RYAN VIRAY,

Republic ofthe Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 205180
Petitioner,
Present:
- versus -
VELASCO, JR., J, Chairperson,
ABAD,
PEOPLE OF THE
PHILIPPINES,
Respondent.
PEREZ,*
MENDOZA, and
LEONEN,JJ.
Promulgated:
.
November 11, 2 ~ r ~ ~ ~ ~ . ~
X ~ ~ .
DECISION
VELASCO, JR., J.:
This is a Petition for Review on Certiorari under Rule 45 to reverse
and set aside the August 31,2012 Decision
1
and January 7, 2013 Resolution
2
of the Court of Appeals (CA) in CA-G.R. CR No. 33076, which affirmed
with modification the Decision of the Regional Trial Court of Cavite City,
Branch 16 (RTC), in Criminal Case No. 66-07.
The factual backdrop of this case is as follows:
An Information for qualified theft was filed against petitioner Ryan
Viray before the RTC, which reads:
That on or about 19 October 2006, in the City of Cavite,
Republic of the Philippines, a place within the jurisdiction of this
Honorable Court, the above-named accused, then being employed as
a helper of ZENAIDA VEDlJA y SOSA with intent to gain and with
grave abuse of confidence, did then and there, willfully, unlawfully
and feloniously steal, take and carry away several pieces of jewelry,
One (1) Gameboy, One (I) CD player, One (I) Nokia cell phone and
a jacket with a total value of P297,800.00 belonging to the said
Zenaida S. Vedua, without the latter's consent and to her damage and
prejudice in the aforestated amount of P297,800.00.
CONTRARY TO LAW.
3
Additional member per raffle dated March 18, 2013.
1
Rollo, pp. 83-98. Penned by Associate Justice Angelita A. Gacutan and concurred in by
Associate Justices Fernanda Lampas Peralta and Francisco P. Acosta.
2
ld. at 39-40; 108-109.
'ld. at 10,26-27.39-41,61,84.
Decision G.R. No. 205180

2
When arraigned, the accused pleaded not guilty.
4
At the pre-trial,
the defense proposed the stipulation, and the prosecution admitted, that the
accused was employed as a dog caretaker of private complainant
ZenaidaVedua (Vedua) and was never allowed to enter the house and he
worked daily from 5:00 to 9:00 in the morning.
5


During trial, the prosecution presented evidence to prove the
following:

Private complainant Vedua maintains seventy-five (75) dogs at her
compound in Caridad, Cavite City.
6
To assist her in feeding the dogs and
cleaning their cages, private complainant employed the accused who would
report for work from 6:00 a.m. to 5:30 p.m.
7
On October 19, 2006, at around
6:30 in the morning, accused arrived for work. Half an hour later or at 7
oclock, private complainant left for Batangas. Before leaving, she locked
the doors of her house, and left the accused to attend to her dogs. Later, at
around 7:00 in the evening, private complainant arrived home, entering
through the back door of her house. As private complainant was about to
remove her earrings, she noticed that her other earrings worth PhP 25,000
were missing. She then searched for the missing earrings but could not find
them.
8


Thereafter, private complainant also discovered that her jacket inside
her closet and her other pieces of jewelry (rositas) worth PhP 250,000 were
also missing. A Gameboy (portable videogame console), a compact disc
player, a Nokia cellular phone and a Nike Air Cap were likewise missing.
The total value of the missing items supposedly amounted to PhP 297,800.
Private complainant immediately checked her premises and discovered that
the main doors of her house were destroyed.
9
A plastic bag was also
found on top of her stereo, which was located near the bedroom. The plastic
bag contained a t-shirt and a pair of shorts later found to belong to accused.
10


Witness Nimfa Sarad, the laundrywoman of Veduas neighbor,
testified seeing Viray at Veduas house at 6:00 a.m. By 11:00 a.m., she went
out on an errand and saw Viray with an unidentified male companion
leaving Veduas house with a big sack.
11


Another witness, Leon Young, who prepares official/business letters
for Vedua, testified that he went to Veduas house between 10:00 and 11:00
am of October 19, 2006 to retrieve a diskette and saw petitioner with a male
companion descending the stairs of Veduas house. He alleged that since he
knew Viray as an employee of private complainant, he simply asked where


4
Id. at 11, 27.

5
Id. at 40.

6
Id. at 27, 41, 62-63. 84.

7
Id. at 11, 27-28, 41, 63, 84.

8
Id. at 11, 28, 42, 63, 84.

9
Id. at 11, 64, 85.

10
Id. at 11, 64, 85.

11
Id. at 11-12, 29, 43, 65, 85.
Decision G.R. No. 205180

3
Vedua was. When he was told that Vedua was in Batangas, he left and went
back three days after, only to be told about the robbery.
12


Prosecution witness Beverly Calagos, Veduas stay-out
laundrywoman, testified that on October 19, 2006, she reported for work at
5:00 a.m. Her employer left for Batangas at 7:00 am leaving her and
petitioner Viray to go about their chores. She went home around 8:30 a.m.
leaving petitioner alone in Veduas house. Meanwhile, petitioner never
reported for work after that day.
13


For his defense, Viray averred that he did not report for work on the
alleged date of the incident as he was then down with the flu. His mother
even called up Vedua at 5:30 a.m. to inform his employer of his intended
absence. Around midnight of October 20, 2006, Vedua called Virays
mother to report the loss of some valuables in her house and alleged that
Viray is responsible for it. Petitioners sister and aunt corroborated his
version as regards the fact that he did not go to work on October 19, 2006
and stayed home sick.
14


After the parties rested their respective cases, the trial court rendered a
Decision dated December 5, 2009,
15
holding that the offense charged should
have been robbery and not qualified theft as there was an actual breaking of
the screen door and the main door to gain entry into the house.
16
Similarly,
Viray cannot be properly charged with qualified theft since he was not a
domestic servant but more of a laborer paid on a daily basis for feeding the
dogs of the complainant.
17


In this light, the trial court found that there is sufficient circumstantial
evidence to conclude that Viray was the one responsible for the taking of
valuables belonging to Vedua.
18
Hence, the RTC found petitioner Viray
guilty beyond reasonable doubt of robbery and sentenced him, thus:

WHEREFORE, in view of the foregoing considerations, the Court
finds the accused RYAN VIRAY GUILTY beyond reasonable doubt for
the crime of robbery and hereby sentences him to suffer the indeterminate
imprisonment ranging from FOUR (4) years, TWO (2) months and ONE
(1) day of prision correccional, as minimum, to EIGHT (8) years of
prision mayor, as maximum.

SO ORDERED.
19


Aggrieved, petitioner elevated the case to the CA.


12
Id. at 12, 29, 44, 64, 85.

13
Id. at 12, 29-30, 45-46, 65

14
Id. at 12-13, 30, 46-49, 65, 85-86.

15
Id. at 39-56.

16
Id. at 50-51.

17
Id. at 51.

18
Id. at 5-56.

19
Id. at 13, 27, 56, 62, 86-87.
Decision G.R. No. 205180

4
The appellate court found that the Information filed against Viray
shows that the prosecution failed to allege one of the essential elements of
the crime of robbery, which is the use of force upon things. Thus, to
convict him of robbery, a crime not necessarily included in a case of
qualified theft, would violate the constitutional mandate that an accused
must be informed of the nature and cause of the accusation against him.
20


Nonetheless, the CA held that a conviction of the accused for
qualified theft is warranted considering that Viray enjoyed Veduas
confidence, being the caretaker of the latters pets. Viray committed a grave
abuse of this confidence when, having access to the outside premises of
private complainants house, he forced open the doors of the same house and
stole the latters personal belongings.
21
In its assailed Decision, the appellate
court, thus, modified the ruling of the trial court holding that the accused is
liable for the crime of qualified theft.

As to the penalty imposed, considering that there was no independent
estimate of the value of the stolen properties, the CA prescribed the penalty
under Article 309(6)
22
in relation to Article 310
23
of the Revised Penal Code
(RPC).
24
The dispositive portion of the assailed Decision reads, viz:

WHEREFORE, premises considered, the instant appeal is
PARTLY GRANTED. The appealed Decision of the court a quo is hereby
AFFIRMED with MODIFICATION that the accused-appellant be
convicted for the crime of QUALIFIED THEFT and is hereby sentenced
to suffer indeterminate imprisonment of four (4) months and one (1) day
of arresto mayor, as minimum, to two (2) years, four (4) months and one
(1) day of prision correccional, as maximum. The appellant is also
ordered to return the pieces of jewelry and other personal belongings taken
from private complainant. Should restitution be no longer possible, the
accused appellant must pay the equivalent value of the unreturned items.

SO ORDERED.
25


When the appellate court, in the adverted Resolution of J anuary 7,
2013,
26
denied his motion for reconsideration,
27
Viray interposed the present
petition asserting that the CA committed a reversible error in finding him
guilty. Petitioner harps on the supposed inconsistencies of the testimonies of
the prosecution witnesses in advancing his position that the evidence
presented against him fall short of the quantum of evidence necessary to
convict him of qualified theft.
28




20
Id. at 90.

21
Id. at 92.

22
Arresto mayor in its minimum and medium periods, if such value does not exceed 5 pesos.

23
Art. 310. Qualified theft.The crime of theft shall be punished by the penalties next higher by
two degrees than those respectively specified in the next preceding article x x x.

24
Rollo, pp. 95-96.

25
Id. at 14, 96-97.

26
Id. at 107-109.

27
Id. at 99-105.

28
Id. at 15-19.
Decision G.R. No. 205180

5
In the meantime, in its Comment
29
on the present petition, respondent
People of the Philippines asserts that the alleged inconsistencies in the
testimonies of the prosecution witnesses are so insignificant and do not
affect the credibility and weight of their affirmation that petitioner was at the
crime scene when the crime was committed.
30
In fact, these minor
inconsistencies tend to strengthen the testimonies because they discount the
possibility that they were fabricated.
31
What is more, so respondent
contends, these positive testimonies outweigh petitioners defense of denial
and alibi.
32


In resolving the present petition, We must reiterate the hornbook rule
that this court is not a trier of facts, and the factual findings of the trial court,
when sustained by the appellate court, are binding in the absence of any
indication that both courts misapprehended any fact that could change the
disposition of the controversy.
33


In the present controversy, while the CA modified the decision of the
trial court by convicting petitioner of qualified theft rather than robbery, the
facts as found by the court a quo were the same facts used by the CA in
holding that all the elements of qualified theft through grave abuse of
confidence were present. It is not, therefore, incumbent upon this Court to
recalibrate the evidence presented by the parties during trial.

Be that as it may, We find it necessary to modify the conclusion
derived by the appellate court from the given facts regarding the crime for
which petitioner must be held accountable.

Art. 308 in relation to Art. 310 of the RPC describes the felony of
qualified theft:

Art. 308. Who are liable for theft. Theft is committed by any
person who, with intent to gain but without violence against, or
intimidation of persons nor force upon things, shall take personal property
of another without the latters consent.

x x x x

Art. 310. Qualified Theft. The crime of theft shall be punished by
the penalties next higher by two degrees than those respectively specified
in the next preceding article, if committed by a domestic servant, or with
grave abuse of confidence, or if the property stolen is motor vehicle, mail
matter or large cattle or consists of coconuts taken from the premises of
the plantation, fish taken from a fishpond or fishery or property is taken on
the occasion of fire, earthquake, typhoon, volcanic eruption, or any other
calamity, vehicular accident or civil disturbance. (Emphasis supplied.)


29
Id. at 116-125.

30
Id. at 121-122.

31
Id. at 122.

32
Id. at 123.

33
People v. Domingo, G.R. No. 184958, September 17, 2009, 600 SCRA 280, 288; Gerasta v.
People, G.R. No. 176981, December 24, 2008, 575 SCRA 503, 512; People v. Lantano, G.R. No. 176734,
J anuary 28, 2008, 542 SCRA 640, 651-652.
Decision G.R. No. 205180

6
The crime charged against petitioner is theft qualified by grave abuse
of confidence. In this mode of qualified theft, this Court has stated that the
following elements must be satisfied before the accused may be convicted of
the crime charged:

1. Taking of personal property;
2. That the said property belongs to another;
3. That the said taking be done with intent to gain;
4. That it be done without the owners consent;
5. That it be accomplished without the use of violence or
intimidation against persons, nor of force upon things; and
6. That it be done with grave abuse of confidence.
34


As pointed out by both the RTC and the CA, the prosecution had
proved the existence of the first four elements enumerated above beyond
reasonable doubt.

First, it was proved that the subjects of the offense were all personal
or movable properties, consisting as they were of jewelry, clothing, cellular
phone, a media player and a gaming device. Second, these properties belong
to private complainant Vedua. Third, circumstantial evidence places
petitioner in the scene of the crime during the day of the incident, as
numerous witnesses saw him in Veduas house and his clothes were found
inside the house. He was thereafter seen carrying a heavy-looking sack as he
was leaving private complainants house. All these circumstances portray a
chain of events that leads to a fair and reasonable conclusion that petitioner
took the personal properties with intent to gain, especially considering that,
fourth, Vedua had not consented to the removal and/or taking of these
properties.

With regard to the fifth and sixths elements, however, the RTC and
the CA diverge in their respective Decisions.

The RTC found that the taking committed by petitioner was not
qualified by grave abuse of confidence, rather it was qualified by the use of
force upon things. The trial court held that there was no confidence reposed
by the private complainant on Viray that the latter could have abused. In
fact, Vedua made sure that she locked the door before leaving. Hence, Viray
was compelled to use force to gain entry into Veduas house thereby
committing the crime of robbery, not theft.

The CA, on the other hand, opined that the breaking of the screen and
the door could not be appreciated to qualify petitioners crime to robbery as
such use of force was not alleged in the Information. Rather, this breaking of
the door, the CA added, is an indication of petitioners abuse of the
confidence given by private complainant. The CA held that [Viray] enjoyed
the confidence of the private complainant, being the caretaker of the latters


34
People v. Puig, G.R. Nos. 173654-765, August 28, 2008, 563 SCRA 564.
Decision G.R. No. 205180

7
pets. He was given access to the outside premises of private complainants
house which he gravely abused when he forced open the doors of the same
house and stole the latters belongings.
35
Committing grave abuse of
confidence in the taking of the properties, petitioner was found by the CA to
be liable for qualified theft.

This Court is inclined to agree with the CA that the taking committed
by petitioner cannot be qualified by the breaking of the door, as it was not
alleged in the Information. However, we disagree from its finding that the
same breaking of the door constitutes the qualifying element of grave abuse
of confidence to sentence petitioner Viray to suffer the penalty for qualified
theft. Instead, We are one with the RTC that private complainant did not
repose on Viray confidence that the latter could have abused to commit
qualified theft.

The very fact that petitioner forced open the main door and screen
because he was denied access to private complainants house negates the
presence of such confidence in him by private complainant. Without ready
access to the interior of the house and the properties that were the subject of
the taking, it cannot be said that private complaint had a firm trust on
petitioner or that she relied on his discretion
36
and that the same trust
reposed on him facilitated Virays taking of the personal properties
justifying his conviction of qualified theft.

To warrant the conviction and, hence, imposition of the penalty for
qualified theft, there must be an allegation in the information and proof that
there existed between the offended party and the accused such high degree
of confidence
37
or that the stolen goods have been entrusted to the custody or
vigilance of the accused.
38
In other words, where the accused had never been
vested physical access to,
39
or material possession of, the stolen goods, it
may not be said that he or she exploited such access or material possession
thereby committing such grave abuse of confidence in taking the property.
Thus, in People v. Maglaya,
40
this Court refused to impose the penalty
prescribed for qualified theft when the accused was not given material
possession or access to the property:

Although appellant had taken advantage of his position in
committing the crime aforementioned, We do not believe he had acted
with grave abuse of confidence and can be convicted of qualified theft,
because his employer had never given him the possession of the
machines involved in the present case or allowed him to take hold of
them, and it does not appear that the former had any special
confidence in him. Indeed, the delivery of the machines to the prospective
customers was entrusted, not to appellant, but to another employee.


35
Rollo, p. 92.

36
BLACKS LAW DICTIONARY, 9
th
ed., for the iPhone/iPad/iPod touch. Version 2.1.1 (B12136), p.
339.

37
People v. Koc Song, 63 Phil. 369 (1936).

38
People v. Maglaya, No. L-29243, November 28, 1969, 30 SCRA 606.

39
See People v. Anabe, G.R. No. 179033, September 6, 2010, 630 SCRA 10.

40
Supra note 38.
Decision G.R. No. 205180

8
Inasmuch as the aggregate value of the machines stolen by
appellant herein is P13,390.00, the crime committed falls under Art. 308,
in relation to the first subdivision of Art.309 of the Revised Penal Code,
which prescribes the penalty of prisin mayor in its minimum and medium
periods. No modifying circumstance having attended the commission of
the offense, said penalty should be meted out in its medium period, or
from 7 years, 4 months and 1 day to 8 years and 8 months of prisin
mayor. The penalty imposed in the decision appealed from is below this
range. (Emphasis and underscoring supplied.)

The allegation in the information that the offender is a laborer of the
offended party does not by itself, without more, create the relation of
confidence and intimacy required by law for the imposition of the penalty
prescribed for qualified theft.
41
Hence, the conclusion reached by the
appellate court that petitioner committed qualified theft because he enjoyed
the confidence of the private complainant, being the caretaker of the latters
pets is without legal basis. The offended partys very own admission that
the accused was never allowed to enter the house
42
where the stolen
properties were kept refutes the existence of the high degree of confidence
that the offender could have allegedly abused by forc[ing] open the doors
of the same house.
43


Without the circumstance of a grave abuse of confidence and
considering that the use of force in breaking the door was not alleged in the
Information, petitioner can only be held accountable for the crime of simple
theft under Art. 308 in relation to Art. 309 of the RPC.

As for the penalty, We note with approval the observation made by
the appellate court that the amount of the property taken was not established
by an independent and reliable estimate. Thus, the Court may fix the value
of the property taken based on the attendant circumstances of the case or
impose the minimum penalty under Art. 309 of the RPC.
44
In this case, We
agree with the observation made by the appellate court in accordance with
the rule that if there is no available evidence to prove the value of the stolen
property or that the prosecution failed to prove it, the corresponding penalty
to be imposed on the accused-appellant should be the minimum penalty
corresponding to theft involving the value of P5.00.
45
Accordingly, We
impose the prescribed penalty under Art. 309(6) of the RPC, which is
arresto mayor in its minimum and medium periods. The circumstance of the
breaking of the door, even if proven during trial, cannot be considered as a
generic aggravating circumstance as it was not alleged in the Information.
46

Thus, the Court finds that the penalty prescribed should be imposed in its


41
Reyes, Luis B., THE REVISED PENAL CODE: CRIMINAL LAW 710 (15
th
ed., 2001).

42
Rollo, p. 40.

43
Id. at 92.

44
See People v. Dator, G.R. No. 136142, October 24, 2000, 344 SCRA 222; see also Lozano v.
People, G.R. No. 165582, J uly 9, 2010.

45
People v. Dator, id. at 236.

46
People v. Perreras, G.R. No. 139622, J uly 31, 2001, 362 SCRA 202; People v. Legaspi, G.R.
Nos. 136164-65, April 20, 2001.
Decision
9
G.R. No. 205180
medium period, that is to say, from two (2) months and one (1) day to three
(3) months of arresto mayor.
Lastly, We delete the order for the reparation of the stolen property.
Art. 2199 of the Civil Code is clear that "one is entitled to an adequate
compensation only for such pecuniary loss sutTered by him, as he has duly
proved." Since, as aforesaid, the testimony of the private complainant is not
sufficient to establish the value of the property taken, nor may the courts
take judicial notice of such testimony, We cannot award the reparation of the
stolen goods.
47
WHEREFORE, theCA Decision of August 31, 2012 in CA-G.R. CR
No. 33076 is AFFIRMED with MODIFICATION. Petitioner Ryan Viray
is found GUlL TV beyond reasonable doubt of SIMPLE THEFT and is
sentenced to suffer the penalty of imprisonment for two (2) months and one
( 1) day to three (3) months of arresto mayor. Further, for want of convincing
proof as to the value of the property stolen, the order for reparation is hereby
DELETED.
SO ORDERED.
J. VELASCO, JR.
47
Francisco r. People, 478 Phil. 167 (2004).
Decision
WE CONCUR:
10
I
ROBERTO A. ABAD
Associate Justice
G.R. No. 205180
..
,J('i'E
j Associate Justice
JOSE

'
ATTESTATION
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Court's Division.
. VELASCO, .JR.
CERTIFICATION
Pursuant to Section 13, A1iicle VIII of the Constitution and the
Division Chairperson's Attestation, I certify that the conclusions in the
above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO
Chief Justice