SECOND DIVISION

[G.R. No. 135784. December 15, 2000.]

RICARDO FORTUNA Y GRAGASIN , petitioner, vs . PEOPLE OF THE

PHILIPPINES , respondent.

Atty. Cesar T. Verano for petitioner.

The Solicitor General for respondent.

SYNOPSIS

Three policemen, one of whom was herein appellant, were found guilty by the trial court
and the CA of robbery by intimidating complainants Diosdada and her brother Mario to
give them their money. They were sentenced to imprisonment and to restitute in favor of
complainants the sum of P5,000.00, and to indemnify them in the amount of P20,000.00
for moral damages and P15,000.00 for attorney's fees.
In this appeal, appellant claimed that the evidence presented did not support the theory of
conspiracy as against him.
The Supreme Court affirmed the conviction of appellant, ruling: that the issues raised are
factual and the Court, in a petition for review on certiorari, does not sit as an arbiter of
facts; that the three accused applied acts showing sufficient intimidation, enabling them to
coerce the complainants to give them their money; and that appellant's silence was a form
of lending moral support to his co-conspirators because his duty, as a police officer, was
to protect the complainants from his mulcting colleagues at the time the incident took
place.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; PETITION FOR REVIEW ON CERTIORARI;

SUPREME COURT IS NOT AN ARBITER OF FACTS ON APPEAL; CASE AT BAR. The issues
raised by accused-appellant are purely factual. In a petition for review on certiorari this
Court does not sit as an arbiter of facts. As such, it is not our function to re-examine every
appreciation of facts made by the trial and appellate courts unless the evidence on record
does not support their findings or the judgment is based on a misappreciation of facts.
The ascertainment of what actually happened in a controverted situation is the function of
the lower courts. If we are to re-examine every factual finding made by them, we would not
only be prolonging the judicial process but would also be imposing upon the heavily
clogged dockets of this Court. We do not see any infirmity in the present case justifying a
departure from this well-settled rule. On the contrary, we are convinced that the trial and
appellate courts did not err in holding that accused-appellant Fortuna conspired with the
accused Pablo and Garcia in intimidating private complainants to give them their money.
2. ID; EVIDENCE; CONSPIRACY; SILENCE OF POLICE OFFICER DURING COMMISSION OF
OFFENSE VIEWED AS LENDING MORAL SUPPORT TO CO-CONSPIRATORS; CASE AT BAR.
Accused-appellant would want to impress upon this Court that his silence inside the car
during Mario's interrogation confirmed his claim that he did not participate in the offense.
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 We do not agree. As a police officer, it is his primary duty to avert by all means the
commission of an offense. As such, he should not have kept his silence but, instead,
should have protected the Montecillos from his mulcting colleagues. This accused-
appellant failed to do. His silence then could only be viewed as a form of moral support
which he zealously lent to his co-conspirators.CcSTHI

3. CRIMINAL LAW; REVISED PENAL CODE; AGGRAVATING CIRCUMSTANCES; ABUSE OF

PUBLIC POSITION PRESENT IN CASE AT BAR. The courts below failed to appreciate the
aggravating circumstance of "abuse of public position." The mere fact that the three (3)
accused were all police officers at the time of the robbery placed them in a position to
perpetrate the offense. If they were not police officers they could not have terrified the
Montecillos into boarding the mobile patrol car and forced them to hand over their money.
Precisely it was on account of their authority that the Montecillos believed that Mario had
in fact committed a crime and would be brought to the police station for investigation
unless they gave them what they demanded.

DECISION

BELLOSILLO , J p

Perhaps no other profession in the country has gone through incessant maligning by the
public in general than its own police force. Much has been heard about the notoriety of this
profession for excessive use and illegal discharge of power. The present case is yet
another excuse for such vilification.
On 21 July 1992 at about 5:00 o'clock in the afternoon, while Diosdada Montecillo and her
brother Mario Montecillo were standing at the corner of Mabini and Harrison Streets
waiting for a ride home, a mobile patrol car of the Western Police District with three (3)
policemen on board stopped in front of them. The policeman seated on the right at the
front seat alighted and without a word frisked Mario. He took Mario's belt, pointed to a
supposedly blunt object in its buckle and uttered the word "evidence." 1 Then he motioned
to Mario to board the car. The terrified Mario obeyed and seated himself at the back
together with another policeman. Diosdada instinctively followed suit and sat beside
Mario.
They cruised towards Roxas Boulevard. The driver then asked Mario why he was carrying a
"deadly weapon," to which Mario answered, "for self-defense since he was a polio victim." 2
The driver and another policeman who were both seated in front grilled Mario. They
frightened him by telling him that for carrying a deadly weapon outside his residence he
would be brought to the Bicutan police station where he would be interrogated by the
police, mauled by other prisoners and heckled by the press. As they approached Ospital ng
Maynila, the mobile car pulled over and the two (2) policemen in front told the Montecillos
that the bailbond for carrying a "deadly weapon" was P12,000.00. At this point, the driver
asked how much money they had. Without answering, Mario gave his P1,000.00 to
Diosdada who placed the money inside her wallet. HDTSCc

Diosdada was then made to alight from the car. She was followed by the driver and was
told to go behind the vehicle. There, the driver forced her to take out her wallet and
rummaged through its contents. He counted her money. She had P5,000.00 in her wallet.
The driver took P1,500.00 and left her P3,500.00. He instructed her to tell his companions
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 that all she had was P3,500.00. While going back to the car the driver demanded from her
any piece of jewelry that could be pawned. Ruefully, she removed her wristwatch and
offered it to him. The driver declined saying, "Never mind," 3 and proceeded to board the
car. Diosdada, still fearing for the safety of her brother, followed and sat beside him in the
car.
Once in the car, Diosdada was directed by the policeman at the front passenger seat to
place all her money on the console box near the gearshift. The car then proceeded to
Harrison Plaza where the Montecillos were told to disembark. From there, their dreadful
experience over, they went home to Imus, Cavite.
The following day Diosdada recounted her harrowing story to her employer Manuel Felix
who readily accompanied her and her brother Mario to the office of General Diokno where
they lodged their complaint. Gen. Diokno directed one of his men, a certain Lt. Ronas, to
assist the complainants in looking for the erring policemen. They boarded the police patrol
car and scoured the Mabini area for the culprits. They did not find them.
When they returned to the police station, a line-up of policemen was immediately
assembled. Diosdada readily recognized one of them as the policeman who was seated
beside them in the back of the car. She trembled at the sight of him. She then rushed to Lt.
Ronas and told him that she saw the policeman who sat beside them in the car. He was
identified by Lt. Ronas as PO2 Ricardo Fortuna. A few minutes later, Gen. Diokno
summoned the complainants. As they approached the General, they at once saw PO2
Eduardo Garcia whom they recognized as the policeman who frisked Mario. The following
day, they met the last of their tormentors, the driver of the mobile car who played heavily
on their nerves PO3 Ramon Pablo.
The three (3) policemen were accordingly charged with robbery. After trial, they were
found guilty of having conspired in committing the crime with intimidation of persons.
They were each sentenced to a prison term of six (6) years and one (1) day to ten (10)
years of prision mayor, to restitute in favor of private complainants Diosdada Montecillo
and Mario Montecillo the sum of P5,000.00, and to indemnify them in the amount of
P20,000.00 for moral damages and P15,000.00 for attorney's fees. 4
The accused separately appealed to the Court of Appeals. On 31 March 1997 the appellate
court affirmed the lower court's verdict. 5 Accused-appellant Ricardo Fortuna moved for
reconsideration but the motion was denied. Hence, this petition by Fortuna alone under
Rule 45 of the Rules of Court. He contends that the appellate court erred in holding that
private complainants gave the money to the accused under duress, the same being
negated by the prosecution's evidence, and in affirming the decision of the court below. He
argued that the evidence presented by the prosecution did not support the theory of
conspiracy as against him. 6
The issues raised by accused-appellant, as correctly observed by the Solicitor General, are
purely factual. We have consistently stressed that in a petition for review on certiorari this
Court does not sit as an arbiter of facts. As such, it is not our function to re-examine every
appreciation of facts made by the trial and appellate courts unless the evidence on record
does not support their findings or the judgment is based on a misappreciation of facts. 7
The ascertainment of what actually happened in a controverted situation is the function of
the lower courts. If we are to re-examine every factual finding made by them, we would not
only be prolonging the judicial process but would also be imposing upon the heavily
clogged dockets of this Court.

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 We do not see any infirmity in the present case justifying a departure from this well-settled
rule. On the contrary, we are convinced that the trial and appellate courts did not err in
holding that accused-appellant Fortuna conspired with the accused Pablo and Garcia in
intimidating private complainants to give them their money.

We are convinced that there was indeed sufficient intimidation applied on the offended
parties as the acts performed by the three (3) accused, coupled with the circumstances
under which they were executed, engendered fear in the minds of their victims and
hindered the free exercise of their will. The three (3) accused succeeded in coercing them
to choose between two (2) alternatives, to wit: to part with their money or suffer the
burden and humiliation of being taken to the police station.
To our mind, the success of the accused in taking their victims' money was premised on
threats of prosecution and arrest. This intense infusion of fear was intimidation, plain and
simple. CTEacH

Accused-appellant further argues that assuming arguendo that the element of intimidation
did exist, the lower court erred in holding that he conspired with his companions in
perpetrating the offense charged.
This indeed is easy to assert, for conspiracy is something which exists only in the minds of
the conspirators, which can easily be denied. However, conspiracy may be detected and
deduced from the circumstances of the case which when pieced together will indubitably
indicate that they form part of a common design to commit a felony; and, to establish
conspiracy, it is not essential that there be actual proof evincing that all of the conspirators
took a direct part in every act, it being sufficient that they acted in concert pursuant to the
same objective. 8
In the present case, accused-appellant would want to impress upon this Court that his
silence inside the car during Mario's interrogation confirmed his claim that he did not
participate in the offense. DISTcH

We do not agree. As a police officer, it is his primary duty to avert by all means the
commission of an offense. As such, he should not have kept his silence but, instead,
should have protected the Montecillos from his mulcting colleagues. This accused-
appellant failed to do. His silence then could only be viewed as a form of moral support
which he zealously lent to his co-conspirators.
In one case, we ruled that in conspiracy all those who in one way or another helped and
cooperated in the consummation of a felony were co-conspirators. 9 Hence, all of the three
(3) accused in the present case should be held guilty of robbery with intimidation against
persons.
We however observe that the courts below failed to appreciate the aggravating
circumstance of "abuse of public position." 1 0 The mere fact that the three (3) accused
were all police officers at the time of the robbery placed them in a position to perpetrate
the offense. If they were not police officers they could not have terrified the Montecillos
into boarding the mobile patrol car and forced them to hand over their money. Precisely it
was on account of their authority that the Montecillos believed that Mario had in fact
committed a crime and would be brought to the police station for investigation unless they
gave them what they demanded. cIETHa

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 Accordingly, the penalty imposed should be modified. Under Art. 294, par. (5), of The
Revised Penal Code, the penalty for simple robbery is prision correccional in its maximum
period to prision mayor in its medium period. In view of the aggravating circumstance of
abuse of public position, the penalty should be imposed in its maximum period 1 1 while the
minimum shall be taken from the penalty next lower in degree, which is arresto mayor
maximum to prision correccional medium in any of its periods the range of which is four
(4) months and one (1) day to four (4) years and two (2) months.
WHEREFORE, the Decision of the Court of Appeals which affirmed that of the trial court
finding accused-appellant Ricardo Fortuna guilty of robbery and ordering him to pay
complaining witnesses Diosdada Montecillo and Mario Montecillo P5,000.00 representing
the money taken from them, P20,000.00 for moral damages and P15,000.00 for attorney's
fees, is AFFIRMED with the modification that accused-appellant Ricardo Fortuna is
SENTENCED to the indeterminate prison term of two (2) years four (4) months and twenty
(20) days of the medium period of arresto mayor maximum to prision correccional
medium, as minimum, to eight (8) years two (2) months and ten (10) days of the maximum
period of prision correccional maximum to prision mayor medium, as maximum.
Costs against accused-appellant Ricardo Fortuna.
SO ORDERED.
Mendoza, Quisumbing, Buena and De Leon, Jr., JJ., concur.
Footnotes

1. TSN, 21 July 1993, p. 10.

2. TSN, 8 February 1993, p. 6.

3. TSN, 3 February 1993, p. 23.

4. Decision penned by Judge Zenaida R. Dacuna, RTC-Br. 19 Manila; Records, pp. 174-180.
5. Associate Justice Antonio M. Martinez (now Ret. Supreme Court Associate Justice) as
ponente and Associate Justices Eduardo G. Montenegro and Salvador J. Valdez , Jr.
concurring; CA Rollo, pp. 20-33.
6. Rollo, pp. 11-12.

7. Go v. Court of Appeals, G.R. No. 104609, 30 June 1993, 224 SCRA 147.
8. People v. Base, G.R. No. 109773, 30 March 2000.

9. Ibid.
10. Art. 14 (1), The Revised Penal Code.

11. Art. 63, id.

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