FIRST DIVISION

[ G.R. No. 111426, July 11, 1994 ]

NORMA DIZON-PAMINTUAN, PETITIONER, VS. PEOPLE OF THE
PHILIPPINES, RESPONDENT.

DECISION

DAVIDE, JR., J.:

The chief issue presented for our determination in this petition for review under Rule 45
of the Rules of Court is the correctness of the decision of 29 March 1993 of the Court of
Appeals in CA-G.R. CR No. 11024  which affirmed the decision of Branch 20 of the
[1]

Regional Trial Court of Manila in Criminal Case No. 88-64954  finding the petitioner
[2]

guilty of the violation of the Anti-Fencing Law (P.D. No. 1612) but set aside the penalty
imposed and ordered the trial court to receive additional evidence on the "correct
valuation" of the pieces of jewelry involved for the sole purpose of determining the
penalty to be imposed.

The information in Criminal Case No. 88-64954 charged the petitioner with the violation
of the Anti-Fencing Law in that

"on or about and during the period from February 12, to February 24, 1988, inclusive, in
the City of Manila, Philippines, the said accused, with intent of gain for herself or for
another, did then and there wilfully, unlawfully and knowingly buy and keep in her
possession and/or sell or dispose of the following jewelries, to wit: one (1) set of earrings,
a ring studded with diamonds in a triangular style, one (1) set of earrings (diamond
studded) and one (1) diamond-studded crucifix, or all valued at P105,000.00, which she
knew or should have known to have been derived from the proceeds of the crime of
robbery committed by Joselito Sacdalan Salinas against the owner Teodoro and
Luzviminda Encarnacion. " [3]

On the basis of the testimonies of prosecution witnesses Teodoro Encarnacion (one of the
offended parties), Cpl. Ignacio Jao, Jr., and Pfc. Emmanuel Sanchez, both of the Western
Police District, the trial court promulgated on 16 November 1990 its decision, the
dispositive portion of which reads:

"WHEREFORE, the prosecution having proved the guilt of the accused for violation of
Presidential Decree No. 1612 beyond reasonable doubt, the accused Norma Dizon-
Pamintuan is hereby sentenced to suffer an indeterminate penalty of imprisonment from
FOURTEEN (14) YEARS of prision mayor to NINETEEN (19) YEARS of reclusion
temporal.
No civil liability in view of the recovery of the items, subject-matter of this case.
With costs." [4]

The evidence of the prosecution is summarized by the trial court as follows:

"Teodoro Encarnacion, Undersecretary, Department of Public Works and Highways

testified that he has just arrived at his residence located at Better Living Subdivision,
Parañaque at around 9:45 p.m. of February 12, 1988 coming from the Airport and
immediately proceeded inside the house, leaving behind his driver and two housemaids
outside to pick-up his personal belongings from his case. It was at this point that five
unidentified masked armed persons appeared from the grassy portion of the lot beside the
house and poked their guns to his driver and two helpers and dragged them inside his
house. That the men pointed a gun at him and was made to lie face down on the floor.
The other occupants, namely his wife, the maids and his driver were likewise made to lie
on the floor. Thereafter, the robbers ransacked the house and took away jewelries and
other personal properties including cash. After the intruders left the house he reported the
matter immediately to the police. He was then interviewed by the Parañaque police and
was informed that an operation group would be assigned to the case.
He likewise reported the matter to the Western Police District on February 15, 1988. Two
days later, a group of WPD operatives came over to his house and he was asked to
prepare a list of items of jewelry and other valuables that were lost including a sketch of
distinctive items. He was later told that some of the lost items were in Chinatown area as
tipped by the informer the police had dispatched. That an entrapment would be made
with their participation, on February 14, 1988. As such, they went to Camp Crame at
around 9:00 a.m. and arrived at the vicinity of 733 Florentino Torres Street, Sta. Cruz,
Manila at about 10:00 a.m.; that he is with his wife posed as a buyer and were able to
recognize items of the jewelry stolen displayed at the stall being tended by Norma Dizon
Pamintuan; the pieces were: 1 earring and ring studded with diamonds worth P75,000
bought from estimator Nancy Bacud (Exh. "C-2"), 1 set of earring diamond worth
P15,000 (Exh. "C-3") and 1 gold chain with crucifix worth P3,000 (Exh. "C-4").
Corporal Ignacio Jao, Jr. of the WPD testified that he was with the spouses Teodoro
Encarnacion, Jr. in the morning of February 24, 1988 and they proceeded to Florentino
Torres Street, Sta. Cruz, Manila at the stall of Norma Dizon-Pamintuan together with Sgt.
Perez. After the spouses Encarnacion recognized the items subject matter of the robbery
at the display window of the stall being tended by the herein accused, they invited the
latter to the precinct and investigated the same. They likewise brought the said showcase
to the WPD station. He further testified that he has no prior knowledge of the stolen
jewelries of the private complainant from one store to another.
Pfc. Emmanuel Sanchez of the WPD testified that he reported for duty on February 24,
1988; that he was with the group who accompanied the spouses Encarnacion in Sta. Cruz,
Manila and was around when the couple saw some of the lost jewelries in the display stall
of the accused. He was likewise present during the early part of the investigation of the
WPD station." [5]

The recovery of the pieces of jewelry, on the basis of which the trial court ruled
that no civil liability should be adjudged against the petitioner, took place when, as
testified to by Teodoro Encarnacion, the petitioner "admitted that she got the items but
she did not know they were stolen [and that] she surrendered the items and gave them to
[his] wife."
[6]

On the other hand, the version of the defense, as testified to by Rosito Dizon-Pamintuan,
is summarized by the trial court thus:

"The defense presented only the testimony of Rosito Dizon-Pamintuan who testified that
he is the brother of Norma Dizon-Pamintuan and that sometime around 11:00 a.m. of
February 24, 1985, he, together with the accused went infront of the Carinderia along
Florentino Torres Street, Sta. Cruz, Manila waiting for a vacancy therein to eat lunch.
Suddenly, three persons arrived and he overheard that Cpl. Jao told her sister to get the
jewelry from inside the display window but her sister requested to wait for Fredo, the
owner of the stall. But ten minutes later when said Fredo did not show up, the police
officer opened the display window and got the contents of the same. The display stall was
hauled to a passenger jeepney and the same, together with the accused were taken to the
police headquarters. He likewise testified that he accompanied his sister to the station and
after investigation was sent home." [7]

In convicting the petitioner, the trial court made the following findings:

"The prosecution was able to prove by evidence that the recovered items were part of the
loot and such recovered items belong to the spouses Encarnacion, the herein private
complainants. That such items were recovered by the Police Officers from the stall being
tended by the accused at that time. Of importance, is that the law provides a disputable
presumption of fencing under Section 5 thereof, to wit:

'Mere possession of any goods, article, item object, or anything of value which has been
the subject of robbery or thievery shall be prima facie evidence of fencing.'

There is no doubt that the recovered items were found in the possession of the accused
and she was not able to rebut the presumption though the evidence for the defense alleged
that the stall is owned by one Fredo. A distinction should likewise be made between
ownership and possession in relation to the act of fencing. Moreover, as to the value of
the jewelries recovered, the prosecution was able to show that the same is Ninety Three
Thousand Pesos (P93,000.00) ." [8]

The petitioner then appealed her conviction to the Court of Appeals (CA-G.R. CR No.
11024) where she raised two issues: (1) that the judgment was based on a mere
presumption, and (2) that the prosecution failed to show that the value of the jewelry
recovered is P93,000.00.

In its challenged decision of 29 March 1993, the Court of Appeals disposed of the first
issue in this wise:

"The guilt of accused-appellant was established beyond reasonable doubt. All the
elements of the crime of fencing in violation of the Anti-Fencing Law of 1979 (P.D. No.
1612), to wit:

1. A crime of robbery or theft has been committed;

2.   A person, not a participant in said crime, buys, receives, possesses, keeps,
acquires, conceals, sells or disposes, or buys and sells; or in any manner deals
in any article or item, object or anything of value;

3.   With personal knowledge, or should be known to said person that said item,
object or anything of value has been derived from the proceeds of the crime
of robbery or theft;

4.   With intent to gain for himself or for another;

have been established by positive and convincing evidence of the prosecution. . .

...
The fact that a crime of robbery has been committed on February 12, 1988 is established
by the testimony of private complainant Teodoro T. Encarnacion who immediately
reported the same to Parañaque Police Station of the Southern Police District (TSN,
Hearings of October 3, 1988, November 9, 1988 and January 11, 1989; Exh. A) and
submitted a list and sketches of the jewelries robbed, among other things, from their
residence located at Better Living Subdivision, Parañaque, Metro Manila (Exh. C, C-1 to
C-4 and D).
The second element is likewise established by convincing evidence. On February 24,
1988, accused-appellant was found selling the jewelries (Exhs. C-2, C-3 and C-4) which
was displayed in a showcase in a stall located at Florentino Street, Sta. Cruz, Manila.
[Testimonies of Teodoro Encarnacion (id. supra); Cpl. Ignacio Jao (TSN, Hearing of
February 13, 1989) and Pfc. Emmanuel Sanchez (TSN, Hearing of June 4, 1989)].
On the element of knowledge that the items are derived from the proceeds of the crime of
robbery and of intent to gain for herself or for another, the Anti-Fencing Law provides:

'SEC. 5. Presumption of Fencing. -- Mere possession of any good, article, item, object, or
anything of value which has been the subject of robbery or thievery shall be prima facie
evidence of fencing.'

Knowledge and intent to gain are proven by the fact that these jewelries were found in
possession of appellant and they were displayed for sale in a showcase being tended by
her in a stall along Florentino Street, Sta. Cruz, Manila."
[9]

Nevertheless, the Court of Appeals was of the opinion that there was not enough
evidence to prove the value of the pieces of jewelry recovered, which is essential to the
imposition of the proper penalty under Section 3 of P.D. No. 1612. It opined that the trial
court erred in concluding that "the value of the recovered jewelries is P93,000.00 based
on the bare testimony of the private complainant and the self-serving list he submitted
(Exhs. C, C-2 and C-4, TSN, Hearing of October 3, 1993)." [10]

The dispositive portion of the Court of Appeals' decision reads:

"WHEREFORE, finding that the trial court did not commit any reversible error, its
decision dated October 26, 1990 convicting accused appellant is hereby AFFIRMED with
the modification that the penalty imposed is SET ASIDE and the Regional Trial Court
(Branch 20) of Manila is ordered to receive evidence with respect to the correct valuation
of the properties involved in this case, marked as Exhibits "C", "C-2" and "C-4" for the
sole purpose of determining the proper penalty to be meted out against accused under
Section 3, P.D. No. 1612. Let the original records be remanded immediately." [11]

Hence, this petition wherein the petitioner contends that:

"I

PUBLIC RESPONDENT COURT OF APPEALS MANIFESTLY ERRED IN

AFFIRMING THE DECISION OF PUBLIC RESPONDENT JUDGE CAÑEBA, IN
BLATANT DISREGARD OF APPLICABLE LAW AND WELL-ESTABLISHED
JURISPRUDENCE.

II

PUBLIC RESPONDENT COURT OF APPEALS MANIFESTLY ERRED IN

REMANDING THE CASE TO THE COURT A QUO FOR RECEPTION OF
EVIDENCE FOR THE PURPOSE OF DETERMINING THE CORRECT PENALTY
TO BE IMPOSED." [12]
On 23 February 1994, after the public respondents had filed their Comment and the
petitioner her Reply to the Comment, this Court gave due course to the petition and
required the parties to submit their respective memoranda, which they subsequently
complied with.

The first assigned error is without merit.

Fencing, as defined in Section 2 of P.D. No. 1612 (Anti-Fencing Law), is "the act of any
person who, with intent to gain for himself or for another, shall buy, receive, possess,
keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in
any article, item, object or anything of value which he knows, or should be known to him,
to have been derived from the proceeds of the crime of robbery or theft."

Before P.D. No. 1612, a fence could only be prosecuted for and held liable as
an accessory, as the term is defined in Article 19 of the Revised Penal Code. The penalty
applicable to an accessory is obviously light under the rules prescribed in Articles 53, 55,
and 57 of the Revised Penal Code, subject to the qualification set forth in Article 60
thereof. Noting, however, the reports from law enforcement agencies that "there is
rampant robbery and thievery of government and private properties" and that "such
robbery and thievery have become profitable on the part of the lawless elements because
of the existence of ready buyers, commonly known as fence, of stolen properties,"
P.D. No. 1612 was enacted to "impose heavy penalties on persons who profit by the
effects of the crimes of robbery and theft." Evidently, the accessory in the crimes of
robbery and theft could be prosecuted as such under the Revised Penal Code or under
P.D. No. 1612. However, in the latter case, he ceases to be a mere accessory but becomes
a principal in the crime of fencing. Elsewise stated, the crimes of robbery and theft, on
the one hand, and fencing, on the other, are separate and distinct offenses.  The state may
[13]

thus choose to prosecute him either under the Revised Penal Code or P.D. No. 1612,
although the preference for the latter would seem inevitable considering that fencing is
a malum prohibitum, and P.D. No. 1612 creates a presumption of fencing  and prescribes
[14]

a higher penalty based on the value of the property. [15]

The elements of the crime of fencing are:

1. A crime of robbery or theft has been committed;

2. The accused, who is not a principal or accomplice in the commission of the crime of
robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or
buys and sells, or in any manner deals in any article, item, object or anything of value,
which has been derived from the proceeds of the said crime;
3. The accused knows or should have known that the said article, item, object or anything
of value has been derived from the proceeds of the crime of robbery or theft; and
4. There is, on the part of the accused, intent to gain for himself or for another.
In the instant case, there is no doubt that the first, second, and fourth elements were duly
established. A robbery was committed on 12 February 1988 in the house of the private
complainants who afterwards reported the incident to the Parañaque Police, the Western
Police District, the NBI, and the CIS, and submitted a list of the lost items and sketches
of the jewelry taken from them (Exhibits "C" and "D"). Three of these items stolen, viz.,
(a) a pair of earrings and ring studded with diamonds worth P75,000.00 (Exhibit "C-2");
(b) one set of earrings worth P15,000.00 (Exhibit "C-3"); and (c) a chain with crucifix
worth P3,000.00 (Exhibit "C-4"), were displayed for sale at a stall tended to by the
petitioner in Florentino Torres Street, Sta. Cruz, Manila. The public display of the articles
for sale clearly manifested an intent to gain on the part of the petitioner.

The more crucial issue to be resolved is whether the prosecution proved the existence of
the third element: that the accused knew or should have known that the items recovered
from her were the proceeds of the crime of robbery or theft.

One is deemed to know a particular fact if he has the cognizance, consciousness or

awareness thereof, or is aware of the existence of something, or has the acquaintance with
facts, or if he has something within the mind's grasp with certitude and clarity.  When
[16]

knowledge of the existence of a particular fact is an element of an offense, such

knowledge is established if a person is aware of a high probability of its existence unless
he actually believes that it does not exist.  On the other hand, the words "should know"
[17]

denote the fact that a person of reasonable prudence and intelligence would ascertain the
fact in performance of his duty to another or would govern his conduct upon assumption
that such fact exists.  Knowledge refers to a mental state of awareness about a fact. Since
[18]

the court cannot penetrate the mind of an accused and state with certainty what is
contained therein, it must determine such knowledge with care from the overt acts of that
person. And given two equally plausible states of cognition or mental awareness, the
court should choose the one which sustains the constitutional presumption of innocence. [19]

Since Section 5 of P.D. No. 1612 expressly provides that "[m]ere possession of any good,
article, item, object, or anything of value which has been the subject of robbery or
thievery shall be prima facie evidence of fencing," it follows that the petitioner is
presumed to have knowledge of the fact that the items found in her possession were the
proceeds of robbery or theft. The presumption is reasonable for no other natural or logical
inference can arise from the established fact of her possession of the proceeds of the
crime of robbery or theft. This presumption does not offend the presumption of innocence
enshrined in the fundamental law.  In the early case of United States vs. Luling,  this
[20] [21]

Court held:

"It has been frequently decided, in case of statutory crimes, that no constitutional

provision is violated by a statute providing that proof by the state of some material fact
or facts shall constitute prima facie evidence of guilt, and that then the burden is shifted
to the defendant for the purpose of showing that such act or acts are innocent and are
committed without unlawful intention. (Commonwealth vs. Minor, 88 Ky., 422.)
In some of the States, as well as in England, there exist what are known as common law
offenses. In the Philippine Islands no act is a crime unless it is made so by statute. The
state having the right to declare what acts are criminal, within certain well defined
limitations, has a right to specify what act or acts shall constitute a crime, as well as what
proof shall constitute prima facie evidence of guilt, and then to put upon the defendant
the burden of showing that such act or acts are innocent and are not committed with any
criminal intent or intention."

In his book on constitutional law,  Mr. Justice Isagani A. Cruz said:

[22]

"Nevertheless, the constitutional presumption of innocence may be overcome by contrary

presumptions based on the experience of human conduct [People vs. Labara, April 20,
1954]. Unexplained flight, for example, may lead to an inference of guilt, as 'the wicked
flee when no man pursueth, but the righteous is as bold as a lion.' Failure on the part of
the accused to explain his possession of stolen property may give rise to the reasonable
presumption that it was he himself who had stolen it [U.S. vs. Espia, 16 Phil. 506]. Under
our Revised Penal Code, the inability of an accountable officer to produce funds or
property entrusted to him will be considered prima facie evidence that he has
appropriated them to his personal use [Art. 217]. According to Cooley, the constitutional
presumption will not apply as long as there is 'some rational connection between the fact
proved and the ultimate fact presumed, and the inference of one fact from proof of
another shall not be so unreasonable as to be purely arbitrary mandate' [1 Cooley, 639]."

The petitioner was unable to rebut the presumption under P.D. No. 1612. She relied
solely on the testimony of her brother which was insufficient to overcome the
presumption, and, on the contrary, even disclosed that the petitioner was engaged in the
purchase and sale of jewelry and that she used to buy from a certain Fredo. [23]

Fredo was not presented as a witness and it was not established that he was a licensed
dealer or supplier of jewelry. Section 6 of P.D. No. 1612 provides that "all stores,
establishments or entities dealing in the buy and sell of any good, article, item, object or
anything of value obtained from an unlicensed dealer or supplier thereof, shall before
offering the same for sale to the public, secure the necessary clearance or permit from the
station commander of the Integrated National Police in the town or city where such store,
establishment or entity is located." Under the Rules and Regulations  promulgated to
[24]

carry out the provisions of Section 6, an unlicensed dealer/supplier refers to any person,
partnership, firm, corporation, association or any other entity or establishment not
licensed by the government to engage in the business of dealing in or supplying "used
secondhand articles," which refers to any good, article, item, object or anything of value
obtained from an unlicensed dealer or supplier, regardless of whether the same has
actually or in fact been used.
We do not, however, agree with the Court of Appeals that there is insufficient evidence to
prove the actual value of the recovered articles.

As found by the trial court, the recovered articles had a total value of P93,000.00, broken
down as follows:

"a)  one earring and ring studded with diamonds (Exh. "C-2") -- P75,000.00
b) one set of earring (Exh. "C-3") -- P15,000.00
c) one gold chain with crucifix (Exh. "C-4") -?P3,000.00"

These findings are based on the testimony of Mr. Encarnacion  and on Exhibit "C,"  a
[25] [26]

list of the items which were taken by the robbers on 12 February 1988, together with the
corresponding valuation thereof. On cross-examination, Mr. Encarnacion re?affirmed his
testimony on direct examination that the value of the pieces of jewelry described in
Exhibit "C-2" is P75,000.00  and that the value of the items described in Exhibit "C-3" is
[27]

P15,000.00, although he admitted that only one earring -- and not the pair -- was
recovered.  The cross-examination withheld any question on the gold chain with crucifix
[28]

described in Exhibit "C-4." In view, however, of the admission that only one earring was
recovered of the jewelry described in Exhibit "C-3," it would be reasonable to reduce the
value from P15,000.00 to P7,500.00. Accordingly, the total value of the pieces of jewelry
displayed for sale by the petitioner and established to be part of the proceeds of the
robbery on 12 February 1988 would be P87,000.00.

Section 3(a) of P.D. No. 1612 provides that the penalty of prision mayor shall be imposed
upon the accused if the value of the property involved is more than P12,000.00 but does
not exceed P22,000.00, and if the value of such property exceeds the latter sum, the
penalty of prision mayor should be imposed in its maximum period, adding one year for
each additional P10,000.00; the total penalty which may be imposed, however, shall not
exceed twenty years. In such cases, the penalty shall be termed reclusion temporal and
the accessory penalty pertaining thereto provided in the Revised Penal Code shall also be
imposed. The maximum penalty that can be imposed in this case would then be eighteen
(18) years and five (5) months, which is within the range of reclusion
temporal maximum. Applying the Indeterminate Sentence Law which allows the
imposition of an indeterminate penalty which, with respect to offenses penalized by a
special law, shall range from a minimum which shall not be lower than the minimum
prescribed by the special law to a maximum which should not exceed the maximum
provided therein, the petitioner can thus be sentenced to an indeterminate penalty ranging
from ten (10) years and one (1) day of prision mayor maximum as minimum, to eighteen
(18) years and five (5) months of reclusion temporal maximum as maximum, with the
accessory penalties corresponding to the latter.
In the light of the foregoing, the Court of Appeals erred in setting aside the penalty
imposed by the trial court and in remanding the case to the trial court for further reception
of evidence to determine the actual value of the pieces of jewelry recovered from the
petitioner and for the imposition of the appropriate penalty.

We do not agree with the petitioner's contention, though, that a remand for further
reception of evidence would place her in double jeopardy. There is double jeopardy when
the following requisites concur: (1) the first jeopardy must have attached prior to the
second, (2) the first jeopardy must have validly been terminated, and (3) the second
jeopardy must be for the same offense as that in the first.  Such a concurrence would not
[29]

occur assuming that the case was remanded to the trial court.

WHEREFORE, the instant petition is partly GRANTED by setting aside the challenged

decision of the Court of Appeals in CA-G.R. CR No. 11024 insofar as it sets aside the
penalty imposed by Branch 20 of the Regional Trial Court of Manila in Criminal
Case No. 88-64954 and orders the remand of the case for the trial court to receive
evidence with respect to the correct value of the properties involved. The decision of the
Regional Trial Court is AFFIRMED subject to the modification of the penalty which is
hereby reduced to an indeterminate penalty ranging from Ten (10) years and One (1) day
of Prision Mayor maximum as minimum to Eighteen (18) years and Five (5) months of
Reclusion Temporal maximum as maximum, with the accessory penalties of the latter.

SO ORDERED.

Cruz, (Chairman), Bellosillo, Quiason, and Kapunan, JJ., concur.