Today is Monday, November 28, 2022

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 191752 June 10, 2013

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
JOSE ARMANDO CERVANTES CACHUELA and BENJAMIN JULIAN CRUZ IBANEZ, Accused.
BENJAMIN JULIAN CRUZ IBANEZ, Accused-Appellant.

DECISION

BRION, J.:

We decide the appeal filed by appellants Jose Armando Cervantes Cachuela and Benjamin Julian Cruz Ibanez assai
August 7, 2009 decision1 of the Court of Appeals (CA) in CA-G.R. CR.-HC No. 03474. The CA decision affirmed with
the July 14, 2008 decision2 of the Regional Trial Court (RTC), Branch 196, Parañaque City, finding the appellants gui
reasonable doubt of the special complex crime of robbery with homicide, and sentencing them to suffer the penalty o
perpetua.

The prosecution’s evidence revealed that on July 23, 2004, Ibañez went to Weapons System Corporation (WSC) on
car, and told Henessy Auron, WSC’s Secretary and Sales Representative, that he was the one who bought a gun bar
company’s gun show in SM Megamall. Ibañez inquired from Henessy about the schedule and the rates of WSC’s firin
and the amount of the membership fee of its gun club. He also asked the days when there are many people in the firi
and whether Henessy was WSC’s only female employee.3

At around 9:00 a.m. of July 26, 2004, Henessy arrived at WSC and rang the doorbell, but no one opened the door. Sh
the back of the office where the firing range was located, and called Zaldy Gabao, another employee of WSC. Zaldy a
from inside the store but Henessy did not understand what he said. Henessy returned to the front door and called aga
replied that he could not open the door because his hands were tied. Henessy called Raymundo Sian, the company’s
manager, and informed him that Zaldy’s hands had been tied. After one hour, the police arrived; they opened the gate
back using acetylene. When Henessy and the police entered the premises, they saw that Zaldy had been handcuffed
vault. Zaldy informed the police that the company’s gunsmith, Rex Dorimon, was inside the firing range. The police en
firing range, and saw the lifeless body of Rex.4 Dr. Voltaire Nulud conducted an autopsy on the body of Rex, and foun
victim suffered several gunshot wounds on the head, thorax and abdomen, caused by a .45 pistol. 5

The National Bureau of Investigation (NBI) received an information from an asset that the group of Cachuela was inv
robbery of WSC and in the killing of one of its employees; and that Cachuela had been looking for prospective buyers
The NBI formed an entrapment team and proceeded to Bacoor, Cavite to execute the operation. Upon their arrival, M
Nabilgas approached them and told them that he had been sent by Cachuela and Ibañez to look for buyers of firearm
police introduced themselves and told Nabilgas that they were conducting an entrapment operation against the suspe
robbery at WSC. Nabilgas surrendered to the police, and gave the names of the other persons involved in the crime. 6

Thereafter, the asset contacted Cachuela and informed him that Nabilgas had already talked to the buyers, and that t
like to see the firearms being sold. Cachuela set up a meeting with the buyers at a gasoline station in Naic, Cavite. N
Investigator Allan Lino, Supervising Agent Jerry Abiera and the asset went to the agreed place. Cachuela came and t
them, and brought them inside his house where Cachuela showed them several firearms. When the agents inquired f
Cachuela whether the firearms had legal documentation, the latter sensed that the meeting was a set-up. The NBI ag
arrested Cachuela before he could make any move. The agents recovered four (4) firearms 7 from Cachuela’s house,
a .9 mm Bernardelli with serial number T1102-03E000151.8

The NBI conducted a follow-up operation on Ibañez whom the asset also contacted. Ibañez directed the asset to brin
prospective buyers to his residence in Imus, Cavite. The NBI agents went to Imus and there met Ibañez whom they s
Nissan California car bearing plate no. PMN 645. Lino, Abiera and the asset entered the car, and asked Ibañez wher
firearms were. Ibañez brought out two (2) firearms, and showed them to the agents. The agents asked whether the g
legal documentation; they then arrested Ibañez when they sensed that he was already becoming suspicious. The age
recovered two guns from Ibañez, viz.: a .45 Glock 30 with serial number FML 245 and a .45 Llama with serial numbe

At the NBI Main Office, Zaldy pointed to the appellants, during a police line-up, as the persons responsible for the rob
WSC and for the killing of Rex.10 Nabilgas also executed a handwritten confession implicating the appellants and Zald
crime.11

The prosecution filed an Information12 for robbery with homicide before the RTC against the appellants, Nabilgas and
docketed as Criminal Case No. 04-0943. The accused all pleaded not guilty on arraignment. 13 Trial on the merits ensu
thereafter. During trial, Zaldy died.14

In its decision dated July 14, 2008, the RTC found the appellants guilty beyond reasonable doubt of the special comp
robbery with homicide, and sentenced them to suffer the penalty of reclusion perpetua. It also ordered them to pay, jo
severally, the heirs of Rex ₱50,000.00 as civil indemnity and ₱50,000.00 as moral damages. The trial court likewise o
appellants to pay Hector C. Rodriguez, Jr.15 ₱1,563,300.00, representing the value of the firearms and ammunitions s
WSC. Excepted from the conviction was Nabilgas whom the RTC acquitted on ground of reasonable doubt.

The appellants filed an appeal with the CA, docketed as CA-G.R. CR.-HC No. 03474. In its decision of August 7, 200
affirmed the RTC decision with the following modifications: (a) the appellants were ordered to pay Arms Depot Philipp
the amount of ₱1,093,947.50, representing the value of the stolen firearms and ammunitions from WSC, with interest
of 6% per annum from the date of the decision until fully paid; and (b) they are likewise ordered to pay, jointly and sev
heirs of Rex ₱45,000.00 as actual damages with interest at the rate of 6% per annum from the date of the decision un
paid.

The CA held that the following pieces of circumstantial evidence showed that the appellants robbed WSC and killed R
the course of this robbery: (1) Ibañez visited WSC two days before the robbery and asked several questions from He
robbery occurred at WSC where 53 firearms and several ammunitions worth ₱1,563,300.00 had been stolen; (3) amo
firearms stolen were a .9 mm Bernardelli with serial number T1102-03E000151 and a .45 Glock 30 with serial numbe
(4) Rex, a gunsmith working in WSC, was found dead at the firing range; (5) Rex sustained gunshot wounds on differ
his body; (6) Cachuela and Ibañez were caught trying to sell the .9 mm Bernardelli, with serial number T1102-03E000
the .45 Glock 30, with serial number FML 245, respectively, in separate entrapment operations; and (7) Cachuela and
were unable to explain how they came into possession of the stolen firearms.

The CA ruled that the totality of these circumstances point to the appellants as the perpetrators of the special comple
robbery with homicide. It disregarded the appellants’ defenses of alibi, denial and frame-up for being self-serving. The
likewise found unmeritorious the appellants’ argument that the firearms confiscated from them were inadmissible in e
pointing out that the seizures were the result of lawful entrapment operations. It further held that the appellants failed
any ill or improper motive against the police officers who conducted the entrapment operations.

Our Ruling

In this final review, we deny the appeal, and resolve to increase the amount for restitution by the appellants to Arms D
Philippines, Inc. from ₱1,093,947.50 to ₱1,481,000.00.

"A special complex crime of robbery with homicide takes place when a homicide is committed either by reason, or on
occasion, of the robbery. To sustain a conviction for robbery with homicide, the prosecution must prove the following
(1) the taking of personal property belonging to another; (2) with intent to gain; (3) with the use of violence or intimida
a person; and (4) on the occasion or by reason of the robbery, the crime of homicide, as used in its generic sense, wa
committed. A conviction requires certitude that the robbery is the main purpose, and objective of the malefactor and t
merely incidental to the robbery. The intent to rob must precede the taking of human life but the killing may occur befo
or after the robbery."16

Admissibility of the out-of-court

identification and the extrajudicial
confession

Lino testified that Zaldy identified the appellants as the persons involved in the robbery of WSC and in the killing of R
police line-up held at the NBI Main Office on Taft Avenue, Manila. We note that Zaldy did not testify in court since he
to the National Center for Mental Health, and subsequently died there during the trial. For this reason, we examine w
scrutiny Lino’s testimony regarding Zaldy’s alleged out-of-court identification.

People v. Algarme17 explains the procedure for out-of-court identification and the test to determine its admissibility, as

Out-of-court identification is conducted by the police in various ways. It is done thru show-ups where the suspect alon
face-to-face with the witness for identification. It is done thru mug shots where photographs are shown to the witness
the suspect. It is also done thru line-ups where a witness identifies the suspect from a group of persons lined up for th
x x x In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the tot
circumstances test where they consider the following factors, viz.: (1) the witness' opportunity to view the criminal at t
the crime; (2) the witness' degree of attention at that time; (3) the accuracy of any prior description, given by the witne
level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the id
and, (6) the suggestiveness of the identification procedure. [italics and emphasis supplied]

In the present case, Lino merely stated that Zaldy, during a police line-up, identified the appellants as the persons inv
robbery of WSC and in the killing of Rex. Lino did not state when the line-up took place; how this line-up had been co
who were the persons in the line-up with the appellants (if there were indeed other persons included in the line-up); a
the line-up was confined to persons of the same height and built as the appellants. Lino likewise did not indicate who
accompanied Zaldy before and during the line-up, and whether there had been the possibility of prior or contemporan
improper insinuations on Zaldy regarding the appearance of the appellants.

To our mind, Lino’s failure to state relevant details surrounding the police line-up is a glaring omission that renders un
Zaldy’s out-ofcourt identification. No way exists for the courts to evaluate the factors used in determining the admissib
reliability of out-of-court identifications, such as the level of certainty demonstrated by the witness at the identification
of time between the crime and the identification; and the suggestiveness of the identification procedure. The absence
independent in-court identification by Zaldy additionally justifies our strict treatment and assessment of Lino’s testimo

The records also bear out that Nabilgas executed an extrajudicial confession18 at the NBI Main Office, where he impli
appellants and Zaldy in the crime charged. During trial, he repudiated this confession, and claimed that he had been
the NBI agents, and that he was forced to copy a previously prepared statement.

After a careful examination of the evidence on hand, we hold that Nabilgas’ extrajudicial confession is inadmissible in
The Court has consistently held that an extrajudicial confession, to be admissible, must satisfy the following requirem
the confession must be voluntary; (2) it must be made with the assistance of a competent and independent counsel, p
the confessant's choice; (3) it must be express; and (4) it must be in writing." 19

We point out that Nabilgas was already under custodial investigation by the authorities when he executed the alleged
confession. "A custodial investigation is understood x x x as x x x any questioning initiated by law enforcement author
person is taken into custody or otherwise deprived of his freedom of action in any significant manner. x x x It begins w
is no longer a general inquiry into an unsolved crime and the investigation has started to focus on a particular person
suspect, i.e., when the police investigator starts interrogating or exacting a confession from the suspect in connection
alleged offense.20

In People v. Rapeza,21 we explained that the lawyer called to be present during custodial investigations should, as far
reasonably possible, be the choice of the individual undergoing questioning. If the lawyer is furnished by the police fo
accused, it is important that the lawyer should be competent, independent and prepared to fully safeguard the constit
rights of the accused, as distinguished from one who would merely be giving a routine, peremptory and meaningless
individual's constitutional rights.

After a close reading of the records, we rule that Nabilgas’ confession was not made with the assistance of a compet
independent counsel. The services of Atty. Melita Go, the lawyer who acted in Nabilgas’ behalf, were provided by the
agency investigating Nabilgas – the NBI itself; she was assigned the task despite Nabilgas’ open declaration to the a
investigators that he already had a lawyer in the person of Atty. Donardo Paglinawan. Atty. Paglinawan confirmed thi
he stated that he was already representing Nabilgas at the time his client made the alleged confession. Nabilgas also
that Atty. Go did not disclose that she was a lawyer when she was called to assist him; she merely represented herse
mere witness to the confession. There was also nothing in the records to show that Atty. Go ascertained whether Nab
confession was made voluntarily, and whether he fully understood the nature and the consequence of his extrajudicia
and its impact on his constitutional rights.

To be sure, this is not the kind of assistance required of lawyers in a custodial investigation. "An ‘effective and vigilan
necessarily and logically requires that the lawyer be present and be able to advise and assist his client from the time
confessant answers the first question asked by the investigating officer until the signing of the extrajudicial confession
addition, the extrajudicial confession of Nabilgas was not corroborated by a witness who was present at the time the
confession was made. We note in this regard that the prosecution did not present Atty. Go at the witness stand despi
made during the early stages of the trial that she would be presented.

At any rate, Nabilgas’ extrajudicial confession is inadmissible in evidence against the appellants in view of the res inte
rule. This rule provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of another.
Consequently, an extrajudicial confession is binding only on the confessant and is not admissible against his or her c
because it is considered as hearsay against them.

An exception to the res inter alios acta rule is an admission made by a conspirator under Section 30, Rule 130 of the
Court. This provision states that the act or declaration of a conspirator relating to the conspiracy, and during its existe
be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or dec
Thus, in order that the admission of a conspirator may be received against his or her co-conspirators, it is necessary
conspiracy be first proved by evidence other than the admission itself; (b) the admission relates to the common objec
has been made while the declarant was engaged in carrying out the conspiracy. 23

This exception, however, does not apply in the present case since there was no other piece of evidence presented, a
the extrajudicial confession, to prove that Nabilgas conspired with the appellants in committing the crime charged. Co
cannot be presumed and must be shown as distinctly and conclusively as the crime itself. Nabilgas, in fact, was acqu
trial court due to insufficiency of evidence to prove his participation in the crime.

Sufficiency of the proven

circumstantial evidence

In view of the inadmissibility of Zaldy’s out-of-court identification and Nabilgas’ extrajudicial confession, the prosecutio
rests purely on circumstantial evidence. Conviction can be secured "on the basis of circumstantial evidence if the esta
circumstances constitute an unbroken chain leading to a fair and reasonable conclusion proving that the accused is t
the crime to the exclusion of all others."24 There can be conviction if the prosecution can establish the appellants’ part
the crime through credible and sufficient circumstantial evidence that leads to the inescapable conclusion that the acc
none other, committed the imputed crime.25

"Circumstantial evidence consists of proof of collateral facts and circumstances from which the main fact in issue may
based on reason and common experience. Under Section 4, Rule 133 of the Revised Rules of Court, circumstantial e
sufficient for conviction if the following requisites concur: (a) there is more than one circumstance; (b) the facts from w
inferences are derived have been established; and (c) the combination of all the circumstances unavoidably leads to
guilt beyond reasonable doubt. These circumstances must be consistent with one another, and the only rational hypo
can be drawn therefrom must be the guilt of the accused."26

In our view, no doubt exists, based on the appellants' actions, that their primary objective was to rob WSC, and that th
Rex was done on occasion, or by reason, of the robbery: first, Ibañez went to WSC on July 23, 2004, and inquired fro
about the schedule and the rates of the firing range, the amount of the membership fee of the company’s gun club, th
when there are many people in the firing range, and whether she was the only female employee of the company; sec
Henessy arrived at WSC at 9:00 a.m. on July 26, 2004, Zaldy informed her that he cannot open the front door becaus
were tied; third, Henessy called the company’s operations manager and informed him that Zaldy had been tied; fourth
saw Zaldy handcuffed to the vault when they opened the back gate; fifth, the police saw the lifeless body of Rex lying
with several gunshot wounds when they entered the firing range; sixth, the operations manager discovered that 53 gu
several ammunitions had been missing from the gun store, including a .9 mm Bernardelli with serial number T1102-0
and a .45 Glock 30 with serial number FML 245; seventh, the NBI agents caught Cachuela trying to sell the .9 mm Be
with serial number T1102-03E000151 in an entrapment operation in Cavite; eighth, the NBI agents caught Ibañez try
the .45 Glock 30 with serial number FML 245 and a .45 Llama with serial number 04490Z in a follow-up entrapment o
Cavite; ninth, Cachuela and Ibañez were unable to explain how they came into possession of the stolen firearms; ten
Inspector Armin Austria, the PNP Forensic Firearm Examiner, found that the 98 pieces of .45 fired cartridge cases fou
crime scene were fired from the .45 Llama with serial number 04490Z recovered from Ibañez; 27 and finally, Dr. Nulud
an autopsy on the body of Rex, and found that the victim suffered several gunshot wounds on the head, thorax, and a
caused by a .45 pistol.

From these established circumstances, the overriding intention of the appellants cannot but be to rob WSC; the killing
merely incidental to the robbery. "Intent to rob is an internal act, but may be inferred from proof of violent unlawful tak
personal property."28 Rex was killed to facilitate the robbery; he was also the person who would have been a witness
In People v. De Leon,29 we held that "homicide is said to have been committed by reason or on the occasion of robbe
instance, it was committed (a) to facilitate the robbery or the escape of the culprit; (b) to preserve the possession by t
the loot; (c) to prevent discovery of the commission of the robbery; or, (d) to eliminate witnesses in the commission of

In this regard, we cannot overlook the fact that another WSC employee – Zaldy – was not killed, but merely tied to the
Court cannot second-guess on what could have been behind the malefactors’ decision to spare Zaldy’s life, but we no
Zaldy became one of the accused in this case after the Office of the City Prosecutor found probable cause to indict h
crime, as the robbery could have been the result of an "inside job." Unfortunately, Zaldy was unable to testify during t
the RTC ordered that he be brought to the National Center for Mental Health for treatment. Accordingly, Nabilgas’ ext
confession (which we ruled to be inadmissible) was the only evidence linking Zaldy to the crime. For lack of evidence
make any definite conclusion and can only speculate on Zaldy’s involvement in the crime charged.

We find it worthy to stress that the appellants failed to overcome the disputable presumption that "a person found in p
of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act." 30 To recall, Ibañez wa
two days before the robbery, asking questions to the company’s secretary. Several days after the robbery, the appell
caught trying to sell firearms that were reported stolen from WSC in separate entrapment operations; they could not s
explain how and why these guns came to their respective possession. The appellants likewise did not impute ill motiv
part of the arresting officers that would impel the latter to fabricate evidence against them. These factors lead to no o
conclusion than that the appellants, to the exclusion of others, had robbed WSC.

To our mind, the fact that the cartridge bullet shells found at the firing range (where the lifeless body of Rex had been
discovered) matched with one of the guns recovered from Ibañez during the entrapment operation clinches the case
appellants insofar as establishing the nexus between the robbery and the victim’s killing. Notably, the gunshot wound
by Rex also came from the same caliber of gun31 recovered from Ibañez. In the final analysis, the prosecution sufficie
established the direct and intimate connection between the robbery and the killing, and that the death of Rex had bee
committed by reason or on the occasion of the robbery. When homicide is committed by reason or on the occasion o
all those who took part as principals in the robbery would also be held liable as principals of the single and indivisible
robbery with homicide, although they did not actually take part in the killing, unless it clearly appears that they endeav
prevent the same.32

The penalty and the awarded civil

indemnities

Robbery with homicide is a single indivisible crime punishable with reclusion perpetua to death under paragraph 1, A
the Revised Penal Code, as amended. We find that the trial and appellate courts correctly sentenced the appellants t
penalty of reclusion perpetua only in the absence of any aggravating circumstance that attended the commission of th

We affirm the award of ₱50,000.00 civil indemnity and ₱50,000.00 moral damages to the heirs of Rex, as these awar
to prevailing jurisprudence on robbery with homicide when the penalty imposed is only reclusion perpetua. 33 We also
award of ₱45,000.00 as actual damages, as the prosecution successfully proved this amount through a receipt.

The CA ordered the appellants to restitute the amount of ₱1,093,947.50, representing of the value of the stolen firear
ammunitions. We, however, increase this amount to the total amount of ₱1,481,000.00 as !his is the value of the stole
proven by the evidence on record.34

WHEREFORE, in light of all the foregoing, the decision of the Court of Appeals dated August 7, 2009 in CA-G.R. CR
03474 is AFFIRMED with the MODIFICATION that the amount to be restituted by the appellants to Arms Depot Philip
be increased from ₱1,093,947.50 to ₱1,481,000.00.

SO ORDERED.

ARTURO D. BRION*
Associate Justice

WE CONCUR:
 MARIANO C. DEL CASTILLO
Associate Justice

JOSE PORTUGAL PEREZ ESTELA M. PERLAS-BERNABE

Associate Justice Associate Justice
MARVIC MARIO VICTOR F. LEONEN**
Associate Justice

ATTESTATION

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

ARTURO D. BRION
Associate Justice
Acting Chairperson, Second Division

CERTIFICATION

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

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

* In lieu of Associate Justice Antonio T. Carpio per Special Order No. 1460 dated May 29, 2013.

** Designated as Acting Member in lieu of Associate Justice Antonio T. Carpio per Special Order No.
May 29, 2013.

1
Penned by Associate Justice Celia C. Librea-Leagogo, and concurred in by Associate Justices Juan
Enriquez, Jr. and Antonio L. Villamor; rollo, pp. 2-44.

2
CA rollo, pp. 14-35.

3
TSN, June 9, 2005, pp. 19-23.

4
Id. at 7-12.

5
Records, p. 546.

6
TSN, July 7, 2005, pp. 8-15.

7
The other firearms recovered from Cachuela were a .22 Cooley Model 600 with serial number 9196;
Federal Caliber Pistol Receiver with serial number 502173; and a .45 Llama Pistol with serial number
15949-96.

8
TSN, July 7, 2005, pp. 15-18.

9
Id. at 24-27.

10
Id. at 29-30.

11
Id. at 31.

12
Records, p. 2.

13
Id. at 166-169.

14
Id. at 620-621.

15
The Branch Manager of Arms Depot Philippines, Inc.

16
People v. Algarme, G.R. No. 175978, February 12, 2009, 578 SCRA 601, 621; citations omitted.

17
Id. at 617-618, citing People v. Teehankee, Jr., G.R. Nos. 111206-08, October 6, 1995, 249 SCRA 5

18
Records, p. 21.

19
See People v. Bacor, 366 Phil. 197, 212 (1999).

20
See People v. Morial, 415 Phil. 310, 329 (2001); citation omitted, italics supplied.

21
G.R. No. 169431, April 4, 2007, 520 SCRA 596, 623-624, citing People v. Deniega, 321 Phil. 1028,
(1995); italics supplied.

22
See People v. Tomaquin, 478 Phil. 885, 901 (2004).

23
See People v. Bokingo, G.R. No. 187536, August 10, 2011, 655 SCRA 313, 332-333.

24
People v. Umayam, 431 Phil. 23, 32 (2002).

25
See People v. Biglete, G.R. No. 182920, June 18, 2012, 673 SCRA 546, 554.

26
See People v. Romero, G.R. No. 181041, February 23, 2011, 644 SCRA 210, 214; citation omitted.

27
Per Firearms Identification Report No. FAIS-080-A-2004, no conclusion could be rendered as to wh
seven other .45 fired bullets submitted for examination had been fired from the Llama .45 pistol with s
number 04490Z.

28
See People v. De Leon, G.R. No. 179943, June 26, 2009, 591 SCRA 178, 193, citing People v. De
 Phil. 405, 407 (2004).

29
Id. at 194.

30
Rules of Court, Rule 131, Section 3(j).

31
The records do not indicate the gun’s serial number.

32
See People v. Ebet, G.R. No. 181635, November 15, 2010, 634 SCRA 689, 705-706.

33
See People v. Uy. G.R. No. 174660, May 30, 2011, 649 SCRA 236, 260.

34
Records, pp. 71-73.

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