THIRD DIVISION

G.R. No. 189122 : March 17, 2010

JOSE ANTONIO LEVISTE,Petitioner, vs. THE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents.

DISSENTING OPINION

PERALTA, J.:

The denial of an application for bail pending appeal on a case where the accused was charged with Murder but was convicted with Homicide seriously poses some important questions.chanroblesvirtua|awlibary

By denying the application for bail pending appeal of an accused who was charged with the crime of Murder but was convicted of the crime of Homicide, is this Court, in effect, saying that the evidence of guilt for the crime of Murder is strong despite the lower court's finding of proof beyond reasonable doubt of the crime of Homicide, a bailable offense?

By denying the application for bail pending appeal on the ground that the evidence of guilt for the crime of Murder is strong, is this court, in a way, unknowingly preempting the judgment of the Court of Appeals as to the main case?

In the event that the Court of Appeals sustains the conviction of the accused of the crime of Homicide, a bailable offense and the accused decides to file a Petition for Certiorari before this Court, will the denial of the application for bail of the accused still be effective?

With due respect to the present ponencia, an affirmative response to the above questions would bring about some absurdities.chanroblesvirtua|awlibary

Section 13, Article III of the 1987 Philippine Constitution provides the following:

Sec. 13. ALL PERSONS, EXCEPT THOSE CHARGED WITH OFFENSES PUNISHABLE BY RECLUSION PERPETUA WHEN EVIDENCE OF GUILT IS STRONG, SHALL, BEFORE CONVICTION, BE BAILABLE BY SUFFICIENT SURETIES, OR BE RELEASED ON RECOGNIZANCE AS MAY BE PROVIDED BY LAW.THE RIGHT TO BAIL SHALL NOT BE IMPAIRED EVEN WHEN THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IS SUSPENDED.EXCESSIVE BAIL SHALL NOT BE REQUIRED.chanroblesvirtua|awlibary

The Philippine Constitution itself emphasizes the right of an accused to bail with the sole exception of those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong.Cases, like in the present case, when an accused is charged with Murder but was convicted with Homicide,mean only one thing, that the lower court found the evidence for the crime charged not strong, hence, the accused's conviction of a lesser offense.Therefore, the denial of the same accused's application for bail pending appeal on the ground that the evidence of his guilt for the crime charged is strong, would unintentionally be suggestive of the outcome of the appealed decision of the lower court. The discretion whether to grant the application for bail or not is given to the CA in cases such as the present one, on the reason that the same appellate court can review the factual findings of the lower court.However, this will no longer be the case if a Petition for Certiorari is filed with this Court as it is not a trier of facts.Hence, the existence of those queries brought about by the majority opinion casts confusion rather than an enlightenment on the present case.chanroblesvirtua|awlibary

The following discussion, in my opinion, should shed light on the matter:

Before this Court is a Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure which seeks to nullify and set aside the Resolutionsc�fa1c�fac�fal�.w dated April 8, 2009 and July 14, 2009 of the Court of Appeals (CA).chanroblesvirtua|awlibary

The antecedent facts are the following:

Arising from a shooting incident that happened on January 12, 2007 at petitioner Jose Antonio Levistes office where Rafael de las Alas died of gunshot wounds, petitioner was charged with murder under the Amended Information dated March 15, 2007 in Criminal Case No. 07-179 of the Regional Trial Court (RTC) of Makati City, Branch 150.chanroblesvirtua|awlibary

Petitioner, on February 23, 2007, filed an Urgent Application for Admission to Bail Ex Abundanti Cautela2c�fac�fal�.won the ground that the evidence of the prosecution was not strong. The trial court, in its Orderc�fa3c�fac�fal�.w dated May 21, 2007, granted petitioner's application for bail.chanroblesvirtua|awlibary

Subsequently, trial ensued and, on January 14, 2009, the trial court rendered its Decisionc�fa4c�fac�fal�.w finding petitioner guilty beyond reasonable doubt of the crime of homicide, the dispositive portion of which reads:

WHEREFORE, PREMISES CONSIDERED, accused Jose Antonio Leviste y Casals is hereby found guilty beyond reasonable doubt of the crime of homicide and is sentenced to suffer the indeterminate penalty of six (6) years and one (1) day of prision mayor as minimum, to twelve (12) years and one (1) day of reclusion temporal as maximum.Accused is further ordered to pay the heirs of the victim, Rafael de las Alas, the amount of Php50,000.00 as death indemnity and Php50,000.00 as moral damages.chanroblesvirtua|awlibary

Accused Jose Antonio Leviste y Casals shall be credited in the service of his sentence consisting of deprivation of liberty, with the full time during which he had undergone preventive imprisonment at the Makati City Jail from February 7, 2007 up to May 22, 2007 up provided that he agreed voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners.chanroblesvirtua|awlibary

SO ORDERED.chanroblesvirtua|awlibary

Consequently, in its Orderc�fa5c�fac�fal�.w dated January 14, 2009, the trial court canceled petitioner's bail bond, ruling that:

Accused Jose Antonio Leviste y Casals was charged with the crime of Murder, a capital offense or an offense which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion perpetua to death.The accused is presently out on bail.After trial, the accused was however convicted of Homicide, a lesser offense than that charged in the Information.Accused was accordingly sentenced to suffer the indeterminate penalty of six (6) years and one (1) day of prision mayor as minimum, to twelve (12) years and one (1) day of reclusion temporal as maximum.chanroblesvirtua|awlibary

Sec. 5, Rule 114 of the Rules on Criminal Procedure which is deemed to have modified SC Administrative Circular No. 2-92 dated January 20, 1992, provides:

Bail, when discretionary. - Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary.The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court.However, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.chanroblesvirtua|awlibary

In Obosa v. Court of Appeals, G.R. No. 114350, January 16, 1997, 266 SCRA 281, 78 SCAD 17, the Supreme Court, speaking thru the Third Division, stated:

x x x that bail cannot be granted as a matter of right even after an accused, who is charged with a capital offense, appeals his conviction for a non-capital crime.Courts must exercise utmost caution in deciding applications for bail considering that the accused on appeal may still be convicted of the original capital offense charged and that the risk attendant to jumping bail still subsists.In fact, trial courts would be well advised to leave the matter of bail, after conviction for a lesser crime than the capital offense originally charged, to the appellate court's sound discretion.chanroblesvirtua|awlibary

In view of the aforecited rules and prevailing jurisprudence on the matter, the bailbond posted by the accused for his provisional liberty is deemed cancelled.Accused being considered a national prisoner is ordered committed to the Makati City Jail, Makati City, pending his transfer to the New Bilibid Prison at Muntinlupa City.chanroblesvirtua|awlibary

SO ORDERED.chanroblesvirtua|awlibary

Petitioner filed a Notice of Appealc�fa6c�fac�fal�.w dated January 14, 2009 and on January 15, 2009, filed with the CA an Urgent Application for Admission to Bail Pending Appeal and an Urgent Ex Parte Motion for Special Raffle and to Resolve the Attached Application for Admission to Bail.The CA, in its Resolution dated April 8, 2009, denied petitioner's application for bail pending appeal, the disposition reading:

IN VIEW OF THE FOREGOING REASONS, the Urgent Application for Admission to Bail Pending Appeal is hereby DENIED.chanroblesvirtua|awlibary

SO ORDERED.chanroblesvirtua|awlibary

The CA also denied petitioner's Motion for Reconsideration dated April 14, 2009 in its Resolutionc�fa7c�fac�fal�.w dated July 14, 2009.chanroblesvirtua|awlibary

Hence, the present petition.chanroblesvirtua|awlibary

Petitioner states the following arguments:

THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN DENYING PETITIONER'S APPLICATION FOR BAIL PENDING APPEAL DESPITE THE FACT THAT NONE OF THE CONDITIONS TO JUSTIFY THE DENIAL THEREOF UNDER RULE 114, SECTION 5 ARE PRESENT, MUCH LESS PROVEN BY THE PROSECUTION.chanroblesvirtua|awlibary

THE COURT OF APPEALS GRAVELY ERRED IN IGNORING THE FACT THAT PETITIONER WAS CONVICTED OF HOMICIDE, A BAILABLE OFFENSE, AND THAT AS TWICE SHOWN IN THE PROCEEDINGS BELOW, THE EVIDENCE THAT PETITIONER COMMITTED THE CRIME OF MURDER IS NOT STRONG.THE COURT OF APPEALS UNJUSTLY PREJUDGED PETITIONER'S APPEAL BY CONCLUDING THAT THE EVIDENCE OF GUILT FOR MURDER IS STRONG, DESPITE THE FINDINGS OF THE TRIAL COURT TO THE CONTRARY.chanroblesvirtua|awlibary

THE COURT OF APPEALS SHOWED UNJUST BIAS IN ALLOWING PROSECUTOR VELASCO TO PARTICIPATE IN THE APPELLATE PROCEEDINGS.c�fa8c�fac�fal�.w

According to petitioner, the CA should have granted bail in view of the absence of any of the circumstances enumerated under paragraphs (a) to (e), Section 5, Rule 114.He adds that he is neither a recidivist, a quasi-recidivist or habitual delinquent, nor a flight risk; and there is no undue risk that he would commit another crime during the pendency of his appeal.chanroblesvirtua|awlibary

Petitioner further argues that the CA committed a grave error and prejudged the appeal by denying his application for bail on the ground that the evidence that he committed a capital offense was strong.He points out that the records show that the trial court already granted him bail, since it found that the prosecution had failed to demonstrate that the evidence of his guilt for the crime of murder was strong; and this was further confirmed when the trial court convicted him of the crime of homicide instead of murder.Hence, petitioner insists that the trial court's determination that he is not guilty of a capital offense should subsist even on appeal.chanroblesvirtua|awlibary

Anent the third issue, petitioner claims that the CA allowed Prosecutor Emmanuel Velasco to delay his application for bail by filing mere manifestations requesting the CA to provide him with copies of petitioner's motions and written submissions.chanroblesvirtua|awlibary

In its Comment dated November 20, 2009, the Office of the Solicitor General (OSG) contends that the CA committed no grave abuse of discretion in denying petitioner's application for bail pending appeal.Although the grant of bail is discretionary in non-capital offenses, if, as in this case, imprisonment has been imposed on the petitioner in excess of six (6) years and circumstances point to a considerable likelihood that he may flee if released on bail, then he must be denied bail, or his bail previously granted should be canceled.The OSG also reiterates the ruling in Obosa v. Court of Appeals,c�fa9c�fac�fal�.w which was relied upon by the CA in denying the application for bail, stating that after an accused has been tried and convicted, the presumption of innocence, which may be relied upon if prior application is rebutted, the burden is upon the accused to show error in the conviction.As to the claim of petitioner that the CA gravely abused its discretion in allowing Prosecutor Velasco to participate in the appellate proceedings, the OSG dismissed the said argument as without merit.chanroblesvirtua|awlibary

In his Manifestation and Motion dated December 9, 2009, petitioner contends that the OSG's arguments in its Comment are a mere rehash of the baseless justifications and arguments made by the CA in denying his application for bail, arguments which have already been tackled and refuted by him in the present petition.chanroblesvirtua|awlibary

Petitioner, in a Manifestation dated November 25, 2009, notified this Court that he had filed a Very Urgent Motion for a Medical Pass before the CA, as he had to undergo medical treatment at the soonest possible time.chanroblesvirtua|awlibary

In his December 21, 2009 Reply [to Respondent People of the Philippines' Comment dated 20 November 2009], petitioner reiterated the arguments he raised in his petition.chanroblesvirtua|awlibary

In a letter dated November 25, 2009, which wasreceived by the Office of the Chief Justice on December 7, 2009, Mrs. Teresita C. de las Alas (wife), Ms. Dinna de las Alas-Sanchez (daughter), and Ms. Nazareth H. de las Alas (daughter) expressed consent to the grant of bail to the petitioner.chanroblesvirtua|awlibary

The petition is impressed with merit.chanroblesvirtua|awlibary

Sections 5 and 7, Rule 114 of the 2000 Revised Rules on Criminal Procedure, as amended, provide that:

Sec. 5. Bail, when discretionary. Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court.However, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.

Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman.chanroblesvirtua|awlibary

If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be canceled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances:

(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration;cralaw

(b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without a valid justification;cralaw

(c) That he committed the offense while under probation, parole, or conditional pardon;cralaw

(d) That the circumstances of his case indicate the probability of flight if released on bail; or

(e) That there is undue risk that he may commit another crime during the pendency of the appeal.chanroblesvirtua|awlibary

The appellate court may, motu propio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case.chanroblesvirtua|awlibary

SEC. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution.

Prior to the affectivity of the above provisions, the governing rule in the granting or cancellation of bail was encapsulated in Administrative Circular No. 12-94,c�fa10c�fac�fal�.w stating that:

Sec. 3.Bail, a matter of right; exception. All personsin custody shall, before final conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong.chanroblesvirtua|awlibary

x x x x

SEC. 5 Bail, When Discretionary. Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the court, on application, may admit the accused to bail.chanroblesvirtua|awlibary

The court, in its discretion, may allow the accused to continue on provisional liberty under the same bail bond during the period of appeal subject to the consent of the bondsman.chanroblesvirtua|awlibary

If the court imposed a penalty of imprisonment exceeding six (6) years but not more than twenty (20) years, the accused shall be denied bail, or his bail previously granted shall be canceled, upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances:

(a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration;cralaw

(b) That the accused is found to have previously escaped from legal confinement, evaded sentence, or has violated the conditions of his bail without valid justification;cralaw

(c) That the accused committed the offense while on probation, parole, or under conditional pardon;cralaw

(d) That the circumstances of the accused or his case indicate the probability if flight of released on bail; or

(e) That there is undue risk that during the pendency of the appeal, the accused may commit another crime.chanroblesvirtua|awlibary

The appellate court may review the resolution of the Regional Trial Court, on motion and with notice to the adverse party.chanroblesvirtua|awlibary

As can be gleaned above, the set of circumstances appearing in Section 5, Rule 114 of the Rules of Court brought about by Administrative Circular No. 12-94 has been retained in the present Rules. Notably, it was after the ruling of this Court in Obosa v. Court of Appeals11c�fac�fal�.w that the present provisions of Secs. 5 and 7, Rule 114 of the 2000 Revised Rules of Criminal Procedure became effective.chanroblesvirtua|awlibary

In canceling petitioner's bail bond and denying his application for bail pending appeal, the trial court and the CA, as well as the OSG in its Comment to thepetition, relied on Obosa v. CA,12c�fac�fal�.wwhere this Court ruledthat bail cannot be granted as a matter of right even after an accused, who is charged with a capital offense, appeals his conviction for a non-capital crime.The said case, however, is not applicable.In Obosa, the petitioner therein was convicted and applied for bail pending appeal prior to the affectivity of the amendments brought about by Administrative Circular No. 12-94; thus, the set of circumstances, as now seen in the present Rules, was yet to be present.Granting arguendo that the present provisions of Section 5, Rule 114 can be made applicable to petitioner Obosa, this Court, in that same case, still deemed him to be disqualified from the grant of bail on the basic reason that, aside from Obosa being convicted of two counts of homicide, circumstances a, b, d and e of Section 5, Rule 114 of the Rules of Court were present.In the present case, as will be discussed later, not one of the circumstances that would warrant the denial of bail is present.chanroblesvirtua|awlibary

Incidentally, magnified in the denial of petitioner's application for bail pending appeal was the reliance of the CA on the judgment of conviction rendered by the trial court. According to the CA, the evidence of guilt of the petitioner, as found by the trial court, was strong,therefore, the provisions of Section 7 of Rule 114 ofthe 2000 Revised Rules of Criminal Procedure were applicable, the crime charged being murder.chanroblesvirtua|awlibary

However, it must be remembered that although petitioner was charged with the crime of murder, he was convicted of the crime of homicide.Prior to the said conviction, the trial court, after bail hearing, granted bail to petitioner, thus:

Accordingly, forfailure of the prosecution to demonstrate that the evidence of guilt of the accused Jose Antonio J. Leviste for the crime of Murder is strong to foreclose his right to bail, the court hereby grants the motion and, allows the accused to post bail in the amount of P300,000.00 for his provisional liberty.Accused shall be discharged or released only upon the approval of his bail by the Court.chanroblesvirtua|awlibary

SO ORDERED.c�fa13c�fac�fal�.w

Ultimately, after the trial of the case, the trial court found petitioner guilty beyond reasonable doubt of the crime of homicide, not murder as originally charged, demonstrating the consistency of the trial court's findings in the bail hearing and in the actual trial of the said case.Nevertheless, the CA, in denying petitioner's application for bail, relied on Section 7, Rule 114 of the Rules of Court insisting that the evidence of guilt of the petitioner was strong.By ruling thus, the CA has not accorded respect to the factual findings of the trial court.It is a time-honored legal precept, in this regard that the findings of fact of the trial court are accorded great respect by appellate courts and should not be disturbed on appeal unless the trial court has overlooked, ignored, or disregarded some fact or circumstance of sufficient weight or significance which, if considered, would alter the situation.c�fa14c�fac�fal�.w Moreover, there seems to be a disparity between the pronouncement of the CA that the trial court found the evidence of guilt of the petitioner strong and the explanation of why the former considered it to be so.The CA ruled that:

From the judgment of conviction rendered by the trial court, the prosecution had demonstrated that appellant's guilt is strong, after finding that accused failed to satisfy the requirements of self-defense to justify the shooting of the victim.Said court carefully and meticulously evaluated the evidence on record and ruled that the claim of appellant that the victim was the agressor deserves disbelief considering that evidence at the scene of the crime indicated that the victim could not have fired the gun apparently placed in his hand;appellant's conduct in refusing to be subjected to paraffin test is not the natural tendency of a person claiming self-defense; and neither was appellant threatened or intimidated by the victim's averred pugnacious, quarrelsome or trouble-seeking character of the victim.And even assuming arguendo that there was unlawful aggression, the trial court found that the five (5) gunshot wounds (four) [4] shots even aimed at head, a vital organ) were not reasonable means to repel the same, and the evidence demonstrated a determined effort on the part of the appellant to kill the victim and not just to defend himself.However, appellant was convicted of the lesser offense (homicide) since the qualifying circumstances of treachery, evident premeditation and cruelty or ignominy, alleged in the Amended Information, were not duly proven at the trial.15c�fac�fal�.w

The above observation of the CA serves nothing but to bolster the earlier finding of the trial court that the prosecution was not able to present evidence that would prove that the guilt of the petitioner as to the crimecharged (murder) was strong.Section 7, Rule 114 of the Rules of Court, clearly mandates that no person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong. The provision distinctly refers to the crime charged and not the crime proven.The failure then of the prosecution to prove the existence of the circumstances to qualify the crime committed to murder, the crime charged, necessarily means that the evidence of his guilt of the said crime is not strong.chanroblesvirtua|awlibary

Ideally, what the CA should have done was to consolidate the application for bail with the petition filed before it because it is only in that manner by which the appellate court may ascertain whether the evidence of guilt of the accused for the crime charged is indeed strong, or in reverse, whether the lower court was right in convicting the accused of a lesser offense.chanroblesvirtua|awlibary

Above all else, the CA should have applied the provisions of Section 5, Rule 114 of the Rules of Court, wherein the appellate court is given the discretion to grant bail to the petitioner after considering the enumerated circumstances, the penalty imposed by the trial court having exceeded six years.Although this Court has held that the discretion to extend bail during the course of the appeal should be exercised with grave caution and for strong reasons, considering that the accused has been in fact convicted by the trial court,c�fa16c�fac�fal�.wthe set of circumstances succinctly provided in Section 5, Rule 114 of the Rules of Court should be considered.chanroblesvirtua|awlibary

The saidset of circumstances has been provided as a guide for the exercise of the appellate court's discretion in granting or denying the application for bail, pending the appeal of an accused who has been convicted of a crime where the penalty imposed by the trial court is imprisonment exceeding six (6) years.Otherwise, if it is intended that the said discretion be absolute, no such set of circumstances would have been necessarily included in the Rules.Thus, if the present ruling of the CA is upheld, anyone who has been charged with a capital offense,or an offense punishable by reclusion perpetua or life imprisonment but convicted by the trial court of a lesser offense, would no longer be able to apply for bail pending ones appeal.And by that premise, the discretion accorded to the appellate court in granting or denying applications for bail for those who have been convicted by the trial court with imprisonment exceeding six (6) years as penalty would have to be rendered nugatory and the provisions of Section 5, Rule 114 of the 2000 Revised Rules of Criminal Procedure would also be rendered useless.chanroblesvirtua|awlibary

Therefore, applying the provisions of Section 5, Rule 114 of the 2000 Revised Rules of Criminal Procedure and after a careful perusal of the records and a learned consideration of the arguments of the parties, this Court finds no reason to deny petitioner his application for bail pending appeal.Petitioner is indisputably not a recidivist, quasi-recidivist, or habitual delinquent, or has he committed the crime aggravated by the circumstance of reiteration.He has also not previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without a valid justification.He did not commit the offense charged while under probation, parole, or conditional pardon.Lastly, as shown by his previous records and pointed out by petitioner,c�fa17c�fac�fal�.w considering his conduct while out on bail during the trial of his case, his advanced age,c�fa18c�fac�fal�.w and his current health condition,c�fa19c�fac�fal�.w the probability of flight is nil andthere is no risk that he may commit another crime during the pendency of the appeal.chanroblesvirtua|awlibary

Also noted by this Court is the letter of the heirs of Rafael de las Alas giving their consent and stating that they have no objection to petitioner's application for bail.Although the said letter or consent can never be a basis for the grant of the application for bail, it serves as a reference for the petitioner's improbability to evade whatever negative result the grant of his appeal might bring.Nonetheless, what governs in this case is the discretion of the appellate court as guided by the provisions of Section 5, Rule 114 of the 2000 Revised Rules of Criminal Procedure.chanroblesvirtua|awlibary

Necessarily, due to the above discussion, I humbly dissent.chanroblesvirtua|awlibary

DIOSDADO M. PERALTA

Associate Justice