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SECOND DIVISION

[G.R. No. 135784. December 15, 2000

RICARDO FORTUNA Y GRAGASIN, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

BELLOSILLO, J .: chanrobles virtual law library

Perhaps no other profession in the country has gone through incessant maligning by the public in general than its own police force. Much has been heard about the notoriety of this profession for excessive use and illegal discharge of power. The present case is yet another excuse for such vilification. chanrobles virtual law library

On 21 July 1992 at about 5:00 oclock in the afternoon, while Diosdada Montecillo and her brother Mario Montecillo were standing at the corner of Mabini and Harrison Streets waiting for a ride home, a mobile patrol car of the Western Police District with three (3) policemen on board stopped in front of them. The policeman seated on the right at the front seat alighted and without a word frisked Mario. He took Marios belt, pointed to a supposedly blunt object in its buckle and uttered the word "evidence."¹ Then he motioned to Mario to board the car. The terrified Mario obeyed and seated himself at the back together with another policeman. Diosdada instinctively followed suit and sat beside Mario. chanrobles virtual law library

They cruised towards Roxas Boulevard. The driver then asked Mario why he was carrying a "deadly weapon," to which Mario answered, "for self-defense since he was a polio victim."[2 The driver and another policeman who were both seated in front grilled Mario. They frightened him by telling him that for carrying a deadly weapon outside his residence he would be brought to the Bicutan police station where he would be interrogated by the police, mauled by other prisoners and heckled by the press. As they approached Ospital ng Maynila, the mobile car pulled over and the two (2) policemen in front told the Montecillos that the bailbond for carrying a "deadly weapon" was P12,000.00. At this point, the driver asked how much money they had. Without answering, Mario gave his P1,000.00 to Diosdada who placed the money inside her wallet. chanrobles virtual law library

Diosdada was then made to alight from the car. She was followed by the driver and was told to go behind the vehicle. There, the driver forced her to take out her wallet and rummaged through its contents. He counted her money. She had P5,000.00 in her wallet. The driver took P1,500.00 and left her P3,500.00. He instructed her to tell his companions that all she had was P3,500.00. While going back to the car the driver demanded from her any piece of jewelry that could be pawned. Ruefully, she removed her wristwatch and offered it to him. The driver declined saying, "Never mind,"³ and proceeded to board the car. Diosdada, still fearing for the safety of her brother, followed and sat beside him in the car. chanrobles virtual law library

Once in the car, Diosdada was directed by the policeman at the front passenger seat to place all her money on the console box near the gearshift. The car then proceeded to Harrison Plaza where the Montecillos were told to disembark. From there, their dreadful experience over, they went home to Imus, Cavite. chanrobles virtual law library

The following day Diosdada recounted her harrowing story to her employer Manuel Felix who readily accompanied her and her brother Mario to the office of General Diokno where they lodged their complaint. Gen. Diokno directed one of his men, a certain Lt. Ronas, to assist the complainants in looking for the erring policemen. They boarded the police patrol car and scoured the Mabini area for the culprits. They did not find them. chanrobles virtual law library

When they returned to the police station, a line-up of policemen was immediately assembled. Diosdada readily recognized one of them as the policeman who was seated beside them in the back of the car. She trembled at the sight of him. She then rushed to Lt. Ronas and told him that she saw the policeman who sat beside them in the car. He was identified by Lt. Ronas as PO2 Ricardo Fortuna. A few minutes later, Gen. Diokno summoned the complainants. As they approached the General, they at once saw PO2 Eduardo Garcia whom they recognized as the policeman who frisked Mario. The following day, they met the last of their tormentors, the driver of the mobile car who played heavily on their nerves - PO3 Ramon Pablo. chanrobles virtual law library

The three (3) policemen were accordingly charged with robbery. After trial, they were found guilty of having conspired in committing the crime with intimidation of persons. They were each sentenced to a prison term of six (6) years and one (1) day to ten (10) years of prision mayor, to restitute in favor of private complainants Diosdada Montecillo and Mario Montecillo the sum of P5,000.00, and to indemnify them in the amount of P20,000.00 for moral damages and P15,000.00 for attorneys fees.⁴ chanrobles virtual law library

The accused separately appealed to the Court of Appeals. On 31 March 1997 the appellate court affirmed the lower court's verdict.[5 Accused-appellant Ricardo Fortuna moved for reconsideration but the motion was denied. Hence, this petition by Fortuna alone under Rule 45 of the Rules of Court. He contends that the appellate court erred in holding that private complainants gave the money to the accused under duress, the same being negated by the prosecutions evidence, and in affirming the decision of the court below. He argued that the evidence presented by the prosecution did not support the theory of conspiracy as against him.⁶ chanrobles virtual law library

The issues raised by accused-appellant, as correctly observed by the Solicitor General, are purely factual. We have consistently stressed that in a petition for review on certiorari this Court does not sit as an arbiter of facts. As such, it is not our function to re-examine every appreciation of facts made by the trial and appellate courts unless the evidence on record does not support their findings or the judgment is based on a misappreciation of facts.[7 The ascertainment of what actually happened in a controverted situation is the function of the lower courts. If we are to re-examine every factual finding made by them, we would not only be prolonging the judicial process but would also be imposing upon the heavily clogged dockets of this Court. chanrobles virtual law library

We do not see any infirmity in the present case justifying a departure from this well-settled rule. On the contrary, we are convinced that the trial and appellate courts did not err in holding that accused-appellant Fortuna conspired with the accused Pablo and Garcia in intimidating private complainants to give them their money. chanrobles virtual law library

We are convinced that there was indeed sufficient intimidation applied on the offended parties as the acts performed by the three (3) accused, coupled with the circumstances under which they were executed, engendered fear in the minds of their victims and hindered the free exercise of their will. The three (3) accused succeeded in coercing them to choose between two (2) alternatives, to wit: to part with their money or suffer the burden and humiliation of being taken to the police station. chanrobles virtual law library

To our mind, the success of the accused in taking their victims' money was premised on threats of prosecution and arrest. This intense infusion of fear was intimidation, plain and simple. chanrobles virtual law library

Accused-appellant further argues that assuming arguendo that the element of intimidation did exist, the lower court erred in holding that he conspired with his companions in perpetrating the offense charged. chanrobles virtual law library

This indeed is easy to assert, for conspiracy is something which exists only in the minds of the conspirators, which can easily be denied. However, conspiracy may be detected and deduced from the circumstances of the case which when pieced together will indubitably indicate that they form part of a common design to commit a felony; and, to establish conspiracy, it is not essential that there be actual proof evincing that all of the conspirators took a direct part in every act, it being sufficient that they acted in concert pursuant to the same objective.⁸ chanrobles virtual law library

In the present case, accused-appellant would want to impress upon this Court that his silence inside the car during Marios interrogation confirmed his claim that he did not participate in the offense. chanrobles virtual law library

We do not agree. As a police officer, it is his primary duty to avert by all means the commission of an offense. As such, he should not have kept his silence but, instead, should have protected the Montecillos from his mulcting colleagues. This accused-appellant failed to do. His silence then could only be viewed as a form of moral support which he zealously lent to his co-conspirators. chanrobles virtual law library

In one case, we ruled that in conspiracy all those who in one way or another helped and cooperated in the consummation of a felony were co-conspirators.[9 Hence, all of the three (3) accused in the present case should be held guilty of robbery with intimidation against persons. chanrobles virtual law library

We however observe that the courts below failed to appreciate the aggravating circumstance of "abuse of public position."¹⁰ The mere fact that the three (3) accused were all police officers at the time of the robbery placed them in a position to perpetrate the offense. If they were not police officers they could not have terrified the Montecillos into boarding the mobile patrol car and forced them to hand over their money. Precisely it was on account of their authority that the Montecillos believed that Mario had in fact committed a crime and would be brought to the police station for investigation unless they gave them what they demanded. chanrobles virtual law library

Accordingly, the penalty imposed should be modified. Under Art. 294, par. (5), of The Revised Penal Code, the penalty for simple robbery is prision correccional in its maximum period to prision mayor in its medium period. In view of the aggravating circumstance of abuse of public position, the penalty should be imposed in its maximum period¹¹ while the minimum shall be taken from the penalty next lower in degree, which is arresto mayor maximum to prision correccional medium in any of its periods the range of which is four (4) months and one (1) day to four (4) years and two (2) months. chanrobles virtual law library

WHEREFORE, the Decision of the Court of Appeals which affirmed that of the trial court finding accused-appellant Ricardo Fortuna guilty of robbery and ordering him to pay complaining witnesses Diosdada Montecillo and Mario Montecillo P5,000.00 representing the money taken from them, P20,000.00 for moral damages and P15,000.00 for attorney's fees, is AFFIRMED with the modification that accused-appellant Ricardo Fortuna is SENTENCED to the indeterminate prison term of two (2) years four (4) months and twenty (20) days of the medium period of arresto mayor maximum to prision correccional medium, as minimum, to eight (8) years two (2) months and ten (10) days of the maximum period of prision correccional maximum to prision mayor medium, as maximum. chanrobles virtual law library

Costs against accused-appellant Ricardo Fortuna. chanrobles virtual law library

SO ORDERED. chanrobles virtual law library

Mendoza, Quisumbing, Buena, and De Leon, Jr., JJ., concur.

[1 TSN, 21 July 1993, p.10.

[2 TSN, 8 February 1993, p.6.

[3 TSN, 3 February 1993, p. 23.

[4 Decision penned by Judge Zenaida R. Dacuna, RTC-Br. 19, Manila; Records, pp. 174-180.

[5 Associate Justice Antonio M. Martinez (now Ret. Supreme Court Associate Justice) as ponente and Associate Justices Eduardo G. Montenegro and Salvador J. Valdez, Jr. concurring; CA Rollo, pp. 20-33.

[6 Rollo , pp.11-12.

[7 Go v. Court of Appeals, G.R. No. 104609, 30 June 1993, 224 SCRA 147.

[8 People v. Base, G.R. No. 109773, 30 March 2000.

[9 Ibid .

[10 Art. 14 (1), The Revised Penal Code.

[11 Art. 63, id.