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SECOND DIVISION

A. M. No. P-96-1179 - October 10, 2003

Councilor WINSTON C. CASTELO, Petitioner, vs. Sheriff CRISTOBAL C. FLORENDO, Respondent.

R E S O L U T I O N

AUSTRIA-MARTINEZ, J.:

On December 11, 1995, Winston T. Castelo, Councilor of District II of Quezon City, filed a complaint before this Court charging Sheriff Cristobal C. Florendo of Regional Trial Court (RTC) of Quezon City with grave abusive acts, conduct unbecoming of a public officer and serious abuse of authority in the performance of duty and/or administration of justice.1cräläwvirtualibräry

Castelos complaint alleges two wrongful acts: first, that respondent sheriff, while in the process of implementing a writ of possession, detained and shot him causing serious injury to him; and second, respondent sheriff defied and disobeyed a court order.2cräläwvirtualibräry

Complainant narrates that on August 2, 1995 at around 7:30 in the morning, he received a call from Marlyne P. Guillermo, President of the Ladies Group Association and a resident of Veterans Village of District II, telling him that an eviction operation was about to take place in said area. Complainant went to the site and reached the area at around 9:30 in the morning. There he saw several people who were already very angry. Complainant talked to respondent sheriff and asked if the eviction could be postponed. The respondent answered "hindi pwede, hindi pwede", which response angered the crowd even more. Respondent then pulled out his gun and held complainant by the end of his shirt. Complainant asked respondent to put away his gun, but respondent refused. As the angry crowd came nearer, respondent sheriff pulled complainant backwards, tugging the end of his shirt, and poked a gun near respondents right hip. Complainant tried to free himself from the sheriffs hand but the latter told him "Putang ina mo ikaw and dahilan ng gulo rito." Respondent then shot him at the back which bullet also hit another person, Remigio Macalulot.3 Complainant was brought to Malvar Hospital Quezon City for treatment. The bullet entered his right buttock and exited at the left hip. The medical report noted injuries in the "GSM POE (R) Posterior Lumbar Area, POX (L) Glutal area outer quadrant with weak EHL bilateral xxx will incapacitate or require medical attendance for more than 30 days if without complication."4 Macalulot meanwhile was hit on his left hand.5 Complainants witness, Severino Sevilla, also said that after respondent fired his gun, he abandoned the complainant and took shelter at a nearby house.6cräläwvirtualibräry

In relation to said incident, the City Prosecutors Office filed an Information charging respondent with frustrated homicide for the shooting of complainant Castelo and attempted homicide for the wounding of Remigio Macalulot. The cases, docketed as Criminal Cases Nos. Q-95-62487 and Q-95-62488, were assigned to the RTC of Quezon City (Branch 104).7cräläwvirtualibräry

Anent the second alleged wrongful act, complainant avers that respondent sheriff, in the implementation of the writ, did not comply with the order issued by Judge Eduarlio B. Valencia of the RTC of Quezon City (Branch 222) which directed:

[t]he Sheriff(s) concernedto coordinate with the City Engineer and/or other appropriate local and national officials of Quezon City so as to ensure a just, equitable and orderly implementation of this writ of possession to be issued in virtue hereof.8cräläwvirtualibräry

In support of such claim, he presented certifications from the offices of the City Engineer, Register of Deeds, Peoples Bureau and the Special Task Force on Squatting and Relocation, stating that respondent did not coordinate with them for the implementation of the subject writ.9cräläwvirtualibräry

Respondent sheriff, in his Comment dated March 21, 1996, denies all the charges against him and insists that he acted lawfully in the performance of his duties. He further claims that the injuries inflicted on the complainant were caused by accident.10 According to him, he was trying to implement a writ of possession on August 2, 1995, at Freedom Street, Veterans Village with a small security group, composed of SPO3 Gilberto Grizola, PO2 Nestor Sancha, PO3 Mariano Gonzales, Mr. Jarvis Iconar, and Mr. Dante Ramos. Later, complainant Castelo and Brgy. Captain Benjamin Pedro arrived at the site followed by a huge crowd, numbering more than two hundred, some of whom were armed with clubs, lead pipes, knives and stones. Complainant and Pedro requested for a copy of the writ and a discussion ensued. Meanwhile, the crowd which followed the complainant started to surround respondents group. Complainant tried to pacify them but failed. Complainant then tried to leave respondents group which caused respondent to panic. Respondent then held complainant by the end of his shirt and said "Konsehal huwag mo kaming iwan dito at pigilan mo ang mga tao mo." Respondents left hand held complainant by his shirttail while his right hand had a gun pointed downward. Suddenly someone from respondents right side tried to stab him while another tried to wrestle the gun from his hand. The gun accidentally fired and complainant shouted, "Tumigil na kayo, may tama ako" and fell down. Respondent said that he tried to pull him up with his left hand and told the crowd to move back. However, the people started throwing stones at his group. Respondent then let go of complainant and ran for cover at a shanty together with SPO3 Grizola, Iconar and Ramos. Several persons followed and tried to attack them at the shanty which forced respondent and SPO3 Grizola to fire warning shots. The siege lasted for about 40 minutes and ended when they were rescued by a SWAT team. After resting at a secure place, respondent said he proceeded to Station 3, CPDC, in Quezon City to report the incident and surrender his gun. He was then detained and brought to the CID, CPDC, Camp Karingal, Quezon City.11cräläwvirtualibräry

Dante Ramos, a security guard who assisted respondent that day, Jarvis Iconar, an Aide of the RTC, Quezon City (Branch 99) and SPO3 Gilbert Grizola, a police officer of the Sangandaan Police Station who was tasked to give police assistance during the enforcement of said writ, submitted their individual sworn statements supporting respondents version of the facts.12cräläwvirtualibräry

Respondent, in his Counter-Affidavit which he submitted in connection with the criminal case and which was attached to the Comment, also explains that he and his men started to implement the writ on July 31, 1995. But they received resistance from the residents, hence they were only able to clear 18 out of the 35 lots, the possession of which was ordered by the trial court to be turned over to the petitioner in the civil case. On said date, the police was able to confiscate tear gas canisters, acid, sling shots, homemade clubs and lead pipes. Respondents group returned to Freedom Street on August 1, 1995 and was able to clear 3 more lots. On August 2, respondent went back to the site with a smaller security detail and labor force. It was on said day that respondent accidentally shot complainant and Macalulot.13cräläwvirtualibräry

As to the second wrongful act alleged by the complainant, respondent contends that there is no truth to the claim that he did not coordinate with local government offices in the implementation of the writ as directed by the court. He said he made a written request to Mayor Ismael Mathay on July 20, 1995 to dispatch several members of the CPDC to assist in ensuring the orderly implementation of the writ. Accordingly, Mayor Mathay approved said request and instructed General Ricardo De Leon to extend police assistance.14cräläwvirtualibräry

Complainant submitted a "Reaction to Respondents Comment" dated April 16, 1996 and avers that it is not true that someone tried to grab respondents gun. For if it were true, such person should have been arrested and brought to the police station for investigation. Complainant and another witness, Damian R. Jandayan, Jr. who took the pictures while respondent was holding the gun and yanking the complainant both claim that there was no one who tried to grab the gun from respondent.15 Complainant further states that it has been eight months since he started undergoing treatment for his wound.16cräläwvirtualibräry

In a Rejoinder dated July 5, 1996, respondent sheriff argues that the failure to apprehend the person who tried to grab his gun does not mean that such person does not exist. Also, there was too much violence and confusion that day which made it difficult to pinpoint the malefactor.17cräläwvirtualibräry

In a Resolution dated January 15, 1997, this Court referred the case to Executive Judge Estrellita T. Estrada of RTC, Quezon City for investigation, report and recommendation.18 Judge Estrada set the hearing of the investigation on several occasions but such settings were either postponed or re-set upon the agreement of the parties. Thus, complainant was not able to give his testimony against respondent sheriff.19 Upon expiration of Judge Estradas term, the case was referred to Executive Judge Monina A. Zeñarosa who inhibited herself from hearing the case for the reason that the counsel for the complainant was her colleague.20 The case was then re-assigned to 1st Vice-Executive Judge Demetrio B. Macapagal who also voluntarily inhibited himself because complainants counsel was his former superior in the Inquest Division and a colleague in the Office of the City Prosecutor at Quezon City.21 Finally, the case was raffled to Judge Lucas P. Bersamin who submitted his final report of the investigation in this case22 before he was appointed Associate Justice of the Court of Appeals.

In his Report, the Investigating Judge stated that he set the hearing of the instant case for several days. However, for various reasons, like power failure, agreement of the parties, emergency leave of the judge and failure to appear of one of the parties, no hearing was actually conducted.23cräläwvirtualibräry

Then, on January 14, 2003, complainant, assisted by his counsel, Atty. Isabelo Tomas, filed a Manifestation/Motion stating his desistance to pursue the case against the respondent sheriff.24 Complainant in his affidavit explained that he is withdrawing his complaint against respondent for the following reasons:

"the lapse of time since the happening of the incident seven (7) years ago has healed not only the wounds but the pain as well and all grievances has vanished in my heart. Moreover, before my father died on August 25, 2002, he told me he wants to see the cases, Criminal and Administrative that I filed against the accused, Cristobal Florendo dropped for the said accused was very close and dear to him. I want to honor his death wish.25cräläwvirtualibräry

Based on said Manifestation/Motion and Affidavit of Desistance, the investigating judge then recommended the dismissal of this administrative case against respondent sheriff.26cräläwvirtualibräry

In a Resolution dated April 28, 2003, this case was referred to the Office of the Court Administrator for its evaluation, report and recommendation.27cräläwvirtualibräry

On July 25, 2003, Deputy Court Administrator Christopher O. Lock submitted his report, portions of which read as follows:

As clearly shown in his report, Investigating Judge Lucas P. Bersamin anchored his recommendation to dismiss the instant case based on the Affidavit of Desistance executed by the complainant in favor of the respondent sheriff. However, in numerous cases decided by the Court, one of which is the case Jacob versus Tambo, 369 SCRA 148 (2001), the Court held that: "An affidavit of desistance will not automatically result to the dismissal of an administrative case or to the exoneration of respondent." Thus, despite said recommendation of the Investigating Judge, the instant case should not be automatically dismissed or result to vindication of respondent sheriff from administrative liability, if there is any.

This Office noted that while there are factual issues that should have been threshed out during the investigation, there are sufficient evidence in the pleadings and/or records on file that substantiate the claims of both parties. In fact, even in the absence of testimonial evidence, the following facts were undisputed by both parties, as follows:

1. That during the enforcement of the subject writ on 02 August 1995, respondent Sheriff was carrying a gun. And, that respondent sheriff had indeed held the shirttail of the complainant when the people in front of them, were approaching;

2. That during the same incident, respondent sheriff fired his gun (either accidental or intentional) which resulted to the shooting and consequential wounding of the complainant;

In the absence of the testimony of the complainant and his witnesses, there is no basis to determine whether or not respondent sheriffs contention was true that the said shooting was accidental in nature. The only issue that is left to be resolved in this case is the respondent sheriffs propriety of bringing a gun during the enforcement of the subject writ. Resolving this issue, will determine whether or not respondent sheriff had acted within the scope of his authority and/or conducted himself in a manner that is consistent with the exacting standards of a public officer.

Records revealed that prior to the implementation of the subject writ, respondent sheriff had requested from Mayor Ismael Mathay of Quezon City the necessary police assistance to ensure an orderly and peaceful implementation of the subject writ.

Thus, there is no doubt that respondent sheriff has a full complement in order to ensure an orderly service and enforcement of the subject writ. Since respondent sheriff was not criminally charged with illegal possession of firearms, it can be safely presumed that he was carrying a license/permit to carry and possess firearms.

Given, the foregoing circumstance and notwithstanding the complainants affidavit of desistance, which resulted in the dismissal of the criminal complaint for frustrated homicide and attempted homicide, this Office still finds respondent sheriff guilty of misconduct and conduct prejudicial to the best interest of the service for unnecessarily bringing a gun while performing his official duty of executing the subject writ of possession and by discharging the same gun, which resulted to serious injury or wounding of two (2) persons.

This Office finds that it is not necessary for respondent sheriff to be bringing along with him a gun during the implementation of the subject writ notwithstanding the fact that he may be duly licensed under the law to either possess or carry the same within or outside the premises of his home or of the court. The authority vested upon the respondent sheriff in executing the subject writ was to turn over the possession of the subject property to the plaintiff and to seek necessary assistance from local or national government agency to ensure peaceful implementation of the subject writ. Thus, respondent sheriffs authority is only limited to what was embodied in the said writ. Since the court may have anticipated danger in thelines of the court personnel during the implementation of the subject writ, it included the second order authorizing the respondent sheriff to seek necessary police assistance. Therefore, there could be no reason for respondent sheriff to be bringing along with him a firearm since the police officers and the SWAT team he requested are all armed. Their presence alone during the implementation is already an assurance to deter any danger or trouble that may arise. Respondent sheriffs carrying a gun was aggravated when if went off causing serious injury and wounding of two (2) persons, one of which is no less than the complainant himself who is the councilor of District II, Quezon City. Accidental firing or not, the fact remains that respondent sheriff seriously wounded two persons by unnecessarily carrying a gun while performing his official duty. Thus, it can be said that the respondent sheriff had arrogated upon himself such function which is not within the scope of his authority. Obviously, carrying a gun during the implementation of the subject writ is not one of his official functions. Thus, it is beyond the respondent sheriffs call of duty to carry the same especially if it is within the full view of the very persons who are suppose to carry out the mandate of a courts order. Since the people in the eviction site were obviously emotionally charged, the possibility of firing the gun is high. In order to prevent these possibilities, carrying of firearms should not be done in any event for it is the duty of the police officers and the SWAT team members to maintain peace and order and to protect the court personnel. These police officers are the ones who are authorized to carry and fire their guns when necessary and under the subject circumstance and not the respondent sheriff. In the first place, respondent sheriffs act of carrying the gun and displaying the same within the full view of the people who were supposed to lose their homes is already an act beyond the call of duty of an officer who is merely implementing a writ issue by the court. In the second place, the firing of the same gun whether accidental or intentional would aggravate the already serious situation.

Considering the foregoing, respondent sheriff had fallen short of the standard of conduct required of court employees. Thus, the Court will not tolerate such act particularly if done during the official performance of duty. Respondent sheriffs act endangered the lives of the complainant and another person within the vicinity of the eviction site. Respondent sheriffs act is a display of gross disrespect to the integrity of the court and erodes the image of the judiciary in the eyes of the public.

Under Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Rules, gross misconduct is considered a grave offense with the corresponding penalty of dismissal from the service for the 1st offense. However, considering that there was no finding that the firing of the gun of the respondent sheriff was intentional, such act may be considered as a simple misconduct as he failed to foresee the consequential act of carrying said firearm within the vicinity of the eviction site. Under the same rules, simple misconduct has a corresponding penalty of suspension for one (1) month and one (1) day to six (6) months for 1st offense and dismissal from the service for 2nd offense.

It appearing that respondent sheriff had been with the judiciary service for 32 years since his entry position as Court Stenographer in 1971 until he was promoted as Deputy Sheriff in 1984, and it being his first offense, this office recommends that respondent sheriff be meted with a penalty of SUSPENSION from the office for one (1) month without salary and benefits, effective immediately upon receipt of notice. 28 (Emphasis supplied)

We adopt the findings and recommendations of the OCA except for a slight modification of the penalty to be meted out against respondent Sheriff.

The affidavit of desistance of complainant Councilor Castelo cannot curtail this Court of its authority to ascertain the administrative liability of respondent and impose the corresponding penalty. This Court has an interest in the conduct and behavior of all officials and employees of the judiciary and in ensuring at all times the proper delivery of justice to the people.29 No affidavit of desistance can divest this Court of its jurisdiction under Section 6, Article VII of the Constitution to investigate and decide complaints against erring employees of the judiciary.30 The issue in an administrative case is not whether the complainant has a cause of action against the respondent, but whether the employees have breached the norms and standards of the courts.31cräläwvirtualibräry

Certainly, an administrative complaint against public officers or employees cannot be withdrawn at any time by the simple expediency of a complainants sudden change of mind.32 The people, whose faith and confidence in their government and its instrumentalities need to be maintained, should not be made to depend upon the whims and caprices of complainants who, in a real sense, are only witnesses. 33cräläwvirtualibräry

In this case, we find that there is no merit in the allegation of complainant that respondent defied and disobeyed a court order by not coordinating with the City Engineer, Register of Deeds, Peoples Bureau and Special Task Force on Squatting and Relocation in the implementation of the writ. The order directed the sheriff to coordinate with the City Engineer and/or other appropriate local and national officials. Records show that respondent sought the help of Quezon City Mayor Ismael Mathay. We deem such course of action to be sufficient.

However, respondent could not deny the fact that in the morning of August 2, 1995, he held a gun while implementing a writ and that he discharged said firearm and injured not only complainant but also Remigio Macalulot. He also could not deny that he pulled the shirt of complainant, an elected public official, and tried to prevent him from walking away from his group. These facts cannot be ignored.

Government employees particularly those employed in the judiciary are bound by the highest standards of propriety and decorum. A judicial office demands the best men and women in the service. No position demands greater moral righteousness and uprightness from its holder than those from the justice system.34 They are expected to be models of uprightness, fairness and honesty to maintain the peoples respect and faith in the judiciary. They should avoid any act or conduct that would be a bane to, and an emasculation of, the public trust and confidence reposed on the courts.35 Indeed, those connected with the dispensation of justice bear a heavy burden of responsibility.36cräläwvirtualibräry

As a sheriff, respondent is indispensably placed in close contact with the litigants. His conduct therefore should be geared towards maintaining the prestige and integrity of the court, for the image of the court of justice is necessarily mirrored in the conduct, official or otherwise, of the men and women who work thereat, from the judge to the least and lowest of its personnel.37chanroblesvirtuallawlibrary

We reiterate our pronouncements in Torres vs. Sicat, Jr.,38 to wit:

Sheriffs and deputy sheriffs, being ranking officers of the court and agents of the law, must discharge their duties with great care and diligence. In serving and implementing writs, as well as processes and orders of the court, they cannot afford to err without affecting adversely the proper dispensation of justice. Sheriffs, as public officers, are repositories of public trust and are under obligation to perform the duties of their office honestly, faithfully and to the best of their ability. Thus, high standards are expected of them.39cräläwvirtualibräry

In carrying a gun in the implementation of a writ, and in the consequent shooting of two persons, respondent is administratively liable. Respondent, as sheriff, must know what is inherently right and wrong, and is bound to act with prudence and caution in the enforcement of judgments and writs. He must also show at all times a high degree of professionalism in the performance of his duties.40cräläwvirtualibräry

While the authority of a sheriff is broad, it is not boundless. He must be circumspect and proper in his behavior in the enforcement of judgments and judicial orders. He is required to perform the duties of his office without needless severity or oppression as he is an agent of the law. In enforcing a writ, he must not exercise unnecessary violence.41cräläwvirtualibräry

In this case respondent already received the support of the mayor. He had at his disposal policemen who are trained and equipped in handling guns and maintaining peace. Clearly, there was no need for him to carry a firearm. His having done so and in causing injury to two persons as a result thereof, constitutes misconduct.

Misconduct has been defined as an unacceptable behavior that transgresses the established rules of conduct for public officers.42 In the case at hand, respondent sheriffs lack of prudence caused serious injury to two persons.

To qualify as grave misconduct, there must be showing that the erring employee acted with wrongful intentions or that his acts were corrupt or inspired by an intention to violate the law.

As we held in Imperial vs. Santiago43:

Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by the public officer. To warrant dismissal from the service, [however], the misconduct must be grave, serious, important, weighty, momentous and not trifling. The misconduct must imply wrongful intention and not a mere error of judgment. The misconduct must also have a direct relation to and be connected with the performance of his official duties amounting either to maladministration or willful, intentional neglect or failure to discharge the duties of the office. There must also be reliable evidence showing that the judicial acts complained of were corrupt or inspired by an intention to violate the law.44 (Emphasis supplied)

In the absence of evidence, respondents act of bringing a gun cannot be said to be motivated by corruption or willful intent to violate the law. Neither was his act of trying to prevent complainant to walk away completely groundless. Considering the circumstances surrounding this case, it is understandable that respondent would fear for his life. From the first day he tried to implement the writ, until the third day when the shooting took place, respondent and his men received great threat and resistance from the residents thereat.

For this reason, we find the respondent guilty of simple misconduct only. Civil Service Memorandum Circular No. 30, s. of 1989 classifies simple misconduct as a less grave offense carrying a penalty of one month and one day to six months for the first violation.45 Considering that this is respondents first offense in his 32 years of service and considering further that his act was not motivated by any corrupt or wrongful motive, we find that the imposition of the minimum penalty of suspension of one month and one day to be just and reasonable.

WHEREFORE, the Court finds Sheriff Cristobal C. Florendo GUILTY of SIMPLE MISCONDUCT. He is SUSPENDED from office for one (1) month and one (1) day without salary with a stern warning that a repetition of the same or similar acts of misconduct will be dealt with more severely.

SO ORDERED.

Bellosillo, (Chairman), Quisumbing, Callejo, Sr., and Tinga, JJ., concur.



Endnotes:

1 Rollo, p. 2.

2 Ibid.

3 Rollo, pp. 4-5.

4 Id., p. 47.

5 Id., p. 11.

6 Id., p. 11.

7 Id. p. 21.

8 Id., p. 42.

9 Id., pp. 14-16.

10 Rollo, p. 91.

11 Rollo, pp. 92-93.

12 Id., pp. 108-118.

13 Rollo, pp. 105-107.

14 Id., pp. 98, 126.

15 Id., p. 179.

16 Rollo, p. 181.

17 Id., pp. 190-191.

18 Id., p. 316.

19 Id., pp. 320-327.

20 Id., p. 358.

21 Rollo, p. 370.

22 Id., pp. 390-394.

23 Id., p. 392.

24 Ibid.

25 Id., pp. 386, 393.

26 Rollo, p. 394.

27 Id., p. 414.

28 Rollo, pp. 422-425.

29 Baikong Akang Camsa vs. Judge Rendon, A.M. No. MTJ-02-1395, March 28, 2003.

30 Licudine vs. Saquilayan, A.M. No. P-02-1618, February 14, 2003.

31 Mamaclay vs. Francisco, A.M. No. P-02-1607, March 17, 2003.

32 Nones vs. Ormita, A.M. No. P-01-1532, October 9, 2002.

33 Guro vs. Doronio, A.M. No. 2002-6-SC, February 5, 2003.

34 Nones vs. Omita, A.M. No. P-01-1532, October 9, 2002.

35 Mamaclay vs. Francisco, A.M. No. P-02-1607, March 17, 2003.

36 Nones vs. Omita, A.M. No. P-01-1532, October 9, 2002.

37 Imperial vs. Santiago, A.M. No. P-01-1449, February 24, 2003.

38 A.M. No. P-00-1379, September 19, 2002.

39 Ibid.

40 Malbas vs. Blanco, A.M. No. P-99-1350, 372 SCRA 118, 126 (2001).

41 Philippine Bank of Communications vs. Torio, A.M. No. P-98-1260, 284 SCRA 67, 76 (1998).

42 OCA vs. Nitafan, A.M. No. P-03-1679, June 16, 2003.

43 A.M. No. P-01-1449, February 24, 2003.

44 Ibid.

45 Albano-Madrid vs. Apolonio, A.M. No. P-01-1517, February 7, 2003; Circular No. 30-91 provides:

(1) Disciplinary matters involving light offenses as defined under the Civil Service Law (Administrative Code of 1987, and the Code of Conduct and Ethical Standards for Public Officials and Employees (Rep. Act. 6713) where the penalty is reprimand, suspension for not more than thirty days, or a fine not exceeding thirty days salary, and as classified in Civil Service Resolution No. 30, Series of 1989, shall be acted upon by the appropriate supervisory official of the lower court concerned. (Emphasis supplied).





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