G.R. No. 241257, September 29, 2020,
♦ Decision, Gesmundo, [J]
♦ Concurring Opinion, Peralta, [CJ]
♦ Dissenting Opinion, Perlas-Bernabe, [J]
♦ Concurring Opinion, Leonen, [J]
♦ Concurring Opinion, Caguioa, [J]
♦ Dissenting Opinion, Lazaro-Javier, [J]
♦ Dissenting Opinion, Zalameda, [J]
♦ Dissenting Opinion, Lopez, [J]
♦ Dissenting Opinion, Delos Santos, [J]
♦ Dissenting Opinion, Gaerlan, [J]

[ G.R. No. 241257, September 29, 2020 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. BRENDO P. PAGAL, A.K.A. "DINDO," ACCUSSED-APPELLANT.

DISSENTING OPINION

LAZARO-JAVIER, J.:

To remand or not to remand, that is the question.

The ponencia correctly identifies the applicable legal principles, to wit:

(i) At present, the three-fold duty of the trial court in instances where the accused pleads guilty to a capital offense is as follows: (1) conduct a searching inquiry, (2) require the prosecution to prove the accused's guilt and precise degree of culpability, and (3) allow the accused to present evidence on his behalf.

(ii) A justiciable template exists as to the procedure and contents of the searching inquiry (which I like to refer to now as the initial searching inquiry) not only to satisfy the trial judge himself but also to aid the Supreme Court in determining whether the accused really and truly understood and comprehended the meaning, full significance, and consequences of his plea.

(iii) The rule is that a remand of the case must be made -

where as a result of [an improvident guilty plea] there was inadequate representation of facts by either the prosecution or the defense during the trial. Where the improvident plea of guilty was followed by an abbreviated proceeding with practically no role at all played by the defense, we have ruled that this procedure was just too meager to accept as being the standard constitutional due process at work enough to forfeit a human life. What justifies the remand of the criminal case to the trial court is the unfairness or complete miscarriage of justice in the handling of the proceedings a quo as occasioned by the improvident plea of guilt.1

However, I most respectfully dissent when the ponencia refused to remand the instant case to the trial court because the prosecution was allegedly given four real and meaningful opportunities to present its witnesses but failed to do so despite subpoenas having been supposedly served upon its witnesses. I also do not subscribe to its insistence on acquitting appellant as a result of the inability of the prosecution to adduce evidence on any of the four hearing dates it was allotted. Like Justice Rodil Zalameda, I do not agree with the ponencia that the failure of the trial process to abide by the mandated procedure should result in the foregone perfunctory acquittal of appellant.

First. In denying the remand of the instant case to the trial court, the ponencia claims that the prosecution was given four trial dates that went for naught because none of the prosecution witnesses appeared despite notice.

I have my doubts that the subpoenas were properly served upon the prosecution witnesses in the manner subpoenas are to be served - in the same manner as the personal or if proper substituted service of summons.2 I cannot fathom that even a government witness, Dr. Regunda Uy, would have refused to heed her subpoena.

Nonetheless, even if the prosecution witnesses had been properly served the subpoenas, if the trial judge and the trial prosecutor were both minded about the duty of the prosecution to prove the guilt of appellant beyond a reasonable doubt, the trial prosecutor should have sought, and the trial judge ought to have obliged, coercive measures to compel the attendance of the prosecution witnesses under Section 83 and Section 94 of Rule 23, Rules of Court.

The foregoing duty of the prosecution is a duty that the trial court cannot relieve the prosecution of. This duty encompasses the trial prosecutor's obligation to bring the prosecution witnesses to the court by all means necessary. As the Court has said a number of times, "[t]he court cannot, and should not, relieve the prosecution of its duty to prove the guilt of the accused and the precise degree of his culpability by the requisite quantum of evidence."5

Hence, just as the trial court cannot simply accede to a motion to dismiss a pending case by the prosecution,6 the waiver of evidence by the prosecution cannot and should not be taken lightly by the trial court.

In People v. Bodoso,7 the Court held that a waiver of evidence by the defense must not only be voluntary - it must also be knowing, intelligent, and done with sufficient awareness of the relevant circumstances and likely consequences. "There must thus be persuasive evidence of an actual intention to relinquish the right. Mere silence of the holder of the right should not be easily construed as surrender thereof; the courts must indulge every reasonable presumption against the existence and validity of such waiver. Necessarily, where there is a reservation as to the nature of any manifestation or proposed action affecting the right of the accused to be heard before he is condemned, certainly, the doubt must be resolved in his favor to be allowed to proffer evidence in his behalf."

In addition, Bodoso elucidated:

This Court notes with deep regret the failure of the trial court to inquire from accused-appellant himself whether he wanted to present evidence; or submit his memorandum elucidating on the contradictions and insufficiency of the prosecution evidence, if any; or in default thereof, file a demurrer to evidence with prior leave of court, if he so believes that the prosecution evidence is so weak that it need not even be rebutted. The inquiry is simply part and parcel of the determination of the validity of the waiver, i.e., "not only must be voluntary, but must be knowing, intelligent, and done with sufficient awareness of the relevant circumstances and likely consequences" which ought to have been done by the trial court not only because this was supposed to be an uncomplicated and routine task on its part, but more importantly since accused-appellant himself did not personally, on a person-to-person basis, manifest to the trial court the waiver of his own right.

As things stand, both this Court and the trial court being asked hook, line and sinker to take the word of counsel de oficio whose own concern in that particular phase of the proceedings a quo may have been compromised by pressures of his other commitments. For all we know, the statutory counsel of the indigent accused at that time of the trial, although not evident in the other aspects of his representation, only wanted to get rid of dreary work rather than protect the rights of his client.... But, for sure, we must inquire if the waiver was validly done.

The inquiry sought herein is not unprecedented.... To emphasize, the lower court ought to have inquired into the voluntariness and full knowledge of the consequences of accused-appellant's waiver, and prudence requires this Court to ascertain the same if only to avoid any grave miscarriage of justice....

Henceforth, to protect the constitutional right to due process of every accused in a capital offense and to avoid any confusion about the proper steps to be taken when a trial court comes face to face with an accused or his counsel who wants to waive his client's right to present evidence and be heard, it shall be the unequivocal duty of the trial court to observe, as a prerequisite to the validity of such waiver, a procedure akin to a "searching inquiry" as specified in People v. Aranzado when an accused pleads guilty, particularly —

1.     The trial court shall hear both the prosecution and the accused with their respective counsel on the desire or manifestation of the accused to waive the right to present evidence and be heard.

2.     The trial court shall ensure the attendance of the prosecution and especially the accused with their respective counsel in the hearing which must be recorded. Their presence must be duly entered in the minutes of the proceedings.

3.      During the hearing, it shall be the task of the trial court to —

a.       ask the defense counsel a series of question to determine whether he had conferred with and completely explained to the accused that he had the right to present evidence and be heard as well as its meaning and consequences, together with the significance and outcome of the waiver of such right. If the lawyer for the accused has not done so, the trial court shall give the latter enough time to fulfill this professional obligation.

b.       inquire from the defense counsel with conformity of the accused whether he wants to present evidence or submit a memorandum elucidating on the contradictions and insufficiency of the prosecution evidence, if any, or in default theory, file a demurrer to evidence with prior leave of court, if he so believes that the prosecution evidence is so weak that it need not even be rebutted. If there is a desire to do so, the trial court shall give the defense enough time to this purpose.

c.       elicit information about the personality profile of the accused, such as his age, socio-economic status, and educational background, which may serve as a trustworthy index of his capacity to give a free and informed waiver.

d.       all questions posed to the accused should be in a language known and understood by the latter, hence, the record must state the language used for this purpose as well as reflect the corresponding translation thereof in English.

There is no reason why the Court should not require of the public prosecution service the same standards for determining the validity of its carte blanche waiver to present its evidence without even a single verified information from its witnesses why they would no longer be attending any of the trial dates at all. The reason lies in the fact that the prosecution and punishment or correction of criminal offenders is a vital concern of the State, vital to its very existence. The interests of the people should not be sacrificed or jeopardized by the ignorance, negligence or malicious conduct of its prosecutors.

Further, the duty of the prosecution to present evidence is backstopped by the correlative duty of the court to inquire from the prosecution about its evidence. The court is not a mere rubber-stamp of whatever the prosecution wishes to do in litigating its case. The waiver must be tested for its validity and fairness, as explained above, and ought to conform to similarly situated proceedings where the court has to intervene by searching questions. Thus, in a petition for bail, where the prosecution is duty-bound to prove that the evidence of guilt is strong, the court is obliged to obtain clarifications by searching questions even if the prosecution despite the opportunities to call its evidence submits the resolution of the petition to the sound discretion of the court without presenting evidence "even where the prosecutor refuses to adduce evidence in opposition to the application to grant and fix bail, the court may ask the prosecution such questions as would ascertain the strength of the state's evidence or judge the adequacy of the amount of bail..."8

As in Bodoso, the remand of the instant case to the trial court is demanded not by the inadequate but by the utter absence of facts appropriate to the level of prosecutorial diligence vis-a-vis the nature and gravity of the crime. The remand is for the purposes of receiving the prosecution evidence, as it appears that the subpoenas were not properly served in the same manner as summonses, and if properly served, of imposing coercive measures that had not been resorted to compel the attendance of prosecution witnesses and thereupon conducting the second searching inquiry to explain the waiver of prosecution evidence.

Second. In close connection with the above discussion, I also respectfully submit that any accused's guilty plea should at least be a curiosity centerpiece in a criminal case, especially one involving a capital crime. It should rise to the level of an inculpatory evidence when it is adamantly adhered to despite a faulty searching inquiry. The guilty plea may not and at present will not constitute proof beyond a reasonable doubt, but in instances where the prosecution fails to present evidence, it is imperative that the prosecution and its witnesses should be subjected to a second searching inquiry, with the same zealousness and strictness as the first searching inquiry, to determine the why's and wherefore's for their absences.

In arguing for a second-stage searching inquiry, I am not arguing parallel to the constitutional concern on an accused's right to speedy trial, which addresses the systemic and human-made delay in the administration of criminal justice. While delay could be a factor to consider, the gravamen is the skewed trial and fact-finding for the purpose of establishing appellant's guilt beyond a reasonable doubt. I think this is how jurisprudence on Section 3, Rule 116 has evolved,9 and delay has never been a keyword in describing this evolution.

In this regard, just as Justice Zalameda wishes to codify the template for the first-stage searching inquiry, there is as well a need to institutionalize and codify this second-stage searching inquiry when the prosecution fails to adduce evidence of an accused's guilt per Section 3 of Rule 116.

Third. As the ponente himself has described, the guilty plea here was improvident. As such, it voided the entire proceedings from arraignment until conviction.10 As eloquently argued by Senior Associate Justice Estela Perlas-Bernabe, a void arraignment does not exist in law, and without an arraignment, all proceedings from that point onward are also void.

In People v. Tizon (G.R. No. 126955, October 28, 1999), People v. Alicando (251 SCRA 293), Binabay v. People (37 SCRA 445), People v. Durango (G.R. Nos. 135438-39, April 5, 2000), People v. Estomaca (256 SCRA 421), People v. Badilla (138 SCRA 513), People v. Parba (142 SCRA 158) and People v. Petalcorin (180 SCRA 685), among others, the Court invariably ruled that an arraignment is void where the accused entered an improvident plea of guilt, sans any clear showing that the trial court has adequately discharged its duty of conducting the requisite searching inquiry. An invalid arraignment means there is no arraignment at all. Without a valid arraignment, there can be no valid proceedings, let alone, a valid judgment of conviction or acquittal by the trial court, the Court of Appeals, or even the Supreme Court.

Worse, the plea of guilt, improvident as it may be, adversely affected if not improperly impaired the prosecution's presentation of its case.Ꮮαwρhi৷ As a consequence of appellant's guilty plea, the prosecution no longer zealously endeavored to elicit sufficient details beyond what was admitted. In fact, it opted to present no evidence at all. It did not even seek the coercive powers of the court to compel the attendance of its supposed witnesses. Simply stated, there appeared no genuine effort on the part of the prosecution to prove the elements of murder. It merely relied on appellant's admission of guilt to stand on its own, without more.

In People v. Abapo,11 appellant therein entered an improvident plea of guilt to 86 counts of rape. Relying on appellant's plea, the prosecution no longer presented its case with assiduity and meticulous attention to details that was necessarily expected in a prosecution for a capital offense. Consequently, when the victim testified in open court, the prosecution did not quiz her on the details of the alleged rapes beyond the approximate dates and frequency of their commission. Too, the prosecution dispensed with the testimony of the victim's mother though she was ready and willing to testify. Verily, the prosecution did not discharge its obligation as seriously as it would have had there been no plea of guilt on the part of the appellant. A remand of the case to the trial court was therefore warranted therein.

If the doctrine in Abapo where the prosecution had managed to present witnesses during the trial despite appellant's plea of guilt, was to remand the case to the trial court for re-arraignment and further proceedings, with more reason should the Court remand the case here since the prosecution presented no evidence at all to support the charge against appellant.

Notably, in all the aforementioned cases and even in the cases cited in the ponencia, the common denominator was the accused' improvident plea of guilt. In all these cases, the Court had one (1) uniform action, i.e. it set aside the verdict of conviction and remanded the case to the trial court for re- arraignment and trial proper. It did not ever hand down a verdict of acquittal. And it makes sense. No valid judgment, whether for conviction or acquittal may draw, nay, proceed from an invalid arraignment. It means, therefore, that the proceedings before the trial court ought to start all over again.

True, an improvident plea of guilt would not at all times warrant the remand of a case to the trial court. For when there is sufficient evidence on record to sustain a verdict of conviction independent of the admission of guilt, the manner in which the plea of guilt is made loses legal significance. People v. Gumimba,12 citing People v. Derilo13 is apropos:

Convictions based on an improvident plea of guilt are set aside only if such plea is the sole basis of the judgment. If the trial court relied on sufficient and credible evidence to convict the accused, the conviction must be sustained, because then it is predicated not merely on the guilty plea of the accused but on evidence proving his commission of the offense charged. Thus, as we have ruled in People v. Derilo:

While it may be argued that appellant entered an improvident plea of guilty when re-arraigned, we find no need, however, to remand the case to the lower court for further reception of evidence. As a rule, this Court has set aside convictions based on pleas of guilty in capital offenses because of improvidence thereof and when such plea is the sole basis of the condemnatory judgment. However, where the trial court receives evidence to determine precisely whether or not the accused has erred in admitting his guilt, the manner in which the plea of guilty is made (improvidently or not) loses legal significance, for the simple reason that the conviction is based on evidence proving the commission by the accused of the offense charged.

Thus, even without considering the plea of guilty of appellant, he may still be convicted if there is adequate evidence on record on which to predicate his conviction, xxx (emphases added)

But the case here is different. The case records are bereft of any evidence from the prosecution. Evidently, there was no basis for appellant's conviction other than his improvident plea of guilt. The exception enunciated in Gumimba, therefore, is inapplicable here. Instead, the Court ought to apply the general rule and remand the case to the trial court.

Fourth. The evidence at the preliminary investigation was overwhelmingly inculpatory of murder that, together with appellant's guilty plea, should have compelled the trial judge and the trial prosecutor to have acted pro-actively.

By referring to the evidence at the preliminary investigation and during the trial judge's probable cause determination, I am not suggesting that appellant is actually guilty as charged. I refer to these pieces of evidence to buttress the point that the trial prosecutor did not perform his duty to prove the guilt of appellant beyond a reasonable doubt by calling in the evidence which the prosecution already had on hand as early as the preliminary investigation stage and the judicial determination of probable cause. It is these glaring pieces of evidence that were not adduced at the trial that justify the need to remand the case to explore their presentation or at least an explanation as to their non-presentation.

Fifth. The ponencia held that the Court should presume regularity in the performance of functions and we need clear and convincing evidence to disprove this presumption.

The prosecution cannot be accorded the presumption of regularity for the simple reason that the prosecution did not discharge its duty under Section 3, Rule 116. This is an irregularity that precludes the invocation of the presumption. As has been said, it is fundamental that the presumption of regularity cannot be invoked if there is a demonstration of irregularity.

As well, a presumption is an inference on the existence of a fact not actually known, and arises from its usual connection with another that is known, or a conjecture based on past experience as to what course of human affairs ordinarily takes. The presumption of regularity cannot arise from a vacuum but must be made from particular known facts.

Here, the presumption of regularity cannot be invoked because of the paucity of facts from which to infer this presumption. Thus, it is not known whether the witnesses knew of the trial dates and the critical importance of their evidence to prove the guilt of appellant beyond a reasonable doubt; it is not known whether the trial prosecutor conferred with these witnesses prior to the dates of their supposed appearances; it is not known whether these witnesses are still within the reach of the trial court's subpoenas, or are even still alive. There are so many unknown variables that the ponencia cannot reasonably conform its conclusion to deny the remand of the case to the trial court with the presumption of regularity.

Thus, to stress, the trial judge ought to have conducted the initial searching inquiry in the manner required by law, and out of abundance of caution, ought to have held as in the waiver of defense evidence a searching inquiry (following the searching inquiry as to the voluntariness of the guilty plea) when the trial prosecutor was unable to produce the prosecution evidence.

Sixth. Indeed, to acquit appellant now will put a sad closure to the death of Selma Pagal and the sufferings of her family. While "[u]nfortunately, this Court has to contend with the scarcity of records of the arraignment proceedings to make a nuanced approach." We simply cannot put a closure to a tragedy with another tragedy, worse, a travesty of what we are here for.

Seventh. As a point of clarification, appellant's guilty plea is not glamorized for its evidentiary value but as a justification for the remand of this case to the trial court. Clearly, jurisprudence favors a remand because this guilty plea, provident or improvident, skewed the orderly progression of the trial, which resulted in the non-presentation of evidence and ultimately in the injustice to both appellant and the complainants as kins of the victim.

To repeat, the totality of evidence for the preliminary investigation and the trial judge's determination of probable cause is not at this point important to the guilt or non-guilt of appellant but to the fairness of the remand of this case to the trial court for appropriate proceedings. The pieces of evidence are not hollow, they are very significant to the attainment of justice.

Appellant's outright acquittal impresses a dangerous precedent. This outcome seems to suggest that acquittal is the recompense for appellant and the penalty for the court and the State's failure to abide by Section 3 of Rule 116. While there may be consequences or sanctions that ought to be imposed upon the court and the State for their respective errors in applying Section 3 and some recognition for appellant being at the receiving end of these errors, I do not think that acquittal is the proper remedy for this purpose. At the end of the day, we cannot not recognize that there are real and named victims in this case for which acquittal would truly be an unfair outcome.

Lastly, the rule on guilty plea ought to be revisited, specifically the requirement that the prosecution still prove the guilt of an accused, besides his or her precise degree of culpability. The Court must do away with this requirement in instances where the prosecution is left hanging with no prosecution evidence after the determination of probable cause. Of course, at the start, there must have been some evidence against an accused, because otherwise, no criminal case would have been instituted to begin with.

The proposal is motivated by, first, the heavy evidentiary weight carried by a guilty plea not improvidently made as it is really a judicial admission in the most formal and solemn manner. Judicial admissions are a substitute for legal evidence at trial, and waive or dispense with the production of evidence as well as the actual proof of facts by conceding for the puipose of litigation the truthfulness of the fact alleged by the adverse party.

Indeed, if an extrajudicial confession could result in a finding of guilt beyond reasonable doubt, I see no reason why a guilty plea should not be accorded equal if not greater evidentiary weight. The adversarial nature of the proceedings where an extrajudicial confession is introduced as evidence should not make a guilty plea less desirable and weighty than an extrajudicial confession. So long as it is not improvidently made, a guilty plea is always a judicial admission that cannot be ignored especially when the prosecution loses the evidence it was earlier able to muster in filing the criminal case.

The proposal is also motivated by the underlying injustice of dismissing a criminal case and acquitting an accused despite the guilty plea because the prosecution can no longer summon the evidence it had at the beginning of the criminal case. One example is when the only prosecution witness in the case has died even before he or she could take the witness stand.

At the start, an accused may sincerely, knowingly, voluntarily and truthfully confess his guilt as a result of the strength of the evidence against him or the call of his or her conscience. If the prosecution is unable to present its evidence, it would be the height of injustice to let an accused go unpunished and unblemished despite his or her provident, truthful, voluntary, informed and sincere guilty plea, simply because of or pursuant to the mechanical application of the rule that the prosecution must still present evidence of the guilt of this accused.

ACCORDINGLY, I vote to remand this criminal case to the trial court for the prosecution to have an opportunity anew to present its evidence against appellant. In addition, I propose to institutionalize and codify a second-stage searching inquiry if and when the prosecution fails to adduce evidence of an accused's guilt, and further propose to revisit and amend the rule requiring the prosecution to prove an accused's guilt despite his or her provident, truthful, sincere, informed and voluntary guilty plea, by allowing such guilty plea the full effects of a judicial admission.



Footnotes

1 People v. Murillo, 478 Phil 446, 464-465 (2004).

2  SECTION 6. Service. — Service of a subpoena shall be made in the same manner as personal or substituted service of summons. The original shall be exhibited and a copy thereof delivered to the person on whom it is served, tendering to him the fees for one day's attendance and the kilometrage allowed by these Rules, except that, when a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof, the tender need not be made. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. If the subpoena is duces tecum, the reasonable cost of producing the books, documents or things demanded shall also be tendered. (6a, R23)

3  SECTION 8. Compelling Attendance. — In case of failure of a witness to attend, the court or judge issuing the subpoena, upon proof of the service thereof and of the failure of the witness, may issue a warrant to the sheriff of the province, or his deputy, to arrest the witness and bring him before the court or officer where his attendance is required, and the cost of such warrant and seizure of such witness shall be paid by the witness if the court issuing it shall determine that his failure to answer the subpoena was willful and without just excuse. (11, R23)

4 SECTION 9. Contempt. — Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto diall be punished in accordance with the applicable law or Rule. (12a, R23)

5 People v. Espidol, 485 Phil. 35, 54 (2004); People v. Besonia, 466 Phil. 822, 841-842 (2004); People v. Camay, 236 Phil. 431, 434 (1987).

6 Heirs of Tria v. Obias, 650 Phil. 449 (2010).

7 446 Phil. 838, 850-851 (2003).

8 Mamolo Sr. v. Narisma, 322 Phil. 670, 675 (1996); Zuño v. Cabebe, 486 Phil. 605, 615 (2004); Marzan-Gelacio v. Flores, 389 Phil. 372, 383 (2000). With clear-cut procedural guidelines on bail now incorporated in the Rules of Court, judges have been enjoined to study them well and be guided accordingly. Concededly, judges cannot be faulted for honest lapses in judgment but this defense has become shopworn from overuse. To reiterate, although the Provincial Prosecutor had interposed no objection to the grant of bail to the accused, respondent judge should have set the application or petition for bail for hearing. 28 If the prosecution refuses to adduce evidence or fails to inteipose an objection to the motion for bail, it is still mandatory for the court to conduct a hearing or ask searching and clarificatory questions. 29 For even the failure of the prosecution to interpose an objection to the grant of bail to the accused will not justify such grant without a hearing. Borinaga v. Tainin, 297 Phil. 223, 225-226 (1993).

9  People v. Galvez, 428 Phil. 438 (2002), People v. Nuelan, 419 Phil. 160 (2001); People v. Abapo, 385 Phil. 1175 (2000); People v. Durango, 386 Phil. 202 (2000); People v. Ernas, 455 Phil. 829 (2003); People v. Murillo, 478 Phil. 446 (2004); People v. Besonia, 466 Phil. 822 (2004).

10 People v. Benavidez, 437 Phil. 831 (2002).

11 385 Phil. 1175,(2000).

12 545 Phil. 627, 651 (2007).

13 338 Phil. 350, 374 (1997). See also People v. Ostia, 446 Phil. 181 (2003); People v. Nismal, 199 Phil. 649 (1982); People v. Petalcorin, 259 Phil. 1173 (1989).


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