REPUBLIC OF THE PHILIPPINES

SANDIGANBAYAN
Quezon City

FOURTH DIVISION

PEOPLE OF THE PHILIPPINES, Crim. Case No. SB-1S-CRM-0132

Plaintiff,

For Violation of Section 3(e) of R. A. No. 3019, as

amended.

-versus-

RONALD N. RICKETTS, ET AL.,

Accused.
Present:

QUIROZ, J., Chairperson

CRUZ, J.
JACINTO, J.

Promulgated on:

fc..bnJa0L 1.(,,2.0 I~ ~

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

RESOLUTION

CRUZ, J.

This resolves the (1) Demurrer to Evidence 1 dated 06

November 2017 of accused Cyrus Paul S. Valenzuela (hereinafter
"Valenzuela"); and (2) Prosecution's Comment/Opposition (Re:
Accused Cyrus Paul S. Valenzuela's Demurrer to Evidence dated
November 6, 2017)2 dated 21 December 2017.

On 27 May 2010, accused Ronald N. Ricketts ("Ricketts" for

br~ity), then the Chairman of the Optical Media Board (OMS),3
instructed accused Joseph D. Arnaldo ("Arna/do" for brevity) and a
team of OMB agents, to proceed to an establishment located at
Carlos Palanca Street in Quipo, Manila, to verify if there were pirated

1 Records, Vol. III, pp. 502-532

2 Records, Vol. III, pp. 563-570
3 Records, Vol. I, p. 45
RESOLUTION
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Case No. S8-15-CRM-0132

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Digital Video Discs (DVDs) and Video Compact Discs (VCDs), in the
area." Upon confirmation of the existence of these pirated materials"
a raid ensued, resulting in the seizure of 127 boxes and two (2)
sacks of pirated DVDs and VCDs, 1 unit of Video Recording Human
I. P. C., as well as the arrest of three (3) Chinese nationals." After
the raid, the aforementioned pirated materials were loaded into a
truck, brought to the OMB office at around 1:30 in the afternoon, and
then, turned over to the morning guard on duty, who recorded the
entry thereof in a log book.' I

At around 10 o'clock in the evening, Pedro C. Gazzingan

("Gazzingan" for brevity), the night guard on duty, noted that 121
boxes of the said pirated materials were pulled out from the OMB's
premises without the approved gate pass, and were placed into an
Isuzu Elf truck with license plate RGW 474.8 The pull-out was
supervised by accused Glenn S. Perez ("Perez" for brevity), who
was assisted by five (5) porters and the driver of the said Isuzu Elf
truck, which was used to transport the same boxes earlier that day."
As a justification, accused Perez told Gazzingan that the pull-out
was authorized by the chairman. 10 This prompted Gazzingan to
contact accused Valenzuela, who was allegedly still in his office at
that time." When accused Valenzuela was informed about the pull-
out being conducted, he advised Gazzingan to allow only the pull-
out of the truck (sic) if authorized by the chairman."

On 31 May 2010, Gazzingan reported the incident to Evelyn

Asoy CAsoy" for brevity), the Chief of the OMB's Administrative and
Finance Division (AFD). 13 Consequently, Asoy issued a
Memorandum dated 03 June 201014 to accused Perez, asking the
latter to explain why he pulled out the said pirated materials together
with the closed van with plate no. RGW 474. In his reply, accused
Perez said that he was following the instruction of the chairman to
load the said items into the truck for safekeepinq."

After the issuance of the said memorandum, Asoy furnished

copies thereof to the OMB's Chief Executive Officer, Executive

4 Records, Vol. I, p. 28
5 Records, Vol. I, pp. 49, 54, 68
6 Records, Vol. I, pp. 28-30

7 Records, Vol. I, pp. 10,29,31,49,57-58

8 Records, Vol. I, pp. 59-60, 65

9 Records, Vol. I, pp. 59-60, 65

10 Records, Vol. I, p. 65
11 Records, Vol. I, p. 65
12 Records, Vol. I, p. 65,168

13 Records, Vol. I, p. 59, 80

14 Records, Vol. I, p. 64
15 Records, Vol. I, p. 66

1/
,/'
I
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Case No. SB-15-CRM-0132

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Director and Human Resource Unit, but the management did not
create any investigation committee." A certification from the OMB's
Legal Division also confirmed that no case was filed against the
owner of the compound at Carlos Palanca Street in Quipo, Manila,
where the pirated materials were confiscated."

On 18 July 2013, the Field Investigation Office (FIO), of the

Office of the Ombudsman, filed a Complaint 18 against accused
Valenzuela and his co-accused. After finding probable cause;" an
lnformatiorr? dated 31 May 2014 was subsequently filed, charging
them with violation of Section 3(e) of R. A. No. 3019 (Anti-Graft and
Corrupt Practices Act), as amended, the accusatory portion of which
reads:

"That on 27 May 2010, or sometime prior or subsequent thereto, in

Quezon City, Philippines, and within the jurisdiction of this Honorable
Court, accused Ronald N. Ricketts, a high ranking public officer (SG
29), being the Chairman and Chief Executive Officer of the Optical
Media Boad (OMB), conspiring, confabulating and confederating with
Cyrus Paul S. Valenzuela, Manuel J. Mangubat, Joseph D. Arnaldo,
and Glenn S. Perez, Executive Director, Head of the Enforcement and
Inspection Division (EID), Investigation Agent I of EID, and Computer
Operator, respectively, while in the performance of their official
functions as such, taking advantage thereof and committing the
offense in relation to office, did then and there willfully, unlawfully and
criminally give unwarranted benefit, advantage, or preference to Sky
High Marketing Corporation, thru manifest partiality, evident bad faith
or gross inexcusable negligence, by allowing and causing the release
and reloading into the corporation's vehicle the pirated Digital Video
Discs (DVDs) and Video Compact Discs (VCDs) that were confiscated
from the establishment in the afternoon of the same day, 27 May 2010,
which compromised the pieces of evidence that could support the
case(s) that should have been filed against the said violators of
Republic Act 9239 (the Optical Media Board Act of 2003), to the
damage and prejudice of the government and to the detriment of public
interest.

CONTRARY TO LAW."

On 30 June 2015, accused Valenzuela filed a Motion for Judicial

Determination of Probable Cause and to Hold in Abeyance the
Issuance of a Warrant of Arrest." On 08 July 2015, the Court denied
accused Valenzuela's motion." and the corresponding Warrant of

16 Records, Vol. I, p. 73
17 Records, Vol. I, p. 78
18 Records, Vol. I, pp. 27-43
19 Records, Vol. I, pp. 4-15
, 20 Records, Vol. I, pp. 1-3
21 Records, Vol. I, pp. 237-252

.
22 Records, Vol. I, pp. 258-259

"
RESOLUTION
PP vs. Ronald N. Ricketts, et al.
Case No. S8-15-CRM-0132

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Arrest was issued against him. 23 In view thereof, accused

Valenzuela posted bail in the amount of Thirty Thousand Pesos
(Php30,000.00).24 Upon arraignment, accused Valenzuela pleaded
"not guilty" to the offense charqed."

At the pre-trial." the parties agreed on the resolution of the

following issues:

1. Whether or not accused Ronald N. Ricketts, Cyrus Paul S.

Valenzuela, Manuel J. Mangubat, Joseph D. Arnaldo, and Glenn S.
Perez, being then the Chief Executive Officer, Executive Director,
Enforcement and Inspection Division Head, Investigation Agent I, and
Computer Operator, respectively, all of the Optical Media Board, took
advantage of their official position and with manifest partiality, evident
bad faith or gross inexcusable negligence, gave unwarranted benefit,
advantage or privilege to Sky High Marketing Corporation;

2. Whether accused Ronald N. Ricketts, Cyrus Paul S. Valenzuela,

Manuel J. Mangubat, Joseph D. Arnaldo, and Glenn S. Perez, in
allowing and causing the release and reloading into the corporation's
vehicle the pirated Digital Video Discs (DVDs) and Video Compact
Discs (VCDs) that were confiscated from the establishment in the
afternoon of the same day, 27 May 2010, which comprised the pieces
of evidence that could support the case(s) that should have been filed
against the violators of Republic Act 9239 (the Optical Media Board
Act), gave unwarranted benefit, advantage, or preference to Sky High
Marketing Corporation, to the damage and prejudice of the
government and to the detriment of public interest; and

3. Whether or not all the accused conspired to commit the offense

charged.

During the trial, the prosecution presented Pedro C. Gazzingan,

Crisanto T. Agas, Ronald P. Degamo, Evelyn F. Asoy, Lucia F.
Guevarra, Shieryl Dimacali, Benjamin D.R. Duanan, Raul V. Roma,
Luis Padilla, /I and Rochelle I. Mendez as witnesses. Their
respective testimonies are summarized as follows:

Pedro Cureg Gazzingan (Gazzingan), 27a Security Guard of

St. Nicholas Security Agency Incorporated, testified on direct
examination" that he was assigned at the Optical Media Board
(OMB) from 2009 to 2010, to secure the perimeter, record incidents
in the log book, patrol the areas within the compound and the

23 Records, Vol. I, p. 260

24 Records, Vol. I, p. 269
25 Records, Vol. I, p. 587
26 Records, Vol. II, pp. 145-154
27 Transcript of Stenographic Notes (TSN) dated 16 February 2016cy'
U

/
28 TSN dated 16 February 2016, pp. 12-63.
RESOLUTION
PP VS. Ronald N. Ricketts, et al.
Case No. SB-15-CRM-0132

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perimeter area of the OMB.

He narrated that on 27 May 2010, while he was on duty at the

OMS for his shift from 7:00 P.M. to 7:00 A.M, a certain Glenn Perez
(Perez) came at around 9:00 P.M., to take out the confiscated pirated
DVDs. When he told Perez that a gate pass issued by the Officer-
in-Charge of the Human Resources (OIC of the HR) is required
before he could bring the items outside of the OMB premises."
Perez responded that it was the Chairman who gave the instructions
to bring the items out and that such order was official. This prompted
him to ask for guidance from Cyrus Valenzuela (Valenzuela), the
Executive Director of the OMS. However, Valenzuela told him
that, "Kung utos ni Chairman, wala tayong magagawa," ("If that was
the instruction of the Chairman, we can do nothing about it.")."?
When he returned to his post after speaking to Valenzuela, he saw
that the items were already being loaded into a truck by Perez and
the other porters.

Upon inquiry from the court." Gazzingan said that he contacted

Valenzuela in the belief that the latter can act for and in behalf of the
Chairman. Then, when the court inqurred'" about the identity of the
truck, Gazzingan answered that it was marked "Sky High Marketing".
He said that he recorded the said marking and the truck's plate
number, but did not have any record of the driver's name or the
brand of the car because the vehicle was parked outside the OMB
premises even before he began his shift at 7:00 PM.

Gazzingan also said that the truck used was a confiscated

vehicle. He recounted that he recorded the incident in the log book
which reads as "In [sic] Glenn Perez and SSC porters pulled out 121
boxes of DVD and VCD discs and RGW 474 Isuzu Elf Sky High
Marketing." Then, he submitted a report to Evelyn Asoy (Asoy), OIC
of the HR in relation to the removal of the items from OMS custody.

During the cross examination." Gazzingan confirmed that he

received a Memorandum requiring him to explain what happened on
27 May 2010. He also acknowledged that it was Asoy who is
authorized to issue a gate pass while Valenzuela is not authorized
to do so.

29 TSN dated 16 February 2016, p. 20.

30 TSN dated 16 February 2016, p. 22.
31 TSN dated 16 February 2016, p. 28-29. (
32 TSN dated 16 February 2016. p. 33-35.
33 TSN dated 16 February 2016, pp. 64-91.
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PP vs. Ronald N. Ricketts, et al.
Case No. SB-15-CRM-0132

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He said he was told by Perez that there was clearance from the
Chairman to take out the items from the OMB premises. He said that
he never allowed the taking out of items from the OMB without a
gate pass except on 27 May 2010.

Upon inquiry from the court." he said that upon seeing the
boxes being loaded into the truck, he asked one of the porters as to
under whose order are they acting, to which the latter replied that
Perez told them to load the boxes to the vehicle.

Gazzingan said that Perez was with the porters and that the
latter were already waiting outside the OMB compound when Perez
spoke to him. He further stated that a certain "Irma" was in custody
of the keys of the confiscated vehicle but, he does not know who
gave the key to the porters."

Upon inquiry from the court.:" he revealed that the security

guards of the OMB are sometimes asked to function as porters
thereof during their days-off. He added that he was not part of the
team which conducted the operation in relation to the items brought
out of the OMB premises. He said that he cannot tell whether the
items taken out on the night of 27 May 2010 were actually from
registered business entities, either local or imported, or if the subject
items were related to an inspection order or a search warrant. His
only basis was the confiscated items log book where said items were
recorded. He also claimed that Perez promised him that the gate
pass will follow.

Crisanto Teodoro Agas (Agas), 37 also a Security Guard,

testified on direct examlnation," that he recalls the entry of one
hundred twenty-seven (127) boxes and two (2) sacks of pirated
DVDs and VCDs, one (1) truck, and one (1) unit digital video
recording at the OMS compound, because he recorded these items
in a log book, and that the log books are under the custody of Evelyn
Asoy of the Administrative Office of the OMB.

Upon inquiry from the court." he explained that after the log
books are consumed, they are turned over to the Administrative
Office.

34 TSN dated 16 February 2016, pp. 71-86.

35 TSN dated 16 February 2016, pp. 91-120.
36 TSN dated 16 February 2016, p. 126.
37 TSN dated 6 April 2016.
38 TSN dated 6 April 2016. pp. 10-48.
39 TSN dated 6 April 2016, pp. 29, 36-39 ~
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Case No. SB-15-CRM-0132

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Agas said that the confiscation of the one hundred twenty-seven

(127) boxes and two (2) sacks of DVDs and VCDs, one (1) digital
video recording and one (1) truck was caused by Glenn Perez and
a certain Arnaldo. He narrated that when the truck arrived at the
OMS, it was driven by an OMS driver. He then recorded the items
contained in the truck as well as the truck itself and its keys.
Thereafter, the keys were turned over to Irma Zabala (Zabala),
Secretary of the Executive Director. He made Zabala sign the log
book as proof that the latter received the keys. On the following day,
he learned from his reliever, Gazzingan, that the items confiscated
the day before were already taken out.

On cross examination,"? Agas said that it was the driver and

porters who initially informed him that the items being brought to the
OMS were confiscated during the operation. He stated that there
were several confiscations made during the week of 27 May 2010,
but no markings were placed on the boxes and sacks brought inside
the OMS since the said containers were being reused. He admitted
that the confiscated items would be commingled with the other items
obtained from raids made on different dates.

He disclosed that he sometimes joins the operations of the OMS

only to haul confiscated items to the OMS's vehicle, but was not part
of the team that operated on 27 May 2010. He conceded that it was
possible that other OMS agents caused the confiscation of the items
subject of the case.

The court inquired'" whether Agas is aware of any instance that

confiscated items were withdrawn from the OMS's custody which he
answered in the negative. He also avers that there is no recording
as to the withdrawal of any confiscated items from OMS custody.

Ronald Peregrino Oegamo (Oegamo), 42 Administrative Aide

IV, Enforcement and Investigation Division of the OMS, testified
during his direct examination;" that on 27 May 2010, at 8:00 A.M.,
there was a scheduled trip or "Iakad" which means that there will be
an inspection or surveillance operation.

Upon inquiry from the court." he expounded that he received

orders through radio communication from Joseph Arnaldo (Arnaldo),
Team Leader. In describing the 27 May 2010 operation, Degamo
40 TSN dated 6 April 2016, pp. 48-55.
41 TSN dated 6 April 2016. p. 68.
42 TSN dated 7 April 2016.
43 TSN dated 7 April 2016. pp 10-67
44 TSN dated 7 April 2016, pp. 21-22. {
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Case No. SB-15-CRM-0132

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said that the convoy of the OMB parked inside a compound while he
waited in the vehicle. He also claimed that among the operatives
were accused Arnaldo and Perez, agents Tampingo, Razon, Ebuen,
and others which he cannot recall by name."

Oegamo narrated that the OMB agents saw a parked truck and
several boxes in the docking area. The agents found that the
contents of the boxes are numerous OVOs and VCOs and thereafter
secured the boxes. Ricketts arrived thirty (30) minutes after the team,
and soon media personnel also arrived at the scene. Ricketts then
entered the warehouse along with several members of the team and
the media.

Oegamo stated that he also entered the warehouse before

Ricketts and the media went in. He saw boxes of various contents
(OVO players, gadgets, and pirated OVOs among others). After the
three (3) hour operation, he was told to ride with the driver and other
helper in one of the two (2) trucks found in the compound. Upon
arrival at the OMB, the truck which he rode on was parked in front of
the office's gate. The items were then unloaded from the back of the
truck and brought inside the OMB compound near the guard post.
The other truck, an aluminum Elf closed van, remained in the parking
area of the OMB. On the next day, he noticed that the truck was no
longer in the parking area of OMB,' and only four (4) boxes and two
(2) sacks of confiscated items were left. He then prepared an
inventory of the items that remained in OMB custody.

On cross examination;" Oegamo reiterated that he did not

see the second truck the following day. Furthermore, he confirmed
that for the entire duration of the operation, there was no involvement
of accused Valenzuela. 47

Upon inquiry from the court." he explained that his inventory

. which pertained to four (4) boxes and two (2) sacks included only
those items that were left when he made the inventory on 28 May
2010. He estimated the contents of the truck at around more than
one hundred boxes. He said that the did not report the incident
because he assumed that accused Mangubat, then Chief of the EIO,
would already know about the incident.

45 TSN dated 7 April 2016. pp. 29-30.

46 TSN dated 7 April 2016, pp. 67-97.
47 TSN dated 7 April 2016, pp. 97-103,./
48 TSN dated 7 April 2016, pp 80-85 .• ,
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Case No. S8-15-CRM-0132

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Evelyn Fajardo Asoy (Asoy), 49 retired Chief of the

Administrative and Finance of the OMB, mentioned on direct
examination'? that on 27 May 2010, she noticed on her way out of
the office that many boxes and sacks of confiscated items were
placed near the guards' area. However, when she arrived the next
day, the said items she saw the night before were already gone. So,
she asked the morning duty guard to inform the evening duty guard,
Gazzingan, to submit an incident report.

She recited the contents of the incident report, saying that on

27 May 2010, a pull-out of seized items was conducted by Glenn
Perez. She then issued memoranda to Gazzingan and Perez for
them to explain why the items were pulled out without securing a
gate pass from the Administrative Office. After receiving the replies
of Gazzingan and Perez, she furnished the offices of the Executive
Director, Chairman, and the Human Resources with copies of the
responses.

On cross examination.?' she clarified that gate passes can be

issued by each division, approved by either the Executive Director
or the Chairman, and in their absence, the Division Head can sign
the gate pass. On 27 May 2010, she claimed that she did not sign
any gate pass in relation to the confiscated items pertaining to this
case. She confirmed that items cannot be brought outside the OMS
premises without a gate pass. She said that if an official higher in
rank than her would instruct the pulling out of items from the
premises, that official would be accountable, and a gate pass is still
required. 52

Still on cross examination, 53 she said that the Executive

Director and the Chairman did not issue any memorandum or
instruction in relation to the incident. She also admitted that she did
not address any memorandum to the head of the Enforcement and
Investigation Division. 54

During the re-direct examlnation." she emphasized that the

gate pass policy applies to all offices and divisions of the OMB.

49 TSN dated 25 May 2016.

50 TSN dated 25 May 2016, pp. 9-38.
51 TSN dated 25 May 2016, pp. 39-47.
52 TSN dated 25 May 2016, p. 65.
53 TSN dated 25 May 2016, pp. 47-57.
54 TSN dated 25 May 2016, pp 57-63.
55 TSN dated 25 May 2016, p. 67. ~
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Case No. S8-15-CRM-0132

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Lucia Ferrer Guevarra (Guevarra),56 Administrative Officer V

of the OMB, verified on direct examination, 57that she issued a
certification stating that she does not have the log books requested
by the Office of the Ombudsman.

On cross examination." she declared that she does not have

any record showing that the log book requested by the Ombudsman
was actually turned over to her office. She said that as a rule the log
books are turned over only when they are already fully consumed.
She narrated that the log books contain entries indicating the items
or number of boxes, as well as the person who turned over seized
items, and also contain logs on employee arrival and departure.

Shieryl Dimacali (Dimacali), 59 Licensing Officer III,

Registration and Licensing Division of the Optical Media Board,
confirmed on direct examination 60 that she issued several
certifications as to the licenses of Sky High Marketing Incorporation
in response to the subpoena from the Ombudsman.

On cross examinatlon.?' she stated that the OMB issues

licenses on business entities engaged in the sale, distribution,
importation, exportation, and manufacture of optical media discs.
Thereafter, she explained that the licenses of Sky High Marketing
Incorporation for 2012,2013, and 2014 were for an Importer of Music
Products. But, according to the records of the OMB, no license for
2010 exists for Sky High Marketing.

Benjamin Dela Rosa Duanan (Duanan), 62 Administrative Aide

IV and Evidence Custodian, Administrative and Finance Division and
Property Supply Unit of the OMB, declared during his direct
exarnlnatlon'" that usually the seized items during the operations
conducted by the enforcement units, consisting of pirated optical
discs, equipment, and accessories, are turned over by the team
leader or the evidence custodian of the enforcement unit.

Upon inquiry from the court.?" he stated that the confiscated

items contained in sacks were sold in September 2011 through a
public bidding approved by accused Valenzuela, while those in the

56 TSN dated 25 May 2016.

57 TSN dated 25 May 2016, pp. 73-76.
58 TSN dated 25 May 2016, pp. 76-77.
59 TSN dated 26 May 2016.
60 TSN dated 26 May 2016, pp. 20-25.
6' TSN dated 26 May 2016, pp. 25-31.
62 TSN dated 24 August 2016.
63 TSN dated 24 August 2016, pp. 10-** ••.1
64 TSN dated 24 August 2016, p. 14. '1
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Case No. SB-15-CRM-0132

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boxes were sold in January 2011, also through a public bidding

approved by accused Ricketts. He thereafter said that accused
Valenzuela, was the Chairman of the Disposal Committee.

Raul Villarta Roma (Roma), 65 Administrative Aide V, of the

OMB , testified on direct examination 66 that he drove the
confiscated closed aluminum truck from Palanca Street, Manila to
the OMS office in Quezon City. Upon arrival, he parked the said truck
in front of the OMB office and gave the keys to the guard on-duty,
Crisanto Agas.

With the completion of its presentation of evidence, the

prosecution filed its Formal Offer of Exhibits.!" Thereafter, the Court
admitted the following exhibits into evidence:

"xxx Exhibits "A" to "A-9", Exhibits "B" to "8-4", Exhibits "C", "C-24" to
"C-24a", "C-27" to "C-32b", "C-33" to "33-c", "C-325" to "35-c", "C-36"
to "C-37-c", Exhibits "C-39" to "C-39-c", Exhibits "C-43" to "C-43-a",
Exhibits "C-46"to "C-46-a", Exhibits "C-47", Exhibits"C-51"to "C-51-a",
Exhibits "C-52 to C-54", Exhibit "0", Exhibits "E" to "E-7", Exhibits "9"
to "11-c", Exhibits "F" to "F-9" with sub-markings, Exhibit "G", Exhibits
"l" to "1-41", Exhibits "K" to "N" and Exhibit "P" including its Additional
Offer for the purposes for which they were offered but subject to the
Court's proper appreciation of their respective probative values. XXX"68

After the prosecution rested its case, accused Valenzuela filed

a Motion for Leave to File Demurrer to EvidenceP? which the Court
qranted."?

In his Demurrer to Evidence," accused Valenzuela denies his

participation in the conspiracy, stating that he did not commit any
overt acts to contribute to the commission of the offense. Mainly,
accused Valenzuela argues that he did not take part in the raid that
led to the seizure of the pirated materials, neither was he involved in
the pull-out thereof from the OMB's premises. Accused Valenzuela
insists that it was never his duty to prevent the pull-out of the pirated
.materials nor to verify if a gate pass was issued for the same.
Accordingly, accused Valenzuela asserts that such duty pertains to
Security Guard Gazzingan, who should have validated from Perez if
the pull-out was indeed ordered by the chairman. Accused
Valenzuela avers that the pull-out of pirated materials is part of the
65 TSN dated 25 August 2016.
66 TSN dated 25 August 2016, pp. 7-14.
67 Records, Vol. III, pp. 16-38
68 Records, Vol. III, pp. 288-289
69 Records, Vol. III, pp. 317-320
70 Records, Vol. III, pp. 364-370 ,J
71 Supra, footnote 1 ~1
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Case No. SB-1S-CRM-0132

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regular business of the agency and, as such, it happens regularly.

Moreover, the presentation of the gate pass is merely an internal rule
and not mandatory. Thus, accused Valenzuela opines that he
should not be faulted for relying in good faith that Gazzingan will do
his job and will only allow the release of the pirated materials if
authorized. Furthermore, accused Valenzuela maintains that he
presumed that the chairman performed his duty regularly when he
authorized the pull-out of said materials. Accused Valenzuela also
adds that he should not be held liable for the duties and
responsibilities incumbent upon other OMS officials. Accused
Valenzuela concedes that Gazzingan and Perez were wrong for not
following protocol, but he cannot file disciplinary actions against
them because he was not their direct superior. Likewise, accused
Valenzuela declares that the duty to file a complaint against Sky High
Marketing Corporation belongs to the OMB inspectors and agents
who participated in the raid, since they were the ones tasked to
pursue the case against the violators.

The prosecution opposed'? accused Valenzuela's allegations,

claiming that his actions during and after the loading and pulling out
of the pirated materials from the OMS's premises, demonstrated his
active participation in the conspiracy to perpetrate the offense.
Citing the testimony of Gazzingan, the prosecution underscores that
accused Valenzuela was still in his office when the incident
happened. The prosecution maintains that accused Valenzuela was
informed of the pull-out and that he even witnessed the same, but
instead of putting a stop to it, he allegedly gave his consent to the
loading and release of the said pirated materials. The prosecution
also notes that despite being furnished a copy of Asoy's
memorandum (to Gazzingan and Perez), accused Valenzuela did
not act or investigate the illegal pull-out of the pirated materials
reported therein. The prosecution posits that accused Valenzuela
acted with manifest partiality, evident bad faith or gross inexcusable
negligence, in causing the release and removal of the pirated
materials from the OMS's premises, which in effect compromised
the evidence that would support the filing of a case against Sky High
Marketing Corporation. The prosecution concludes that the
government suffered undue injury because of the alleged action of
accused Valenzuela in extending unwarranted benefits, advantage
or preference to Sky High Marketing Corporation, by preventing the
conduct of any investigation or the filing of an appropriate action
against the latter.

72 Supra, footnote 2 r
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Accused Valenzuela's Demurrer to Evidence is meritorious.

Jurisprudence dictates that the objective of a demurrer to

evidence is to test the sufficiency or insufficiency of the prosecution's
evidence.73 Hence, in passing upon the sufficiency of the evidence
offered in a demurrer, the court is merely required to determine
whether there is competent or sufficient evidence to sustain the
indictment or to support a verdict of guilt. 74 To be considered
sufficient, the evidence must prove: (a) the commission of the crime,
and (b) the precise degree of participation therein by the accused."

A thorough review of the prosecution's evidence shows that the

latter failed to establish the precise degree of participation of
accused Valenzuela in the commission of the crime. Particularly, the
Court finds that the prosecution was unsuccessful in proving that
accused Valenzuela acted in conspiracy with his co-accused to
commit the offense charqed."

There is conspiracy when two or more persons come to an

agreement concerning the commission of a crime and decide to
commit it. 77 Significantly, it is doctrinal that conspiracy is never
presumed." as such it is necessary for conspiracy to be proven as
clearly and convincingly as the commission of the crime itself." In
other words, like the physical acts constituting the offense, the
elements of conspiracy must also be proven beyond reasonable
doubt. 80 Although conspiracy need not be established by direct
evidence because it may be inferred from the conduct of the accused
before, during and after the commission of the crime, the evidence
offered must be strong enough to show the community of criminal

73 Rodolfo G. Valencia vs. Sandiganbayan, 473 SCRA 279, (2005), p. 288

74 Gregorio Singian, Jr. vs. Sandiganbayan, et al. 706 SCRA 451, (2013), p. 468
75 Id., pp. 468-469

76 In this case, accused Valenzuela is charged in conspiracy with his co-accused for violation of Section

3(e) of R. A. No. 3019, which states:

"xxx Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of public
officers already penalized by existing law, the following shall constitute corrupt practices of
any public officer and are hereby declared unlawful:

xxx xxx xxx

(e) Causing any undue injury to any party, including the Government, or giving any private
party any unwarranted benefits, advantage or preference in the discharge of his official,
administrative or judicial functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and employees of offices or
government corporations charged with the grant of licenses or permits or other concessions.
xxx"

77 People of the Philippines vs. Arnel Villalba, et aI., 739 SCRA 302, (2014), p. 318
Michael San Juan vs. People of the Philippines, 649 SCRA 300, (2011), p. 313
78

79
80
Rosie Quidet vs. People of the Philippines, 618 SCRA 1. (2010), p. 14
Michael San Juan VS. People of the Philippines, 649 SCRA 300, (2011), p 313
c(
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desiqn." Jurisprudence emphasizes that conspiracy is a product of

intentionality on the part of the cohorts.F Thus, for conspiracy to
exist, it is essential that there must be a conscious design to commit
the offense.F' Accordingly, it is required that a conspirator should
have performed some overt act as a direct or indirect contribution to
the execution of the crime committed."

As noted above, prosecution witness Oegamo himself

unequivocally stated that accused Valenzuela had nothing to do with
the planning or execution of the operation that led to the seizure of
the herein subject materials.

Nonetheless, the prosecution tried to pin the blame on accused

Valenzuela's alleged inaction and interpreted the same as consent
to the pull-out of the pirated materials from the OMS's premises. To
substantiate this claim, the prosecution focused on accused
Valenzuela's alleged reply to Gazzingan - "Kung utos ni Chairman,
wala tayong magagawa" - when they had a conversation about the
said pull-out. 85 However, the veracity of this statement is tainted by
the prosecution's own evidence, exposing discrepancies between
Gazzingan's report dated 08 June 201086 and the said testimony he
gave in open court on 16 February 2016.87 In the aforementioned
report, Gazzingan relayed this response of accused Valenzuela, to
wit:

"xxx While the said persons were conducting the pull-out I contacted
Atty. Cyrus Paul S. Valenzuela through the intercom as he was still
working in the EOO at the time. I informed him of the pull-out being
conducted and he responded by saying that if the said pull-out
involved only the truck and that it was authorized by the
chairman. He had absolutely no problem as far as he is
concerned. xxx"

Here, logic dictates that Gazzingan's statement in his report

given just after or around the time the pull-out happened is a more
accurate depiction of accused Valenzuela's reaction, compared to
his recollection of the conversation he had with the said accused at
the time he testified in court years after the said incident transpired.
Verily, the same statement of Gazzingan in the said report lends
credence to accused Valenzuela's defense that Gazzingan failed to

81 Michael San Juan vs. People of the Philippines. 649 SeRA 300. (2011). p. 313
821d.
831d.
841d.
85 TSN dated 16 February 2016. p. 21-22 CV
86 Records. Vol. I. p. 65 ,
87 Supra. footnote 85
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carry out his instruction to allow only the pull-out of the truck since it
was authorized by the chairman.

It must be borne in mind also that Gazzingan had testified that

the only reason he had contacted accused Valenzuela after the pull-
out was that he thought accused Valenzuela would act for and in
behalf of the chairman. Nothing on record supports this supposition.
In fact, he concedes that accused Valenzuela was not even
authorized to issue a gate pass.

The prosecution further faults accused Valenzuela for not

conducting an investigation or filing a case against the violators after
he received a copy of Asoy's memorandum addressed to Gazzingan
and accused Perez regarding the illegal pull-out of the pirated
materials from the OMB's premises. But, this allegation is
contradicted by the prosecution's own evidence showing accused
Valenzuela's Position Description." Concomitantly, as the Acting
Executive Director/Officer In-Charge of the Legal Division, accused
Valenzuela has the following duties:

"xxx 20% 1. Supervises the implementation of the plans policies and

work programs of the legal department;

20% 2. Makes recommendatory action on a variety of legal

matters/issues to ensure conformity with the law, rules and
regulations or established policy and precedents;

15% 3. Drafts legal opinions for the Board;

15% 4. Reviews legal contracts entered into by the OMB;

10% 5. Assigns work to subordinate personnel, gives instructions

on work methods and procedures;

10% 6. Reviews legal documents/drafts and recommends

corrections or Alternative legal remedies;

10% 7. Designs the legal divisions systems and procedures to

ensure Coordination and harmonious functioning of the Board's
various Divisions. XXX"89

Based on the above enumerated tasks, it is apparent that the

conduct of an investigation and the filing of a case against any violators
are not covered by accused Valenzuela's job description. It bears
stressing that the prosecution's own evidence exhibiting the duties and

88
89
Records, Vol. '", p. 67
Id.
_I
II
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responsibilities'" of accused Arnaldo as an Investigation Agent I, bolsters

accused Valenzuela's argument that the filing of the proper cases is the
responsibility of the investigation agents of the OMB.

It would be the height of injustice if one were to label an accused a

co-conspirator for his supposed failure to perform something that is not
even incumbent upon him to do.

All told, these material inconsistencies present in the prosecution's

own evidence militate against the finding that accused Valenzuela shared
a unity of purpose and intention?' with his co-accused to commit the
offense charged. Without a doubt, the evidence of the prosecution, taken
together, does not meet the test of moral certainty in order to establish
that accused Valenzuela conspired with his co-accused." Consequently,
in the absence of conspiracy between accused Valenzuela and his co-
accused, his liability becomes separate and individual from his co-
accused, in effect, he will be liable for his own acts, the damage caused
thereby, and the consequences thereof. 93

WHEREFORE, premises considered, accused Cyrus Paul S.

Valenzuela's Demurrer to Evidence dated 06 November 2017 is
GRANTED. Accordingly, this case against said accused is hereby
ordered DISMISSED for lack of sufficient evidence to prove his guilt
beyond reasonable doubt.

Likewise, the bail bond posted by herein accused is hereby

ordered CANCELLED and RETURNED to him, subject to the usual
accounting rules and regulations.

The Hold Departure Order issued by this Court, in this case,

against said accused is also LIFTED and SET ASIDE. Let the

90 Records, Vol. III, p. 69

91The Court notes the ruling in the case of Rosie Quidet vs. People of the Philippines, [618 SCRA 1,
(2010), p. 1], citing People vs. Vistido, viz.

"xxx There is no question that 'a person may be convicted for the criminal act of another where,
between them, there has been conspiracy or unity of purpose and intention in the commission
of the crime charged.' It is, likewise, settled that 'to establish conspiracy, it is necessary to prove
previous agreement to commit a crime, if there is proof that the malefactors have acted in
consort and in pursuance of the same objective.' Nevertheless, 'the evidence to prove the same
must be positive and convincing. As a facile device by which an accused may be ensnared and
kept within the penal fold, conspiracy requires conclusive proof if we are to maintain in full
strength the substance of the time-honored principle in criminal law requiring proof beyond
reasonable doubt before conviction. xxx By and large, the evidence for the prosecution failed to
show the existence of conspiracy which, according to the settled rule, must be shown to exist
as clearly and convincingly as the crime itself. In the absence of conspiracy, the liability of the
defendants is separate and individual, each is liable for his own acts, the damage caused
thereby, and the consequences thereof. xxx"

92 Rosie Quidet vs. People of the Philippines (G R. I'-Jo 170289, April 8, 2010) ,j
93 Supra, footnote 91 "
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Commissioner of the Bureau of Immigration be notified accordingly.

SO ORDERED.

"
BAYA~ACINTO
Chairperson/ Asst~ift~ ~ustice
Associate Justice