January 11, 2016

G.R. No. 201310

MARK REYNALD MARASIGAN y DEGUZMAN, Petitioner,

vs.
REGINALD FUENTES ALIAS "REGIE," ROBERT CALILAN ALIAS "BOBBY," AND ALAIN
DELON LINDO, Respondents.

DECISION

LEONEN, J.:

This resolves a Petition  for Review on Certiorari under Rule 45 of the Rules of Court praying that (1)
1

the August 19, 2011 Decision  and the February 21, 2012 Resolution  of the Court of Appeals in CA-
2 3

G.R. SP No. 113116 be reversed and set aside and (2) the September 2, 2009 Resolution  rendered
4

by then Department of Justice Undersecretary Linda L. Malenab-Hornilla (Undersecretary Malenab-

Homilla) be reinstated.5

The assailed August 19, 2011 Decision of the Court of Appeals dismissed the Petition for Certiorari
under Rule 65 of the Rules of Court filed by petitioner Mark Reynald Marasigan (Marasigan) and
affirmed the February 8, 2010 Resolution  of then Department of Justice Secretary Agnes VST
6

Devanadera (Secretary Devanadera).  The assailed February 21, 2012 Resolution of the Court of
7

Appeals denied Marasigan’s Motion for Reconsideration. 8

The February 8, 2010 Resolution of Secretary Agnes VST Devanadera reversed and set aside
Undersecretary Linda L. Malenab-Hornilla’s September 2, 2009 Resolution and dismissed the
criminal complaints against respondents Reginald Fuentes (Fuentes) and Alain Delon Lindo (Lindo)
and found probable cause to charge respondent Robert Calilan (Calilan) with only less serious
physical injuries.  Undersecretary Malenab-Hornilla’s September 2, 2009 Resolution partially granted
9

Marasigan’s Petition for Review and directed the filing of informations for attempted murder against
Fuentes, Calilan, and Lindo. 10

Per Marasigan’s allegations, on December 20, 2006 at about 3:00 a.m., while he was walking on his
way home along Hebrew Street, Adelina I Subdivision, Barangay San Antonio, San Pedro, Laguna,
and after he had passed by Fuentes’ house where some merrymaking had been ongoing, Marasigan
felt someone throw an object at him from behind. Turning around, he saw Fuentes, who, upon
noticing that he had been seen, disappeared. A witness, Jefferson Pablo (Pablo), spoke with
Marasigan and confirmed that it was Fuentes who threw an object at him. 11

While he and Pablo were speaking, Fuentes reappeared with Calilan and Lindo, as well as with
another unidentified individual. Fuentes suddenly punched Marasigan on the face, making his nose
bleed. Calilan and Lindo also hit him while their unidentified companion sought to stop them.
Fuentes picked up a stone (i.e., piece of a hollow block) and attempted to hit Marasigan’s head with
it. Marasigan parried the stone with his hand, causing his hand to fracture. Fuentes again picked up
the stone. Lindo and Calilan took hold of each of Marasigan’s arms. Several more men who were in
Fuentes’ home joined in the assault. 12

Sensing that Fuentes, Calilan, and Lindo were determined to crush him with hollow blocks from a
nearby construction site, Marasigan shouted for help. Gregoria Pablo, Jefferson Pablo’s mother,
came rushing out of their house and tried to pacify Fuentes, Calilan, and Lindo. They, however,
continued to assault Marasigan. It was only upon the arrival of neighbors Marcelo Maaba and Lauro
Agulto that Fuentes, Calilan, and Lindo ceased their assault and fled.13

Assisted by his parents, Marasigan submitted himself to two (2) medico-legal examinations, and an
x-ray examination. He also filed reports/complaints in the barangay hall and police station. On
December 28, 2006, he formally filed a criminal complaint for frustrated murder against Fuentes,
Calilan, Lindo, and one John Doe before Assistant Provincial Prosecutor Milaflor Tan Mancia. 14

After conducting preliminary investigation, Assistant Provincial Prosecutor Christopher R. Serrano

(Assistant Provincial Prosecutor Serrano) issued the Resolution  dated August 16, 2007 finding
15

probable cause for charging Fuentes and Calilan with less serious physical injuries and clearing
Lindo of any liability.  He reasoned that there were no qualifying circumstances to support a charge
16

for murder. He added that the injuries suffered by Marasigan, including his fractured finger, required
a healing period of not more than 30 days. 17

Aggrieved, Marasigan filed a Petition for Review before the Department of Justice. He argued that
the medical findings made on him as well as the qualifying circumstance of abuse of superior
strength justified prosecution for frustrated murder. He added that Lindo’s acts were unambiguous
and indicated his participation in a design to kill him. 18

In the Resolution dated September 2, 2009, Undersecretary Malenab-Hornilla partially granted

Marasigan’s Petition for Review and ordered the provincial prosecutor of Laguna to file informations
for attempted murder against Fuentes, Calilan, and Lindo. Undersecretary Malenab-Hornilla faulted
Assistant Provincial Prosecutor Serrano for relying on the medico-legal findings to the exclusion of
other evidence. She reasoned that Fuentes, Calilan, and Lindo’s acts, as recounted by the
witnesses Gregoria Pablo, Marcelo Maaba, and Lauro Agulto, indicated a design to kill Marasigan,
which was only stymied by these witnesses’ arrival.  She added, however, that precisely because of
19

the arrival of these witnesses, Fuentes, Calilan, and Lindo failed to complete "all the punching,
kicking and stoning needed to kill [Marasigan]."  Thus, they could not be charged with frustrated
20

murder, but only with attempted murder. 21

Fuentes, Calilan, and Lindo filed their Motion for Reconsideration to Undersecretary Malenab-
Hornilla’s Resolution. 22

While the Motion for Reconsideration of Fuentes, Calilan, and Lindo was pending, the Provincial
Prosecutor’s Office filed the Information  for attempted murder before Branch 93, Regional Trial
23

Court, San Pedro, Laguna.

On February 8, 2010, Secretary Devanadera issued a Resolution on Fuentes, Calilan, and Lindo’s
Motion for Reconsideration. This Resolution absolved Fuentes and Lindo of liability and deemed that
Calilan could only be charged with less serious physical injuries. Secretary Devanadera cited with
approval Assistant Provincial Prosecutor Serrano’s statement in his own Resolution that there was
no sufficient showing, or "clear and convincing evidence to prove that the herein respondents
collectively intended to kill [Marasigan]."
24

Aggrieved, Marasigan filed a Petition for Certiorari under Rule 65 of the Rules of Court before the
Court of Appeals.25

In its assailed August 19, 2011 Decision, the Court of Appeals dismissed Marasigan’s Petition for
Certiorari. In its assailed February 21, 2012 Resolution, the Court of Appeals denied Marasigan’s
Motion for Reconsideration.
Hence, this Petition was filed.

For resolution is the sole issue of the proper crime, if any, for which any or all of the respondents
must stand trial.

Petitioner comes to us via a Petition for Review on Certiorari under Rule 45 of the Rules of Court
following the denial by the court of appeals of his Petition for Certiorari under Rule 65, the errors
which are properly correctible by each remedy are settled:

In a petition for certiorari, the jurisdiction of the court is narrow in scope. It is limited to resolving only
errors of jurisdiction. It is not to stray at will and resolve questions or issues beyond its competence
such as errors of judgment. Errors of judgment of the trial court are to be resolved by the appellate
court in the appeal by and of error or via a petition for review on certiorari in this Court under Rule 45
of the Rules of Court. Certiorari will issue only to correct errors of jurisdiction. It is not a remedy to
correct errors of judgment. An error of judgment is one in which the court may commit in the exercise
of its jurisdiction, and which error is reversible only by an appeal. Error of jurisdiction is one where
the act complained of was issued by the court without or in excess of jurisdiction and which error is
correctible only by the extraordinary writ of certiorari. Certiorari will not be issued to cure errors by
the trial court in its appreciation of the evidence of the parties, and its conclusions anchored on the
said findings and its conclusions of law. As long as the court acts within its jurisdiction, any alleged
errors committed in the exercise of its discretion will amount to nothing more than mere errors of
judgment, correctible by an appeal or a petition for review under Rule 45 of the Rules of Court. 26

The present, Rule 45 Petition calls upon us to examine whether the Court of Appeals committed an
error of judgment in resolving the question of whether Secretary Devanadera committed grave
abuse of discretion, amounting to lack or excess of jurisdiction in concluding the respondents ought
to stand trial only for the charge of less serious physical injuries. In her capacity as Secretary of
Justice, Secretary Devanadera was well within her jurisdiction to rule on the Petition for Review filed
with the Department of Justice. She is, however, not at liberty to flagrantly disregard the evidence
and the records and to insist on conclusions that stray dismally far from what the evidence warrants.
Neither is she at liberty to disregard evidentiary principles established in jurisprudence.

It is basic that petitions for review on certiorari under Rule 45 may only raise pure questions of
law  and that findings of fact are generally binding and conclusive on this court. Nevertheless, there
27

are recognized exceptions that will allow this court to overturn the factual findings confronting it.
These exceptions are the following:

(1) When the conclusion is a finding grounded entirely on speculation, surmises and
conjectures;

(2) When the inference made is manifestly mistaken, absurd or impossible;

(3) Where there is a grave abuse of discretion;

(4) When the judgment is based on a misapprehension of facts;

(5) When the findings of fact are conflicting;

 (6) When the Court of Appeals, in making its findings, went beyond the issues of the case
and the same is contrary to the admissions of both appellant and appellee;

(7) When the findings are contrary to those of the trial court;

(8) When the findings of fact are conclusions without citation of specific evidence on which
they are based;

(9) When the facts set forth in the petition as well as in the petitioners’ main and reply briefs
are not disputed by the respondents; and

(10) When the findings of fact of the Court of Appeals are premised on the supposed
absence of evidence and contradicted by the evidence on record. 28

Moreover, in Rule 45 petitions, which are appeals from petitions for certiorari under Rule 65, the
appealed ruling may be reversed and its factual moorings rejected if it can be shown that, in
rendering the act originally subject of the Rule 65 petition, "the tribunal acted capriciously and
whimsically or in total disregard of evidence material to the controversy[.]"29

A careful review of this case and of the evidence that were available for the prosecutors’ and the
Department of Justice’s appreciation will reveal that there was a gross misapprehension of facts on
the part of Assistant Provincial Prosecutor Serrano and Secretary Devanadera. It was, therefore,
grave abuse of discretion for Secretary Devanadera to conclude that respondent Calilan may only be
prosecuted for the crime of less serious physical injuries while his co-respondents, Fuentes and
Lindo, may not be prosecuted at all.

II

Secretary Devanadera was in grave error in citing with approval Assistant Provincial Prosecutor
Serrano’s having faulted petitioner for lack of "sufficient s[h]owing, [o]r clear and convincing
evidence to prove that the herein respondents collectively intended to kill [petitioner]." 30

Assistant Provincial Prosecutor Serrano’s Resolution was issued pursuant to a preliminary

investigation. Preliminary investigation "ascertains whether the offender should be held for trial or be
released."  It inquires only into the existence of probable cause: a matter which rests on likelihood
31

rather than on certainty. It relies on common sense rather than on "clear and convincing evidence":

Probable cause, for the purpose of filing a criminal information, has been defined as such facts as
are sufficient to engender a well-founded belief that a crime has been committed and that
respondent is probably guilty thereof. The term does not mean "actual and positive cause" nor does
it import absolute certainty. It is merely based on opinion and reasonable belief. Probable cause
does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is
enough that it is believed that the act or omission complained of constitutes the offense charged.

A finding of probable cause needs only to rest on evidence showing that more likely than not a crime
has been committed by the suspects. It need not be based on clear and convincing evidence of
guilt, not on evidence establishing guilt beyond reasonable doubt, and definitely not on evidence
establishing absolute certainty of guilt. In determining probable cause, the average man weighs facts
and circumstances without resorting to the calibrations of the rules of evidence of which he has no
technical knowledge. He relies on common sense. What is determined is whether there is sufficient
ground to engender a well-founded belief that a crime has been committed, and that the accused is
probably guilty thereof and should be held for trial. It does not require an inquiry as to whether there
is sufficient evidence to secure a conviction.  (Emphasis supplied, citations omitted)
32

III

Secretary Devanadera is of the conclusion that "[t]he evidence is equivocal on whether respondents
had any homicidal intent in engaging in a scuffle with the complainant."  In so doing, she makes
33

much of how "[t]he physical evidence starkly fails to demonstrate any homicidal motive[.]"  She goes
34

so far as to virtually discredit the other available evidence vis-à-vis physical evidence, saying that
"[p]hysical evidence is evidence of the highest order and speaks more eloquently than a hundred
witnesses."35

Specifically, Secretary Devanadera pointed out that the medico-legal findings  indicated that
36

petitioner sustained nothing more than contusions and abrasions;  and that while he suffered a
37

fracture on the metacarpal bone on the second digit of his right hand,  it was found that his injuries
38

would take less than 30 days to heal. 39

We disagree with this appreciation.

In Rivera v. People,  this court noted that the fact that the wounds sustained by the victim were
40

merely superficial and not fatal did not negate the liability of the accused for attempted murder.  The
41

attack on the victim in Rivera was described as follows:

In the present case, the prosecution mustered the requisite quantum of evidence to prove the intent
of petitioners to kill Ruben. Esmeraldo and Ismael pummeled the victim with fist blows. Even as
Ruben fell to the ground, unable to defend himself against the sudden and sustained assault of
petitioners, Edgardo hit him three times with a hollow block. Edgardo tried to hit Ruben on the head,
missed, but still managed to hit the victim only in the parietal area, resulting in a lacerated wound
and cerebral contusions. 42

The circumstances in Rivera are starkly similar with (though not entirely the same as) those in this
case. As in Rivera, several assailants took part in pummeling petitioner, and efforts were made to hit
his head with stones or pieces of hollow blocks. A difference is that, in this case, petitioner managed
to parry an attempted blow, thereby causing a fracture in his right hand, instead of a more serious
and, possibly fatal, injury on his head.

In any case, the fact that petitioner was successful in blocking the blow with his hand does not, in
and of itself, mean that respondents could not have possibly killed him. It does not negate any
homicidal intent. It remains that respondent Fuentes attempted to hit petitioner on the head with a
hollow block while respondents Calilan and Lindo made efforts to restrain petitioner.

There is also reasonable basis for appreciating how the attack on petitioner was made with
respondents taking advantage of their numerical superiority. Relevant portions of the witnesses’
sworn statements are reproduced, as follows:

1. Marcelo T. Maaba

Na, pagkalabas ko ay nakita ko na may binubugbog ang apat na katao at nakilala ko ang isa na
nagngangalang BOBBY CALILAN, nasa hustong gulang, binata, at dating nakatira sa Block 11[,]
Adelina I, San Antonio, San Pedro, Laguna, at ang binubugbog nila aysi [sic] Mark Reynald
Marasigan.
Na, sinigawan po namin (kasama si Lauro Agulto, Gregorio [sic] at Jeff Pablo) ang mga
nambubugbog kaya[’]t agad naman nila itong iniwan si Mark na duguan ang mukha at damit. 43

2. Lauro M. Agulto

Maya-maya pa ay biglang sumugod ang grupo [ni] BOBBY CALILAN, nasa hustong gulang, binata
at dating nakatira sa Block 11[,] Adelina I, kasama ang pitong iba pa na hindi ko kilala at pinag-
gugulpi si Mark hanggang sa bumagsak ito. Lumapit si Ate Boyang sa mga nanggugulpi upang
umawat ngunit nagulat ito sa biglang pagdami ng grupo ni Bobby kaya’t napaatras si Ate Boyang at
na out-balance at napatumba. Sa tagpong ito ay lumabas ako upang tulungan si Ate Boyang;

Na, pagkalabas ko ay nakatagilid pahiga si Mark sa kalsada at nang papalapit na ako ay tinadyakan
pa ito ng isa pa, nakita ko rin na pinagtutulungan itong si Mark suntukin at sipain ng grupo ni Bobby
kasama ang pitong iba pa.  (Emphasis supplied)
44

3. Gregoria F. Pablo

Na, noong mga ganap na ika 3:00 ng madaling araw, nakita ko ang anak ng aking kapitbahay na si
Macmac (M[a]rk Reynald G. Marasigan) na kausap ang aking anak na si Jeff. Narinig ko na siya ay
binato ng napakalaki sa likod at matinding nasaktan. Noon ay nasa tapat ng bahay ang aking anak
na magsisimbang gabi. Lumabas ako at alamin ang pangyayari at yayaing pumasok na sa loob ng
aming bahay upang gamutin si Macmac. Subalit bigla na lamang su[m]ugod [a]ng apat na lalaki at
sabay sabay na sinaktan si Macmac. Marami pang nagdatingan sumusugod na matataas at
malalaking kalalakihan na tumulong pa sa pambubugbog kay Macmac. Naglakas loob ako na
umawat dahil sa pag aakalang igagalang nila ako. Ngunit ako ay kanilang itinulak na sanhi ng aking
pagkatilapon at pagkasubsub at nasugatan. . . . Nakita ko na balak na nilang patayin si Macmac
dahil habang pinipigil ko ang iba, ay nakita ko na hinihila pa siya ng mga anim o pitong malalaking
kalalakihan habang nakahandusay na at sabay-sabay pa siyang sinasaktan. 45

From these, it is discernible that respondents took advantage of their superior strength or otherwise
employed means to weaken petitioner’s defense. With this qualifying circumstance, there is ample
basis for pursuing respondents’ prosecution for murder, albeit not in its consummated stage. 1âwphi1

Similarly, it is apparent that respondents acted out of a common design and, thus, in conspiracy.

It is settled that direct proof of conspiracy is not imperative and that conspiracy may be inferred from
acts of the perpetrators. As explained in People v. Amodia: 46

Conspiracy exists when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it. It arises on the very instant the plotters agree, expressly or impliedly,
to commit the felony and forthwith decide to pursue it. It may be proved by direct or circumstantial
evidence.

Direct proof of conspiracy is rarely found; circumstantial evidence is often resorted to in order to
prove its existence. Absent of any direct proof, as in the present case, conspiracy may be deduced
from the mode, method, and manner the offense was perpetrated, or inferred from the acts of the
accused themselves, when such acts point to a joint purpose and design, concerted action, and
community of interest. An accused participates as a conspirator if he or she has performed some
overt act as a direct or indirect contribution in the execution of the crime planned to be committed.
The overt act may consist of active participation in the actual commission of the crime itself, or it may
consist of moral assistance to his co-conspirators by being present at the commission of the crime,
or by exerting moral ascendancy over the other co-conspirators. Stated otherwise, it is not essential
that there be proof of the previous agreement and decision to commit the crime; it is sufficient that
the malefactors acted in concert pursuant to the same objective.  (Citations omitted)
47

Thus, it has been held that a perpetrator’s act of holding the victim’s hand while another perpetrator
is striking a blow is indicative of conspiracy, as People v. Amodia, citing People v. Manalo,  notes:
48

In People v. Manalo, we declared that the act of the appellant in holding the victim’s right hand while
the latter was being stabbed constituted sufficient proof of conspiracy:

Indeed, the act of the appellant of holding the victim’s right hand while the victim was being stabbed
by Dennis shows that he concurred in the criminal design of the actual killer. If such act were
separate from the stabbing, appellant’s natural reaction should have been to immediately let go of
the victim and flee as soon as the first stab was inflicted. But appellant continued to restrain the
deceased until Dennis completed his attack.  (Citation omitted)
49

In this case, petitioner averred that respondents Calilan and Lindo took hold of each of his arms
while respondent Fuentes was about to strike him with a hollow block. It is, therefore, apparent that
all three of them acted out of a common design as is indicative of a conspiracy.

We sustain the conclusion of Undersecretary Malenab-Hornilla that there is basis for prosecuting
respondents for murder in its attempted, and not in its frustrated, stage.

The stages of commission of felonies are provided in Article 6 of the Revised Penal Code:

ARTICLE 6. Consummated, Frustrated, and Attempted Felonies. — Consummated felonies, as well

as those which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and accomplishment are
present; and it is frustrated when the offender performs all the acts of execution which would
produce the felony as a consequence but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator.

There is an attempt when the offender commences the commission of a felony directly by overt acts,
and does not perform all the acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance.

Rivera v. People discussed the elements that are determinative of a felony’s having reached (only)
the attempted stage:

The essential elements of an attempted felony are as follows:

1. The offender commences the commission of the felony directly by overt acts;

2. He does not perform all the acts of execution which should produce the felony;

3. The offender's act be not stopped by his own spontaneous desistance;

4. The non-performance of all acts of execution was due to cause or accident other than his
spontaneous desistance.
The first requisite of an attempted felony consists of two elements, namely:

(1) That there be external acts;

(2) Such external acts have direct connection with the crime intended to be
committed.  (Citations omitted)
50

In this case, petitioner alleged that respondents coordinated in assaulting him and that this assault
culminated in efforts to hit his head with a stone or hollow block. Had respondents been successful,
they could have dealt any number of blows on petitioner. Each of these could have been fatal, or,
even if not individually so, could have, in combination, been fatal. That they were unable to inflict
fatal blows was only because of the timely arrival of neighbors who responded to the calls for help
coming from petitioner and witnesses Marcelo Maaba, Lauro M. Agulto, and Gregoria F. Pablo.

WHEREFORE, the Petition for Review on Certiorari is GRANTED. The August 19, 2011 Decision
and the February 21, 2012 Resolution of the Court of Appeals in CA-G.R. SP No. 113116
are REVERSED and SET ASIDE. The September 2, 2009 Resolution rendered by former
Department of Justice Undersecretary Linda L. Malenab-Homilla is REINSTATED.

The Provincial Prosecutor of Laguna is directed to enforce the same September 2, 2009 Resolution
with dispatch.

SO ORDERED.