G.R. No.

225695

IRENEO CAHULOGAN, Petitioner
vs.
PEOPLE OF THE PHILIPPINES, Respondent

DECISION

PERLAS-BERNABE, J.:

Before the Court is a petition for review on certiorari  filed by petitioner Ireneo Cahulogan (petitioner)
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assailing the Decision  dated November 6, 2015 and the Resolution  dated June 8, 2016 of the Court
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of Appeals (CA) in CA-G.R. CR No. 01126-MIN, which affirmed the Judgment  dated October 4,
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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, defined and penalized under
Presidential Decree No. (PD) 1612, otherwise known as the "Anti-Fencing Law of 1979." 5

The Facts

On April 18, 2011, an Information  was filed before the RTC charging petitioner with the crime of
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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
₱52,476.00 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 ₱50,000.00, 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 order to minimize losses, Tan negotiated with petitioner to
instead deliver to him ₱20,000.00 worth of empty bottles with cases, as evidenced by their
Agreement  dated January 18, 2011. Nonetheless, Tan felt aggrieved over the foregoing events,
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thus, prompting him to secure an authorization to file 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,   but chose not to present any evidence in his
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defense. Rather, he merely submitted his memorandum,   maintaining that the prosecution failed to
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prove his guilt beyond reasonable doubt.  12

The RTC Ruling

In a Judgment   dated October 4, 2013, the RTC found petitioner guilty beyond reasonable doubt of
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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 fifteen (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 R TC 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 official receipts; and (b) did not demand that such items be replaced by
empty bottles, a common practice in purchases of soft drink products.  15

Aggrieved, petitioner appealed  to the CA.

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The CA Ruling

In a Decision  dated November 6, 2015, the CA affirmed petitioner's conviction.   It held that
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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.  19

Undaunted, petitioner moved for reconsideration   which was, however, denied in a

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Resolution  dated June 8, 2016; hence, this petition.

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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 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 the penalty, and cite the proper provision of the penal law." 22

Guided by this consideration, the Court finds no reason to overturn petitioner's conviction for the
crime of Fencing.

Section 2 of PD 1612 defines 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."  The same Section also states that a Fence "includes any person, firm, association,
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corporation or partnership or other organization who/which commits the act of fencing." 24

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.   Notably, Fencing is a malum prohibitum, and PD 1612 creates a prima
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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. 26

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 confidence reposed upon him as a truck helper;  (b) 27

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 official 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;  and (d) petitioner's intent to gain was made evident
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by the fact that he bought the subject items for just ₱50,000.00, lower than their value in the amount
of ₱52,476.00. "[T]he Court finds no reason to deviate from the factual findings of the trial court, as
affirmed 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." 29

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:

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. 1avvphi1

xxxx

Notably, while the crime of Fencing is defined 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,  the Court discussed the proper treatment of penalties found in special penal laws vis-a-vis
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Act No. 4103,  otherwise known as the "Indeterminate Sentence Law," viz .:

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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 clarified in the landmark ruling of People v. Simon that the situation is
different where although the offense is defined 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.  32

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. 33

Applying the foregoing and considering that there are neither mitigating nor aggravating
circumstances present in this case, the Court finds 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 fifteen (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.   This rationale was echoed in Dizon-
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Pamintuan v. People where the Court held that while a Fence may be prosecuted either as an
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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 defined 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 qualification 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 profitable 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 profit by the
effects of 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.  36

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 ₱22,000.00, with additional penalties for each additional Pl0,000.00; (b) is more
than ₱12,000.00 but not exceeding ₱22,000.00; (c) is more than ₱6,000.00 but not exceeding
₱12,000.00; (d) is more than ₱200.00 but not exceeding ₱6,000.00; (e) is more than ₱50.00 but not
exceeding ₱200.00; and (f) does not exceed ₱5.00. However, with the recent enactment of Republic
Act No. 10951,  which adjusted the values of the property and damage on which various penalties
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are based, taking into consideration the present value of money, as opposed to its archaic values
when the RPC was enacted in 1932,  the graduation of values in Article 309 was substantially
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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.

However, while it may be the most expeditious approach, a short cut by judicial fiat is a dangerous
proposition, lest the Court dare trespass on prohibited judicial legislation.   As the Court remains
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mindful of the fact that the determination of penalties is a policy matter that belongs to the legislative
branch of the government, it finds 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  of the RPC, copies of this ruling in order to alert them on the aforestated incongruence of
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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 finding petitioner
Ireneo Cahulogan GUILTY beyond reasonable doubt of the crime of Fencing defined 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.