SECOND DIVISION
[G.R. No. 225695. March 21, 2018.]
IRENEO CAHULOGAN , petitioner, vs. PEOPLE OF THE PHILIPPINES ,
respondent.
DECISION
PERLAS-BERNABE , J : p
Before the Court is a petition for review on certiorari 1 led by petitioner Ireneo
Cahulogan (petitioner) assailing the Decision 2 dated November 6, 2015 and the
Resolution 3 dated June 8, 2016 of the Court of Appeals (CA) in CA-G.R. CR No. 01126-
MIN, which a rmed the Judgment 4 dated October 4, 2013 of the Regional Trial Court
of Cagayan De Oro City, Misamis Oriental, Branch 41 (RTC) in Crim. Case No. 2011-507,
convicting petitioner of the crime of Fencing, de ned and penalized under Presidential
Decree No. (PD) 1612, otherwise known as the "Anti-Fencing Law of 1979." 5 HTcADC
The Facts
On April 18, 2011, an Information 6 was led before the RTC charging petitioner
with the crime of Fencing, the accusatory portion of which reads:
That on or about January 14, 2011[,] at about 4:00 o'clock [sic] in the
afternoon, at Bugo, Cagayan de Oro City, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, without the knowledge and
consent of the owner thereof, did then and there wilfully, unlawfully and
feloniously buy, receive, possess, keep, acquire, conceal, sell or dispose of, or in
any manner deal, Two Hundred Ten (210) cases of Coca Cola products worth
Php52,476.00 owned by and belonging to the offended party Johnson Tan
which accused know, or should be known to him, to have been derived from the
proceeds of the crime of Theft, to the damage and prejudice of said owner in the
aforesaid sum of Php52,476.00.
Contrary to Presidential Decree No. 1612, otherwise known as Anti-
Fencing Law of 1979. 7
The prosecution alleged that private complainant Johnson Tan (Tan), a
businessman engaged in transporting Coca-Cola products, instructed his truck driver
and helper, Braulio Lopez (Lopez) and Loreto Lariosa (Lariosa), to deliver 210 cases of
Coca-Cola products (subject items) worth P52,476.00 to Demins Store. The next day,
Tan discovered that contrary to his instructions, Lopez and Lariosa delivered the
subject items to petitioner's store. Tan then went to petitioner and informed him that
the delivery to his store was a mistake and that he was pulling out the subject items.
However, petitioner refused, claiming that he bought the same from Lariosa for
P50,000.00, but could not present any receipt evidencing such transaction. Tan insisted
that he had the right to pull out the subject items as Lariosa had no authority to sell the
same to petitioner, but the latter was adamant in retaining such items. Fearing that his
contract with Coca-Cola will be terminated as a result of the wrongful delivery, and in
CD Technologies Asia, Inc. 2018 cdasiaonline.com
order to minimize losses, Tan negotiated with petitioner to instead deliver to him
P20,000.00 worth of empty bottles with cases, as evidenced by their Agreement 8
dated January 18, 2011. Nonetheless, Tan felt aggrieved over the foregoing events,
thus, prompting him to secure an authorization to le cases from Coca-Cola and charge
petitioner with the crime of Fencing. He also claimed to have charged Lariosa with the
crime of Theft but he had no update as to the status thereof. 9
Upon arraignment, petitioner pleaded not guilty, 1 0 but chose not to present any
evidence in his defense. Rather, he merely submitted his memorandum, 1 1 maintaining
that the prosecution failed to prove his guilt beyond reasonable doubt. 1 2
The RTC Ruling
In a Judgment 1 3 dated October 4, 2013, the RTC found petitioner guilty beyond
reasonable doubt of the crime charged, and accordingly, sentenced him to suffer the
penalty of imprisonment for the indeterminate period of ten (10) years and one (1) day
of prision mayor, as minimum, to fteen (15) years of reclusion temporal, as maximum.
14
The RTC found that the prosecution had successfully established the presence of
all the elements of the crime of Fencing, considering that Lariosa stole the subject
items from his employer, Tan, and that petitioner was found to be in possession of the
same. The RTC noted that under the circumstances of the case, petitioner would have
been forewarned that the subject items came from an illegal source since Lariosa: (a)
sold to him the subject items at a discount and without any corresponding delivery and
o cial receipts; and (b) did not demand that such items be replaced by empty bottles,
a common practice in purchases of soft drink products. 1 5
Aggrieved, petitioner appealed 1 6 to the CA.
The CA Ruling
In a Decision 1 7 dated November 6, 2015, the CA a rmed petitioner's conviction.
1 8 It held that Lariosa's act of selling the subject items to petitioner without the
authority and consent from Tan clearly constituted theft. As such, petitioner's
possession of the stolen items constituted prima facie evidence of Fencing — a
presumption which he failed to rebut. 1 9
Undaunted, petitioner moved for reconsideration 2 0 which was, however, denied
in a Resolution 2 1 dated June 8, 2016; hence, this petition.
The Issue before the Court
The issue for the Court's resolution is whether or not the CA correctly upheld
petitioner's conviction for the crime of Fencing.
The Court's Ruling
The petition is without merit.
"Time and again, it has been held that an appeal in criminal cases opens the entire
CD Technologies Asia, Inc. 2018 cdasiaonline.com
case for review, and it is the duty of the reviewing tribunal to correct, cite, and
appreciate errors in the appealed judgment whether they are assigned or unassigned.
The appeal confers the appellate court full jurisdiction over the case and renders such
court competent to examine records, revise the judgment appealed from, increase they
penalty, and cite the proper provision of the penal law." 2 2
Guided by this consideration, the Court nds no reason to overturn petitioner's
conviction for the crime of Fencing.
Section 2 of PD 1612 de nes Fencing as "the act of any person who, with intent
to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell
or dispose of, or shall buy and sell, or in any other manner deal in any article, item,
object or anything of value which he knows, or should be known to him, to have been
derived from the proceeds of the crime of robbery or theft." 2 3 The same Section also
states that a Fence "includes any person, rm, association, corporation or partnership
or other organization who/which commits the act of fencing." 2 4 aScITE
The essential elements of the crime of fencing are as follows: (a) a crime of
robbery or theft has been committed; (b) the accused, who is not a principal or an
accomplice in the commission of the crime of robbery or theft, buys, receives,
possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any
manner deals in any article, item, object or anything of value, which has been derived
from the proceeds of the crime of robbery or theft; (c) the accused knew or should
have known that the said article, item, object or anything of value has been derived from
the proceeds of the crime of robbery or theft; and (d) there is, on the part of one
accused, intent to gain for oneself or for another. 2 5 Notably, Fencing is a malum
prohibitum, and PD 1612 creates a prima facie presumption of Fencing from evidence
of possession by the accused of any good, article, item, object or anything of value,
which has been the subject of robbery or theft; and prescribes a higher penalty based
on the value of the property. 2 6
In this case, the courts a quo correctly found that the prosecution was able to
establish beyond reasonable doubt all the elements of the crime of Fencing, as it was
shown that: (a) Lariosa sold to petitioner the subject items without authority and
consent from his employer, Tan, for his own personal gain, and abusing the trust and
con dence reposed upon him as a truck helper; 2 7 (b) petitioner bought the subject
items from Lariosa and was in possession of the same; (c) under the circumstances,
petitioner should have been forewarned that the subject items came from an illegal
source, as his transaction with Lariosa did not have any accompanying delivery and
o cial receipts, and that the latter did not demand that such items be replaced with
empty bottles, contrary to common practice among dealers of soft drinks; 2 8 and (d)
petitioner's intent to gain was made evident by the fact that he bought the subject
items for just P50,000.00, lower than their value in the amount of P52,476.00. "[T]he
Court nds no reason to deviate from the factual ndings of the trial court, as a rmed
by the CA, as there is no indication that it overlooked, misunderstood or misapplied the
surrounding facts and circumstances of the case. In fact, the trial court was in the best
position to assess and determine the credibility of the witnesses presented by both
parties, and hence, due deference should be accorded to the same." 2 9
Anent the proper penalty to be imposed on petitioner, pertinent portions of
Section 3 of PD 1612 read:
Section 3. Penalties. — Any person guilty of fencing shall be
punished as hereunder indicated:
CD Technologies Asia, Inc. 2018 cdasiaonline.com
a) The penalty of prision mayor, if the value of the property involved
is more than 12,000 pesos but not exceeding 22,000 pesos; if the value of such
property exceeds the latter sum, the penalty provided in this paragraph shall be
imposed in its maximum period, adding one year for each additional 10,000
pesos; but the total penalty which may be imposed shall not exceed twenty
years. In such cases, the penalty shall be termed reclusion temporal and the
accessory penalty pertaining thereto provided in the Revised Penal Code shall
also be imposed.
xxx xxx xxx
Notably, while the crime of Fencing is de ned and penalized by a special penal
law, the penalty provided therein is taken from the nomenclature in the Revised Penal
Code (RPC). In Peralta v. People , 3 0 the Court discussed the proper treatment of
penalties found in special penal laws vis-à-vis Act No. 4103, 3 1 otherwise known as the
"Indeterminate Sentence Law," viz.:
Meanwhile, Sec. 1 of Act No. 4103, otherwise known as the Indeterminate
Sentence Law (ISL), provides that if the offense is ostensibly punished under a
special law, the minimum and maximum prison term of the indeterminate
sentence shall not be beyond what the special law prescribed. Be that as it may,
the Court had clari ed in the landmark ruling of People v. Simon that the
situation is different where although the offense is de ned in a special law, the
penalty therefor is taken from the technical nomenclature in the RPC. Under
such circumstance, the legal effects under the system of penalties native to the
Code would also necessarily apply to the special law. 3 2
Otherwise stated, if the special penal law adopts the nomenclature of the
penalties under the RPC, the ascertainment of the indeterminate sentence will be based
on the rules applied for those crimes punishable under the RPC. 3 3
Applying the foregoing and considering that there are neither mitigating nor
aggravating circumstances present in this case, the Court nds it proper to sentence
petitioner to suffer the penalty of imprisonment for an indeterminate period of four (4)
years, two (2) months, and one (1) day of prision correccional, as minimum, to fteen
(15) years of reclusion temporal, as maximum.
At this point, the Court notes that as may be gleaned from its whereas clauses,
PD 1612 was enacted in order to provide harsher penalties to those who would acquire
properties which are proceeds of the crimes of Robbery or Theft, who prior to the
enactment of said law, were punished merely as accessories after the fact of the said
crimes. 3 4 This rationale was echoed in Dizon-Pamintuan v. People 3 5 where the Court
held that while a Fence may be prosecuted either as an accessory of Robbery/Theft or
a principal for Fencing, there is a preference for the prosecution of the latter as it
provides for harsher penalties:
Before P.D. No. 1612, a fence could only be prosecuted for and held
liable as an accessory , as the term is de ned in Article 19 of the Revised Penal
Code. The penalty applicable to an accessory is obviously light under the rules
prescribed in Articles 53, 55, and 57 of the Revised Penal Code, subject to the
quali cation set forth in Article 60 thereof. Noting, however, the reports from law
enforcement agencies that "there is rampant robbery and thievery of
government and private properties" and that "such robbery and thievery have
become pro table on the part of the lawless elements because of the existence
of ready buyers, commonly known as fence, of stolen properties," P.D. No. 1612
was enacted to "impose heavy penalties on persons who pro t by the effects of
CD Technologies Asia, Inc. 2018 cdasiaonline.com
the crimes of robbery and theft." Evidently, the accessory in the crimes of
robbery and theft could be prosecuted as such under the Revised Penal Code or
under P.D. No. 1612. However, in the latter case, he ceases to be a mere
accessory but becomes a principal in the crime of fencing. Elsewise stated, the
crimes of robbery and theft, on the one hand, and fencing, on the other, are
separate and distinct offenses. The state may thus choose to prosecute him
either under the Revised Penal Code or P.D. No. 1612, although the preference
for the latter would seem inevitable considering that fencing is a malum
prohibitum, and P.D. No. 1612 creates a presumption of fencing and prescribes
a higher penalty based on the value of the property. 3 6
While PD 1612 penalizes those who acquire properties which are proceeds of
Robbery or Theft, its prescribed penalties are similar to the latter crime in that they are
largely dependent on the value of the said properties. In fact, a reading of Section 3 of
PD 1612 and Article 309 of the RPC (which provides for the prescribed penalties for the
crime of Theft) reveals that both provisions use the same graduations of property value
to determine the prescribed penalty; in particular, if the value: (a) exceeds P22,000.00,
with additional penalties for each additional P10,000.00; (b) is more than P12,000.00
but not exceeding P22,000.00; (c) is more than P6,000.00 but not exceeding
P12,000.00; (d) is more than P200.00 but not exceeding P6,000.00; (e) is more than
P50.00 but not exceeding P200.00; and (f) does not exceed P5.00. However, with the
recent enactment of Republic Act No. 10951, 3 7 which adjusted the values of the
property and damage on which various penalties are based, taking into consideration
the present value of money, as opposed to its archaic values when the RPC was
enacted in 1932, 3 8 the graduation of values in Article 309 was substantially amended,
without any concomitant adjustment for PD 1612. This development would then result
in instances where a Fence, which is theoretically a mere accessory to the crime of
Robbery/Theft, will be punished more severely than the principal of such latter crimes.
This incongruence in penalties therefore, impels an adjustment of penalties. HEITAD
However, while it may be the most expeditious approach, a short cut by judicial
at is a dangerous proposition, lest the Court dare trespass on prohibited judicial
legislation. 3 9 As the Court remains mindful of the fact that the determination of
penalties is a policy matter that belongs to the legislative branch of the government, it
nds it prudent to instead, furnish both Houses of Congress, as well as the President of
the Republic of the Philippines, through the Department of Justice, pursuant to Article 5
4 0 of the RPC, copies of this ruling in order to alert them on the aforestated
incongruence of penalties, all with the hope of arriving at the proper solution to this
predicament.
WHEREFORE , the petition is DENIED . The Decision dated November 6, 2015
and the Resolution dated June 8, 2016 of the Court of Appeals (CA) in CA-G.R. CR No.
01126-MIN nding petitioner Ireneo Cahulogan GUILTY beyond reasonable doubt of
the crime of Fencing de ned and penalized under Presidential Decree No. 1612,
otherwise known as the "Anti-Fencing Law," are AFFIRMED with MODIFICATION ,
sentencing him to suffer the penalty of imprisonment for the indeterminate period of
four (4) years, two (2) months, and one (1) day of prision correccional, as minimum, to
fifteen (15) years of reclusion temporal, as maximum.
Pursuant to Article 5 of the Revised Penal Code, let a copy of this Decision be
furnished the President of the Republic of the Philippines, through the Department of
Justice, the President of the Senate, and the Speaker of the House of Representatives.
SO ORDERED.
CD Technologies Asia, Inc. 2018 cdasiaonline.com
Carpio, * Peralta, Caguioa and Reyes, Jr., JJ., concur.
Footnotes
* Acting Chief Justice per Special Order No. 2539 dated February 28, 2018.
1. Rollo, pp. 3-12.
2. Id. at 16-30. Penned by Associate Justice Rafael Antonio M. Santos with Associate Justices
Edgardo A. Camello and Henri Jean Paul B. Inting, concurring.
3. Id. at 39-41. Penned by Associate Justice Rafael Antonio M. Santos with Associate Justices
Edgardo A. Camello and Edgardo T. Lloren, concurring.
4. CA rollo, pp. 28-34. Penned by Presiding Judge Jeoffre W. Acebido.
5. (March 2, 1979).
6. Records, p. 2.
7. Id.
8. Id. at 17.
9. See rollo, pp. 18-19 and CA rollo, pp. 29-30.
10. Rollo, p. 17 and CA rollo, p. 29.
11. See Memorandum for the Accused dated June 18, 2013; records, pp. 170-171.
12. See rollo, p. 19 and CA rollo, p. 30.
13. CA rollo, pp. 28-34.
14. See id. at 34.
15. See id. at 30-33.
16. See Notice of Appeal dated October 17, 2013; records, pp. 211-212.
17. Rollo, pp. 16-30.
18. See id. at 29.
19. See id. at 20-29.
20. See motion for reconsideration dated January 12, 2016; id. at 31-37.
21. Id. at 39-41.
22. See Rivac v. People, G.R. No. 224673, January 22, 2018.
23. See Section 2 (a) of PD 1612.
24. See Section 2 (b) of PD 1612.
25. Ong v. People, 708 Phil. 565, 571 (2013); citing Capili v. CA, 392 Phil. 577, 592 (2000).
26. Ong v. People ; id. at 574; citing Dizon-Pamintuan v. People , G.R. No. 111426, July 11, 1994,
234 SCRA 63, 72. See also Section 5 of PD 1612 which reads:
CD Technologies Asia, Inc. 2018 cdasiaonline.com
Section 5. Presumption of Fencing. — Mere possession of any good, article, item, object,
or anything of value which has been the subject of robbery or thievery shall be prima
facie evidence of fencing.
27. In Lim v. People (G.R. No. 211977, October 12, 2016, 806 SCRA 1, 12), it has been held that
conviction of a principal in the crime of theft is not necessary for an accused to be found
guilty of the crime of Fencing.
28. "[C]ircumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that
the object of the sale may have been derived from the proceeds of robbery or theft. Such
circumstances include the time and place of the sale, both of which may not be in
accord with the usual practices of commerce. The nature and condition of the goods
sold, and the fact that the seller is not regularly engaged in the business of selling goods
may likewise suggest the illegality of their source, and therefore should caution the
buyer. This justi es the presumption found in Section 5 of P.D. No. 1612 that 'mere
possession of any goods, . . ., object or anything of value which has been the subject of
robbery or thievery shall be prima facie evidence of fencing' — a presumption that is,
according to the Court, 'reasonable for no other natural or logical inference can arise
from the established fact of . . . possession of the proceeds of the crime of robbery or
theft.'" (Ong v. People , supra note 25, at 573; citing Dela Torre v. COMELEC , 327 Phil.
1144, 1154-1155 [1996].)
29. See Peralta v. People , G.R. No. 221991, August 30, 2017, citing People v. Matibag , 757 Phil.
286, 293 (2015).
30. See id.
31. Entitled "AN ACT TO PROVIDE FOR AN INDETERMINATE SENTENCE AND PAROLE FOR ALL
PERSONS CONVICTED OF CERTAIN CRIMES BY THE COURTS OF THE PHILIPPINE
ISLANDS; TO CREATE A BOARD OF INDETERMINATE SENTENCE AND TO PROVIDE
FUNDS THEREFOR, AND FOR OTHER PURPOSES" (December 5, 1933).
32. See Peralta v. People , supra note 29; citing Quimvel v. People , G.R. No. 214497, April 18,
2017.
33. See Peralta v. People , id.; citing Mabunot v. People , G.R. No. 204659, September 19, 2016,
803 SCRA 349, 364.
34. The whereas clauses of PD 1612 read:
WHEREAS, reports from law enforcement agencies reveal that there is rampant robbery
and thievery of government and private properties;
WHEREAS, such robbery and thievery have become pro table on the part of the lawless
elements because of the existence of ready buyers, commonly known as fence, of stolen
properties;
WHEREAS, under existing law, a fence can be prosecuted only as an accessory after the
fact and punished lightly;
WHEREAS, it is imperative to impose heavy penalties on persons who pro t by the
effects of the crimes of robbery and theft.
35. Supra note 26.
36. Id. at 71-72; citations omitted.
37. Entitled "AN ACT ADJUSTING THE AMOUNT OR THE VALUE OF PROPERTY AND DAMAGE
CD Technologies Asia, Inc. 2018 cdasiaonline.com
ON WHICH A PENALTY IS BASED, AND THE FINES IMPOSED UNDER THE REVISED
PENAL CODE, AMENDING FOR THE PURPOSE ACT NO. 3815, OTHERWISE KNOWN AS
'THE REVISED PENAL CODE,' AS AMENDED" approved on August 29, 2017.
38. See Rivac v. People, G.R. No. 224673, January 22, 2018, supra note 22.
39. Corpuz v. People, 734 Phil. 353, 425 (2014).
40. Article 5 of the RPC reads:
Article 5. Duty of the court in connection with acts which should be repressed but which
are not covered by the law, and in cases of excessive penalties. — Whenever a court has
knowledge of any act which it may deem proper to repress and which is not punishable
by law, it shall render the proper decision, and shall report to the Chief Executive, through
the Department of Justice, the reasons which induce the court to believe that said act
should be made the subject of penal legislation.
In the same way, the court shall submit to the Chief Executive, through the Department
of Justice, such statement as may be deemed proper, without suspending the execution
of the sentence, when a strict enforcement of the provisions of this Code would result in
the imposition of a clearly excessive penalty, taking into consideration the degree of
malice and the injury caused by the offense.
CD Technologies Asia, Inc. 2018 cdasiaonline.com
