by the fact that the entire transaction — from the letter-request, to the approval of the disbursement voucher, until the processing and release of the check — was completed in only one day. We note, too, that the disbursement had been approved even without the required supporting documents such as the Articles of Cooperation and Certificate from the Cooperative Development Authority. There was also noncompliance with the COA-prescribed auditing and accounting guidelines on the release of fund assistance to NGOs, such as the required monitoring and inspection report either by the Office of the Provincial Agriculturist or the Provincial Engineering Office. As earlier stated, the purported request was made by WIP, but the check was made payable to Bahilidad (despite the COA's findings that there were no supporting documents proving that she was WIP's treasurer).
We are aware that Bahilidad was acquitted by this Court in G.R. No. 185195[23] - a case where she questioned her conviction by the Sandiganbayan. This does not preclude us, however, from ruling that the other accused, i.e., Vice-Governor Constantino, Diaz, Camanay, and the petitioner, conspired with each other to attain a common objective. We point out that Bahilidad's acquittal was anchored on the fact that she had no hand in the preparation, processing or disbursing of the check issued in her name. It cannot be denied in the present case that the petitioner, Vice-Governor Constantino, Diaz, and Camanay, all participated in the preparation and processing of Disbursement Voucher No. 101-2002-01-822[24] as evidenced by their respective signatures affixed there. Sanggunian Panlalawigan Bookbinder[25] Gadian, in fact, witnessed Vice-Governor Constantino, Camanay, and Diaz sign these documents.
In Barriga v. Sandiganbayan,[26] we ruled that:
The petitioner claims that he was denied due process when the Sandiganbayan granted the prosecution's motion to amend certain portions of the pre-trial order without any hearing. In essence, the petitioner argues that she could not be convicted of malversation through consent, abandonment, or negligence because this allegation was not contained in the Information.
The petitioner's argument lacks merit.
Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same offense of malversation is involved and conviction thereof is proper. All that is necessary for conviction is sufficient proof that the accountable officer had received public funds, that he did not have them in his possession when demand therefor was made, and that he could not satisfactorily explain his failure to do so. Direct evidence of personal misappropriation by the accused is hardly necessary as long as the accused cannot explain satisfactorily the shortage in his accounts.[27]
In People v. Consigna, et al.,[28] the Court first ruled that an accused charged with wilful malversation can be validly convicted of malversation through negligence where the evidence sustains the latter mode of perpetrating the offense.
Similarly, in People v. Ochoa,[29] the Court stated that [e]ven when the Information charges wilful malversation, conviction for malversation through negligence may still be adjudged if the evidence ultimately proves that mode of commission of the offense.
In Tubola, Jr. v. Sandiganbayan,[30] we affirmed the accused's conviction of malversation of public funds under Article 217 of the Revised Penal Code, and reasoned out as follows:
We modify the maximum term of the penalty imposed on the petitioner by the Sandiganbayan, from sixteen (16) years, five (5) months, and eleven (11) days to eighteen (18) years, two (2) months, and twenty one (21) days of reclusion temporal, in accordance with Articles 48 and 217 of the Revised Penal Code, as amended, in relation to the Indeterminate Sentence Law.[31]
WHEREFORE, in the light of all the foregoing, we DENY the petition. Accordingly, we AFFIRM the November 5, 2008 decision of the Sandiganbayan (Fourth Division) in Criminal Case No. 28326 with the MODIFICATION that the maximum term of the penalty imposed on the petitioner be increased from sixteen (16) years, five (5) months, and eleven (11) days to eighteen (18) years, two (2) months and twenty one (21) days of reclusion temporal.
SO ORDERED.
Carpio, (Chairperson), Mendoza, Perlas-Bernabe,* and Leonen, JJ., concur.
* Designated as Acting Member in lieu of Associate Justice Mariano C. Del Castillo, per Special Order No. 2115 dated July 22, 2015.
[1] Rollo, pp. 15-57.
[2] Id. at 58-89; penned by Sandiganbayan Associate Justice Jose R. Hernandez, and concurred in by Associate Justices Gregory Ong and Roland Jurado.
[3] Id. at 99-100.
[4] Id. at 105-112.
[5] Id. at 113-115.
[6] Id. at 113.
[7] Id. at 117-118. In this Order, Issue No. 3, i.e., whether or not the accused took, misappropriated, embezzled or converted to their personal use and benefit the said amount, was amended to read: "Whether or not the accused took, misappropriated, embezzled or converted to their personal use and benefit the said amount or consented or through abandonment or negligence permitted any other to take the said amount."
[8] In this decision, the Sandiganbayan archived the case against Teodorico Diaz and Maria Camanay until the Court acquires jurisdiction over their person.
[9] 553 Phil. 331 (2007).
[10] Rollo, pp. 131-164.
[11] G.R. No. 179895, December 18, 2008, 574 SCRA 817.
[12] Supra note 7, at 343-344.
[13] Penned by Judge Leoncio Janolo, Jr.
[14] See http://www.gmanetwork.com/news/story/ (visited on May 13, 2015); and http://philja.judiciary.gov.ph/assets/files/pdf/PHILJA_Bulletin/Bul57.pdf (visited on May 14, 2015).
[15] See General Manager, Philippine Ports Authority v. Monserate, G.R. No. 129616, April 17, 2002, 381 SCRA 200, 213.
[16] See Dimaandal v. Commission on Audit, 353 Phil. 525, 534 (1998), citing the Philippine Law Dictionary, p. 162.
[17] See Dennis A.B. Funa v. Acting Secretary of Justice Alberto Agra, et al., G.R. No. 191644, February 19, 2013.
[18] Cabaron v. People, G.R. No. 156981, October 5, 2009, 603 SCRA 1, 7.
[19] See Pondevida v. Sandiganabayan, 504 Phil. 489, 507 (2005).
[20] See Frias, Sr. v. People, 561 Phil. 55, 64 (2007).
[21] See Atienza v. Villarosa, 497 Phil. 689, 703-704 (2005).
[22] See People v. Pajaro, et al., 577 Phil. 441, 455 (2008).
[23] Bahilidad v. People, G.R. No. 185195, March 17, 2010, 615 SCRA 597.
[24] Records, Vol. III, p. 10.
[25] Detailed at the Office of the Vice-Governor.
[26] 496 Phil. 764, 775 (2005).
[27] Cantos v. People, G.R. No. 184908, July 3, 2013, 700 SCRA 535, 545-546.
[28] 122 Phil. 293, 296 (1965).
[29] 511 Phil. 682 (2005).
[30] G.R. No. 154042, April 11, 2011, 647 SCRA 446, 459 citing Cabello v. Sandiganbayan, G.R. No. 93885, May 14, 1991, 197 SCRA 94.
[31] See also discussion in Zafra v. People, G.R. No. 176317, July 23, 2014.
The case stemmed from an anonymous complaint filed against the petitioner, Mary Ann Gadian, and Sheryll Desiree Tangan before the Office of the Ombudsman-Mindanao (Ombudsman) for participating in the scheme of questionable grants and donations to fictitious entities using provincial funds. As a result of this complaint, the Commission on Audit (COA) conducted a special audit in Sarangani Province. Among the irregularities discovered by the Special Audit Team was a P20,000.00 financial assistance given to Women in Progress (WIP), a cooperative whose members were mostly government personnel or relatives of the officials of Sarangani Province.The COA Special Audit Team submitted its report to the Ombudsman which, in turn, conducted a preliminary investigation. Thereafter, the Ombudsman, through the Office of the Special Prosecutor, charged the petitioner, Vice-Governor Felipe Constantino, Violeta Bahilidad, Maria Camanay, and Teodorico Diaz with malversation of public funds by falsification of public documents defined and penalized under Article 217 in relation to Article 171(2) and Article 48 of the Revised Penal Code, as amended, before the Sandiganbayan in an Information which reads:
That on January 24, 2002 or prior or subsequent thereto in Sarangani, Philippines, and within the jurisdiction of this Honorable Court, accused Felipe Katu Constantino, a high-ranking public officer, being the Vice-Governor of the Province of Sarangani, Maria D. Camanay, Provincial Accountant, Teodorico F. Diaz, Provincial Board Member, Amelia Carmela C. Zoleta, Executive Assistant III, all accountable public officials of the Provincial Government of Sarangani, by reason of the duties of their office, conspiring and confederating with Violita Bahilidad, private individual, the public officers, while committing the offense in relation to office, taking advantage of their respective positions, did then and there wilfully, unlawfully and feloniously take, convert and misappropriate the amount of TWENTY THOUSAND PESOS (P20,000.00), Philippine Currency, in public funds under their custody, and for which they are accountable, by falsifying or causing to be falsified the corresponding Disbursement Voucher No. 101-2002-01-822 and its supporting documents, making it appear that financial assistance had been sought by Women In Progress, Malungon, Sarangani, represented by its President, Amelia Carmela C. Zoleta, when in truth and in fact, the accused knew fully well that no financial assistance had been requested by the said group and her association, nor did Amelia Carmela C. Zoleta and her association receive the aforementioned amount, thereby facilitating the release of the above-mentioned public funds in the amount of TWENTY THOUSAND PESOS (P20,000.00) through encashment by the accused at Land Bank of the Philippines (LBP) Check No. 36481 dated January 24, 2002 issued in the name of the Violeta Bahilidad, which amount they subsequently misappropriated to their personal use and benefit and despite demand, the said accused failed to return the said amount to the damage and prejudice of the government and the public interest of the aforesaid sum.On arraignment, the petitioner, Vice-Governor Constantino and Bahilidad pleaded "not guilty." Diaz and Camanay, on the other hand, remained at large.
CONTRARY TO LAW.[3] (Emphasis in the original.)
On March 22, 2006, the Sandiganbayan issued a Pre-trial Order.[4] The People of the Philippines, though the Office of the Special Prosecutor, filed its Comment and Ex Parte Motion to Include Testimonial Evidence and Issue to Pre-trial Order[5] essentially claiming that the Pre-trial Order did not reflect certain testimonial evidence "as stated during the Pre-Trial."[6]
In its Order[7] dated April 5, 2006, the Sandiganbayan amended certain portions of the Pre-trial Order.
On April 25, 2006, Vice-Governor Constantino died in a vehicular accident, resulting in the dismissal of the case against him.
In its decision dated November 5, 2008, the Sandiganbayan found the petitioner and Bahilidad guilty beyond reasonable doubt of the crime charged, and sentenced them to suffer the indeterminate penalty of fourteen (14) years, eight (8) months and one (1) day, as minimum, to sixteen (16) years, five (5) months, and eleven (11) days of reclusion temporal, as maximum. It also imposed on them the additional penalty of perpetual disqualification from holding any public office. The Sandiganbayan likewise directed them to pay back the Province of Sarangani P20,000.00 plus interest, computed from January 2002 until fully paid.[8]
The Sandiganbayan held that Vice-Governor Constantino had control and custody of the funds by reason of his office, and that his signature was needed before a grant, donation, or assistance could be released to a requesting party. According to the Sandiganbayan, Vice-Governor Constantino approved the P20,000.00 disbursement despite the lack of the required documentation.
The Sandiganbayan further ruled that Vice-Governor Constantino conspired with the other accused in using a dummy organization - WIP - to facilitate the malversation. It explained that the petitioner, who was Vice-Governor Constantino's own daughter and who held the position of Executive Assistant III in his office, committed the following acts: (a) ordered Mary Ann Gadian, a computer operator at the Office of the Sangguniang Panlalawigan of Sarangani, to make a letter-request for financial assistance using a nonexistent cooperative; (b) directed Jane Tangan, the Local Legislative Staff Officer of the Office of the Vice-Governor, to falsify the signature of WIP's secretary, Melanie Remulta, on the request-letter; and (c) certified and approved the disbursement voucher; and then presented it to Diaz, Camanay, and Vice-Governor Constantino for their respective signatures.
The Sandiganbayan likewise ruled that falsification was a necessary means to commit the crime of malversation.
In the present petition, the petitioner argued that: (a) the Sandiganbayan's November 5, 2008 decision in Criminal Case No. 28326 was void because one of its signatories, Justice Gregory Ong, was not a natural-born Filipino citizen per Kilosbayan Foundation v. Exec. Sec. Ermita,[9] and hence not qualified to be a Sandiganbayan justice; (b) the totality of evidence presented by the prosecution was insufficient to overcome the petitioner's presumption of innocence; and (c) the Sandiganbayan denied her due process when it issued its Order dated April 5, 2006, amending certain portions of the pre-trial order without any hearing.
In its Comment,[10] the People countered that Kilosbayan merely required Justice Ong to complete "all necessary steps, through the appropriate adversarial proceedings in court, to show that he is a natural-born Filipino citizen and correct the records of his birth and citizenship." It added that Kilosbayan did not categorically rule that Justice Ong was not a natural-born Filipino who was disqualified from accepting an appointment to the position of Associate Justice of this Court. The People further pointed out that the Court in Topacio v. Ong[11] already acknowledged Justice Ong's actual physical possession and exercise of the functions of the office of an Associate Justice of the Sandiganbayan.
The People likewise argued that the issue of sufficiency of the prosecution evidence is a question of fact which is beyond the province of a petition for review on certiorari. It nonetheless maintained that the Sandiganbayan's findings were supported by the evidence on record.
On the third issue, the People maintained that a person charged with willful malversation can validly be convicted of malversation through negligence.
We DENY the petition.
I. The Sandiganbayan's November 5, 2008 decision is valid
The petitioner's reliance in Kilosbayan to challenge the validity of the Sandiganbayan's decision is misplaced.
We point out that Kilosbayan arose from a petition for certiorari filed by both Kilosbayan Foundation and Bantay Katarungan - both nongovernmental organizations engaged in public and civic causes - assailing then President Gloria Macapagal-Arroyo's appointment of Justice Ong as an Associate Justice of the Court on the ground that the latter was not a natural-born citizen. Contrary to the petitioner's claim, Kilosbayan did not rule that Justice Ong was not a natural-born Filipino (and hence unqualified to assume the position of a Sandiganbayan Justice). The Court merely stated that Justice Ong cannot accept an appointment to the position of Associate Justice of the Supreme Court or assume the position of that office, "until he shall have successfully completed all the necessary steps, through the appropriate adversarial proceedings in court to show that he is a natural-born Filipino citizen and correct the records of his birth and citizenship."[12]
At any rate, the Court has long settled the issue of Justice Ong's citizenship. After the Court promulgated Kilosbayan, Justice Ong immediately filed with the Regional Trial Court (RTC), Branch 264, Pasig City, a petition for the amendment/ correction/ supplementation or annotation of an entry in [his] Certificate of Birth, docketed as S.P. Proc No. 11767-SJ. In its decision of October 24, 2007, the RTC[13] granted Justice Ong's petition to be recognized as a natural-born Filipino. Consequently, the RTC directed the Civil Registrar of San Juan, Metro Manila to annotate in the Certificate of Birth of Justice Ong its (RTC's) decision.
The RTC denied the motions moving for a reconsideration of its decision.
In its six-page resolution in 2013, the Court En Bane also held that Justice Ong was a natural-born citizen, thus:
The pronouncements of the Court in both GR No. 179895 and GR No. 180543, and the finality of the decision rendered by the RTC on October 24, 2007, in S.P. No. 11767-SJ recognizing Justice Ong as a natural born citizen of the Philippines and directing the correction of the existing records of his birth and citizenship have already definitively settled the subject of the query posed by SP Villa-Ignacio.[14]Even without this ruling, we hold that Justice Ong was a de facto officer during the period of his incumbency as a Sandiganbayan Associate Justice. A de facto officer is one who is in possession of an office and who openly exercises its functions under color of an appointment or election, even though such appointment or election may be irregular.[15] It is likewise defined as one who is in possession of an office, and is discharging its duties under color of authority, by which is meant authority derived from an appointment, however irregular or informal, so that the incumbent be not a mere volunteer.[16] Consequently, the acts of the de facto officer are as valid for all purposes as those of a de jure officer, in so far as the public or third persons who are interested therein are concerned.[17]
In the light of these considerations, we find no basis to invalidate the November 5, 2008 decision of the Sandiganbayan in Criminal Case No. 28326.
II. Only questions of law should be raised in a Rule 45 petition
It is settled that the appellate jurisdiction of the Supreme Court over decisions and final orders of the Sandiganbayan is limited only to questions of law; it does not review the factual findings of the Sandiganbayan which, as a general rule, are conclusive upon the Court.
A question of law exists when there is doubt or controversy as to what the law is on a certain state of facts. On the other hand, a question of fact exists when the doubt or controversy arises as to the truth or falsity of the alleged facts. The resolution of a question of fact necessarily involves a calibration of the evidence, the credibility of the witnesses, the existence and the relevance of surrounding circumstances, and the probability of specific situations.[18]
In the present petition, the petitioner alleges that the presented evidence were insufficient to support a conviction. She thus seeks a re-evaluation of the Sandiganbayan's appreciation of the evidence presented, including the credibility of witnesses and the probative value of their testimonies. The petitioner likewise wants the Court to take a closer look into her claim that the charges against them were politically motivated.
To our mind, the Sandiganbayan's findings that: the testimonies of Gadian and Tangan were credible and worthy of belief; WPI was an unregistered cooperative; the signatures of the petitioner and her co-accused on the disbursement voucher were authentic; Remulta's signature had been forged; and the charges against the accused were not politically motivated, are questions of fact, as these matters were resolved after a calibration of the pieces of evidence presented during trial. The Court will not anymore weigh these pieces of evidence in the absence of a clear showing that these findings had been arrived at arbitrarily or are devoid of support in the records.
At any rate, we hold that the Sandiganbayan correctly convicted the petitioner of the complex crime of malversation of public funds through falsification of public documents.
Malversation may be committed by appropriating public funds or property; by taking or misappropriating the same; by consenting, or through abandonment or negligence, by permitting any other person to take such public funds or property; or by being otherwise guilty of the misappropriation or malversation of such funds or property.[19]
The elements common to all acts of malversation under Article 217 of the Revised Penal Code, as amended, are the following: (a) that the offender be a public officer; (b) that he had custody or control of funds or property by reason of the duties of his office; (c) that those funds or property were public funds or property for which he was accountable; and (d) that he appropriated, took, misappropriated or consented, or through abandonment or negligence, permitted another person to take them. All these elements have been established by the prosecution.
First, it is undisputed that all the accused, except Bahilidad, are all public officers. A public officer is defined in the Revised Penal Code as any person who, by direct provision of the law, popular election, or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent, or subordinate official, of any rank or class. Constantino was the Vice-Governor of Sarangani Province, while the petitioner, Camanay, and Diaz were occupying the positions of Executive Assistant (at the Office of the Vice-Governor), Provincial Accountant, and Provincial Board Member, respectively.
Second, the funds misappropriated are public in character, as they were funds belonging to the Province of Sarangani.
Third, Vice-Governor Constantino and Camanay were accountable public officers. Under the Government Auditing Code of the Philippines, an accountable public officer is a public officer who, by reason of his office, is accountable for public funds or property. The Local Government Code expanded this definition with regard to local government officials. Section 340 of the LGC reads:
Section 340. Persons Accountable for Local Government Funds. — Any officer of the local government unit whose duty permits or requires the possession or custody of local government funds shall be accountable and responsible for the safekeeping thereof in conformity with the provisions of this title. Other local officials, though not accountable by the nature of their duties, may likewise be similarly held accountable and responsible for local government funds through their participation in the use or application thereof. (Emphasis ours.)Local government officials become accountable public officers either (1) because of the nature of their functions; or (2) on account of their participation in the use or application of public funds.[20]
As a required standard procedure, the signatures of, among others, the Vice-Governor and the Provincial Accountant are needed before any disbursement of public funds can be made. No checks can be prepared and no payment can be effected without their signatures on a disbursement voucher and the corresponding check. In other words, any disbursement and release of public funds require their approval. Thus, Constantino and Camanay, in their capacities as Vice-Governor and Provincial Accountant, had control and responsibility over the subject funds.
Finally, Vice-Governor Constantino and Camanay appropriated, took, misappropriated or consented, or through abandonment or negligence, permitted another person to take the public funds when they signed Disbursement Voucher No. 101-2002-01-822. The term voucher, when used in connection with disbursement of money, implies some instrument that shows on what account or by what authority a particular payment has been made, or that services have been performed which entitle the party to whom it is issued to payment. Corollarily, when an authorized person approves a disbursement voucher, he certifies to the correctness of the entries therein, among others: that the expenses incurred were necessary and lawful, the supporting documents are complete, and the availability of cash therefor. He also attests that the person who performed the services or delivered the supplies, materials, or equipment is entitled to payment.[21]
Notably, the signatures of Camanay and Vice-Governor Constantino also appeared on the Allotment and Obligation Slip (ALOBS) and in Land Bank Check No. 0000036481, respectively. Their respective signatures in these documents allowed Bahilidad to encash P20,000.00. We also point out that although the purported request was made by the WIP, the check was made payable to a private person, that is, Bahilidad. According to Helen Calling, the leader of the COA Special Audit Team, there were no supporting documents attached to this disbursement voucher proving that Bahilidad was indeed the treasurer of WIP.
We also agree with the Sandiganbayan's ruling that falsification was a necessary means to commit the crime of malversation. Article 171, paragraphs (2) and (5) of the Revised Penal Code, provides:
ART. 171. Falsification by public officer, employee or notary or ecclesiastic minister. - The penalty of prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts:In the present case, the records showed that the petitioner ordered Tangan to sign above the name of Remulta in the letter-request to make it appear that the latter, as WIP Secretary, consented to the request for financial assistance. We note, too, that this letter-request was made on January 24, 2002, but Gadian antedated it to January 7, 2002, so that the transaction would not look suspicious (considering that both the disbursement voucher and check were also dated January 24, 2002).
x x x x
2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate;
x x x x
The Presence of Conspiracy
Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy does not need to be proven by direct evidence and may be inferred from the conduct — before, during, and after the commission of the crime — indicative of a joint purpose, concerted action, and concurrence of sentiments. In conspiracy, the act of one is the act of all. Conspiracy is present when one concurs with the criminal design of another, as shown by an overt act leading to the crime committed. It may be deduced from the mode and manner of the commission of the crime.[22]
In the present case, the records established with moral certainty that the petitioner and her co-accused acted in concert to achieve a common objective. The presence of conspiracy between the petitioner and her co-accused was explained by the Sandiganbayan as follows:
The concurrence of wills or unity of purpose and action between the accused is indubitable. A careful scrutiny of the records revealed that indeed: (a) the petitioner signed the letter-request for financial assistance, and this was approved by Diaz and Vice-Governor Constantino; (b) the ALOBS was signed by Camanay; (c) Disbursement Voucher No. 101-2002-01-822 was signed by Vice-Governor Constantino, Diaz and Camanay; and (d) Land Bank Check No. 0000036481 was signed by Vice-Governor Constantino.x x x x
Moreover, the testimony of Gadian and Tangan indubitably established that accused Constantino and Zoleta took advantage of their official positions. Zoleta ordered Gadian to make a request using a nonexistent cooperative. She ordered Tangan to falsify the signature of Remulta in the request letter. Both followed the directive of Zoleta, being their superior, the Executive Assistant and the daughter of the Vice-Governor who places her initials before the Vice-Governor affixes his own signature. Despite the irregularity, accused Constantino approved the disbursement.
The facts taken together would prove the existence of conspiracy. Zoleta, as president of an inexistent association and a co-terminous employee at the office of her father, initiated the request for obligation of allotments and certified and approved the disbursement voucher. There is no doubt that Constantino facilitated the illegal release of the fund by signing the questioned voucher. Without the signatures of accused Constantino, Zoleta, and Bahilidad, the amount could not have been disbursed on that particular day. When the voucher with its supporting documents was presented to accused Constantino, Diaz, and Camanay for approval and signature, they readily signed them without further ado, despite the lack of proper documentation and noncompliance of the rules. Zoleta had contact with the payee of the check, Bahilidad, and received the amount. Their combined acts, coupled with the falsification of the signature of Remulta, all lead to the conclusion that the accused conspired to defraud the government.
The connivance between the accused is made more glaring by the fact that the entire transaction — from the letter-request, to the approval of the disbursement voucher, until the processing and release of the check — was completed in only one day. We note, too, that the disbursement had been approved even without the required supporting documents such as the Articles of Cooperation and Certificate from the Cooperative Development Authority. There was also noncompliance with the COA-prescribed auditing and accounting guidelines on the release of fund assistance to NGOs, such as the required monitoring and inspection report either by the Office of the Provincial Agriculturist or the Provincial Engineering Office. As earlier stated, the purported request was made by WIP, but the check was made payable to Bahilidad (despite the COA's findings that there were no supporting documents proving that she was WIP's treasurer).
We are aware that Bahilidad was acquitted by this Court in G.R. No. 185195[23] - a case where she questioned her conviction by the Sandiganbayan. This does not preclude us, however, from ruling that the other accused, i.e., Vice-Governor Constantino, Diaz, Camanay, and the petitioner, conspired with each other to attain a common objective. We point out that Bahilidad's acquittal was anchored on the fact that she had no hand in the preparation, processing or disbursing of the check issued in her name. It cannot be denied in the present case that the petitioner, Vice-Governor Constantino, Diaz, and Camanay, all participated in the preparation and processing of Disbursement Voucher No. 101-2002-01-822[24] as evidenced by their respective signatures affixed there. Sanggunian Panlalawigan Bookbinder[25] Gadian, in fact, witnessed Vice-Governor Constantino, Camanay, and Diaz sign these documents.
In Barriga v. Sandiganbayan,[26] we ruled that:
It must be stressed that a public officer who is not in charge of public funds or property by virtue of her official position, or even a private individual, may be liable for malversation or illegal use of public funds or property if such public officer or private individual conspires with an accountable public officer to commit malversation or illegal use of public funds or property.III. No denial of due process
The petitioner claims that he was denied due process when the Sandiganbayan granted the prosecution's motion to amend certain portions of the pre-trial order without any hearing. In essence, the petitioner argues that she could not be convicted of malversation through consent, abandonment, or negligence because this allegation was not contained in the Information.
The petitioner's argument lacks merit.
Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same offense of malversation is involved and conviction thereof is proper. All that is necessary for conviction is sufficient proof that the accountable officer had received public funds, that he did not have them in his possession when demand therefor was made, and that he could not satisfactorily explain his failure to do so. Direct evidence of personal misappropriation by the accused is hardly necessary as long as the accused cannot explain satisfactorily the shortage in his accounts.[27]
In People v. Consigna, et al.,[28] the Court first ruled that an accused charged with wilful malversation can be validly convicted of malversation through negligence where the evidence sustains the latter mode of perpetrating the offense.
Similarly, in People v. Ochoa,[29] the Court stated that [e]ven when the Information charges wilful malversation, conviction for malversation through negligence may still be adjudged if the evidence ultimately proves that mode of commission of the offense.
In Tubola, Jr. v. Sandiganbayan,[30] we affirmed the accused's conviction of malversation of public funds under Article 217 of the Revised Penal Code, and reasoned out as follows:
Besides, even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the information was for intentional malversation, under the circumstances of this case his conviction under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same offense of malversation is involved and conviction thereof is proper. A possible exception would be when the mode of commission alleged in the particulars of the indictment is so far removed from the ultimate categorization of the crime that it may be said due process was denied by deluding the accused into an erroneous comprehension of the charge against him. That no such prejudice was occasioned on petitioner nor was he beleaguered in his defense is apparent from the records of this case. (Underscoring and emphasis in the original.)The Proper Penalty
We modify the maximum term of the penalty imposed on the petitioner by the Sandiganbayan, from sixteen (16) years, five (5) months, and eleven (11) days to eighteen (18) years, two (2) months, and twenty one (21) days of reclusion temporal, in accordance with Articles 48 and 217 of the Revised Penal Code, as amended, in relation to the Indeterminate Sentence Law.[31]
WHEREFORE, in the light of all the foregoing, we DENY the petition. Accordingly, we AFFIRM the November 5, 2008 decision of the Sandiganbayan (Fourth Division) in Criminal Case No. 28326 with the MODIFICATION that the maximum term of the penalty imposed on the petitioner be increased from sixteen (16) years, five (5) months, and eleven (11) days to eighteen (18) years, two (2) months and twenty one (21) days of reclusion temporal.
SO ORDERED.
Carpio, (Chairperson), Mendoza, Perlas-Bernabe,* and Leonen, JJ., concur.
* Designated as Acting Member in lieu of Associate Justice Mariano C. Del Castillo, per Special Order No. 2115 dated July 22, 2015.
[1] Rollo, pp. 15-57.
[2] Id. at 58-89; penned by Sandiganbayan Associate Justice Jose R. Hernandez, and concurred in by Associate Justices Gregory Ong and Roland Jurado.
[3] Id. at 99-100.
[4] Id. at 105-112.
[5] Id. at 113-115.
[6] Id. at 113.
[7] Id. at 117-118. In this Order, Issue No. 3, i.e., whether or not the accused took, misappropriated, embezzled or converted to their personal use and benefit the said amount, was amended to read: "Whether or not the accused took, misappropriated, embezzled or converted to their personal use and benefit the said amount or consented or through abandonment or negligence permitted any other to take the said amount."
[8] In this decision, the Sandiganbayan archived the case against Teodorico Diaz and Maria Camanay until the Court acquires jurisdiction over their person.
[9] 553 Phil. 331 (2007).
[10] Rollo, pp. 131-164.
[11] G.R. No. 179895, December 18, 2008, 574 SCRA 817.
[12] Supra note 7, at 343-344.
[13] Penned by Judge Leoncio Janolo, Jr.
[14] See http://www.gmanetwork.com/news/story/ (visited on May 13, 2015); and http://philja.judiciary.gov.ph/assets/files/pdf/PHILJA_Bulletin/Bul57.pdf (visited on May 14, 2015).
[15] See General Manager, Philippine Ports Authority v. Monserate, G.R. No. 129616, April 17, 2002, 381 SCRA 200, 213.
[16] See Dimaandal v. Commission on Audit, 353 Phil. 525, 534 (1998), citing the Philippine Law Dictionary, p. 162.
[17] See Dennis A.B. Funa v. Acting Secretary of Justice Alberto Agra, et al., G.R. No. 191644, February 19, 2013.
[18] Cabaron v. People, G.R. No. 156981, October 5, 2009, 603 SCRA 1, 7.
[19] See Pondevida v. Sandiganabayan, 504 Phil. 489, 507 (2005).
[20] See Frias, Sr. v. People, 561 Phil. 55, 64 (2007).
[21] See Atienza v. Villarosa, 497 Phil. 689, 703-704 (2005).
[22] See People v. Pajaro, et al., 577 Phil. 441, 455 (2008).
[23] Bahilidad v. People, G.R. No. 185195, March 17, 2010, 615 SCRA 597.
[24] Records, Vol. III, p. 10.
[25] Detailed at the Office of the Vice-Governor.
[26] 496 Phil. 764, 775 (2005).
[27] Cantos v. People, G.R. No. 184908, July 3, 2013, 700 SCRA 535, 545-546.
[28] 122 Phil. 293, 296 (1965).
[29] 511 Phil. 682 (2005).
[30] G.R. No. 154042, April 11, 2011, 647 SCRA 446, 459 citing Cabello v. Sandiganbayan, G.R. No. 93885, May 14, 1991, 197 SCRA 94.
[31] See also discussion in Zafra v. People, G.R. No. 176317, July 23, 2014.
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