PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. BERLITO TAGAZA, PLAINTIFF-APPELLANT,
CARANDANG, J.:
The antecedents of the case are as follows:
Berlito issued a Rizal Commercial Banking Corporation (RCBC) check, dated 15 August 1997,1 in favor of private complainant Cresenciana Javier to serve as a replacement for an earlier check that was dishonored2 and which covered a P150,000.00 loan obtained from Cresenciana in November 1995.3 Upon its presentment however, the same was returned having been drawn against insufficient funds.4 As a result, a demand letter was sent to Berlito.5 When the demand remained unheeded, Cresenciana filed a complaint for violation of BP 22. Based on this, Berlito was arraigned and entered a plea of not guilty. During trial, on 2 May 2000, then presiding judge, Hon. Lydia B. Hipolito, ordered the amendment of the information to “indicate the period from July 1995 to July 1997 as probable date of issuance of the check, replacing the phrase sometime in the month of November 1995 as stated in the original information.”6 In that order, Judge Hipolito explained that the amendment was only in form for no substantial rights of Berlito was adversely affected. She likewise noted that Cresenciana’s affidavit-complaint stated in no unclear terms that the check subject of the criminal case was in fact issued sometime in July 1997.7 Nonetheless, Berlito on the basis of the amended information was arrainged anew. He likewise pleaded not guilty to the amended information.8 Immediately thereafter, Judge Hipolito was appointed as Presiding Judge of Branch 23 of the Regional Trial Court. Meanwhile, Judge Tertulo A. Mendoza took over and presided over the subject criminal case. And on 9 August 2004, Judge Mendoza rendered his decision finding Berlito guilty beyond reasonable doubt of violating BP 22.9 The latter appealed the said decision to the Regional Trial Court, and was eventually raffled to Branch 23 which was presided over by Judge Hipolito. On 31 January 2005, Judge Hipolito issued the assailed decision affirming Berlito’s conviction.10 Berlito moved for reconsideration but the same was denied in the RTC’s assailed order of 29 July 2005.11
On petition for review before Us, Berlito raises the following errors:
“I.THE COURT A QUO (RTC Br. 23, CABANATUAN CITY) GRAVELY ERRED WHEN IT AFFIRMED THE ERRONEOUS CONVICTION OF THE PETITIONER BY THE MTCC BR. 2 CABANATUAN CITY BASED ON THE ORIGINAL INFORMATION INSTEAD OF THE AMENDED INFORMATION, TO WHICH THE PETITIONER WAS ALREADY RE-ARRAIGNED.
II.THE COURT A QUO (RTC Br. 23, CANATUAN CITY) PRESIDED BY JUDGE LYDIA HIPOLITO GRAVELY ERRED WHEN IT PARTICIPATED AND AFFIRMED THE ERRONEOUS CONVICTION OF THE PETITIONER IN THE CASE BEFORE THE MTCC BR. 2 CABANATUAN CITY THE TRIAL OF WHICH WAS PRESIDED BY THE SAME JUDGE HIPOLITO WHEN SHE WAS STILL MTCC BR. 2 PRESIDING JUDGE.”12
The present petition is devoid of merit.
Berlito argues that he was twice placed in jeopardy. The first, according to him was when he was arraigned under the original information, while the second was when he was arraigned for the subsequent amended information.
We do not agree. Under the constitutional guarantee against double jeopardy, one is protected from being subsequently prosecuted for a crime which he has previously been acquitted or convicted. Double jeopardy attaches only when, (1) there is a valid complaint; (2) before a competent court; (3) after arraignment; (4) a valid plea is entered; and (5) the person charged was acquitted or convicted or the case against him dismissed or otherwise terminated without his express consent.13 Thus, it is necessary that the first jeopardy has attached or validly terminated prior to the second jeopardy. Unfortunately for Berlito, this is not so. In the present case, the amendment ordered by the MTCC was merely confined to form and did not in any way validly terminate the first jeopardy.
In applying the rules on amendment and substitution of information under Section 14, Rule 110 of the Revised Rules of Criminal Procedure, the Honorable Supreme Court held,
“(a)n amendment which merely states with additional precision something which is already contained in the original information, and which, therefore, adds nothing essential for conviction for the crime charged is an amendment as to form that can be made anytime. Jurisprudence allows amendments to information so long as: (a) it does not deprive the accused of the right to invoke prescription; (b) it does not affect or alter the nature of the offense charged; (c) it does not involve a change in the basic theory of the prosecution so as to require the accused to undergo any material change or modification in his defense; (d) it does not expose the accused to a charge which would call for a higher penalty; and (e) it does not cause surprise nor deprive the accused of an opportunity to meet the new averment.”14
In this case, the amendment merely consisted in correcting the probable date the subject RCBC check was made. A review of the transcript readily reveals that while the loan was obtained sometime in November 1995, several worthless checks were given to cover for the said loan, the last of which was the subject RCBC check given sometime in July 1997 but postdated to 15 August 1997.15 The complaint filed by Cresenciana also states that the subject check was offered to her sometime in July 1997. Clearly, the correction was merely to add “precision” to the fact that Berlito made and issued the RCBC check that bounced, a fact which was already laid down in the original information. Thus, the prosecution’s theory never changed. And as such, the amendment or, more precisely, the correction could not have been detrimental to Berlito’s defense since the same remained applicable even after the said correction was made. With that, the first jeopardy never attached for it was but proper and correct for the MTCC to order the amendment.
Next, Berlito argues that the MTC erred in convicting him on the basis of the original information. While we are one with Berlito that the original information was already superseded by the amended one, We do not agree that the MTCC erred in convicting him on the basis of the latter. While the MTCC inadvertently made reference to the original information, it is obvious that it was referring to the amended one precisely because the original one was already replaced. It cannot be denied that the amended information has taken the place of the original one and that Berlito was being prosecuted under the said amended information for he was re-arraigned based on it. More importantly, the evidence submitted and received by the MTCC was for that same amended information which was eventually considered and made the basis for Berlito’s conviction below, thus:
“The evidence of the prosecution as offered by the trial prosecutor consists of RCBC Check No. 060534 issued by the accused that bounced due to insufficiency of funds when presented for payment with the drawee bank, Exhibit “A”. Exhibit “B” is the bank return slip, meaning the check was returned for reasons of “DAIF”. Upon its return to the complainant, a demand letter was sent to the accused, Exhibit “C”. The evidence showing the obligation incurred and signed and executed by the accused is the Promisory Note Exhibits “D”. Lastly, the profile of the accused, Exhibit “E” the purpose for which it was offered is to show the identity of the accused, together with the aforementioned exhibits are all deemed considered admitted and duly noted in the resolution of the case.
Again, the records show that accused failed to controvert the facts and evidence of the prosecution. Thus, the court is convinced and is morally certain that the crime imputed upon the accused has been committed and the accused deserves to suffer the penalty which the law provides and to be imposed upon him.”16
Now, considering that the gravamen of the offense under BP 22 is the act of making or issuing a worthless check and the mere issuance of such is malum prohibitum17, Berlito’s conviction was indeed in accordance with law and with the evidence at hand, and the RTC did not err in affirming the same.
In fact, Berlito already raised this point on appeal before the RTC.18 And to this, the RTC similarly found that since Berlito was arraigned under the amended information the MTCC’s reference to the original one was “just a mere oversight.”19 Nothing can be clearer.
Finally, Berlito questions the propriety of Judge Hipolito’s act in taking cognizance of the case considering that she presided over the trial of the criminal case when she was still MTCC judge of branch 2. He anchors his argument on Rule 3, Canon 3 of the Code of Judicial Conduct (CJC), thus:
“DISQUALIFICATION
Rule 3.12.- A judge should take no part in a proceeding where the judge’s impartiality might be reasonably questioned. These cases include, among others, proceedings where:
x x x
(c) the judge’s ruling in a lower court is subject of review.
REMITTAL OF DISQUALIFICATION
Rule 3.13.- A judge disqualified by the terms of Rule 3.12 may, instead of withdrawing from the proceeding, disclose on the record the basis of disqualification. If based on such disclosure, the parties and lawyers independently of the judge’s participation, all agree in writing that the reason for the inhibition is immaterial or insubstantial, the judge may then participate in the proceeding. The agreement signed by the parties, shall be incorporated in the record of the proceeding.”
Again, We do not agree with Berlito. The disqualification referred to in par. (c), Rule 3.12, Canon 3 of the CJC involves the review of the judge’s “ruling in a lower court. Here, the decision reviewed by Judge Hipolito was not her decision but that of Judge Mendoza, the very same judge who took over and continued to preside over the rest of the trial of the criminal case of Berlito. Clearly, Judge Hipolito was not disqualified. To be sure, Rule 137 of the Rules of Court also provides for the disqualification of judges, to wit:
“SECTION 1. Disqualification of judges. – No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record.”
The above rule like that Canon 3 of the CJC, proscribe the review of a judge’s own decision rendered in an inferior court.
Withal, We find no justifiable reason to reverse or set aside the decision and the order of the RTC.
WHEREFORE, the instant petition is DISMISSED for lack of merit.
SO ORDERED.
Dacudao, and Perlas-Bernabe, JJ., concur.
1 RCBC Check dated 15 August 1997, pp. 7 and 54, RECORD
2 DBP Check dated 21 February 1997, p. 141, RECORD
3 Promissory Note, p. 66, RECORD
4 Bank Return Slip, pp. 7 and 55, RECORD
5 Demand Letter, pp. 8 and 56, RECORD
6 Comment, p. 64, ROLLO
7 MTCC Order dated 2 May 2000, pp. 80-81, RECORD
8 Comment, p. 64, ROLLO
9 MTCC Decision, pp. 29-30 and 59-60, ROLLO
10 RTC Decision, pp. 6-9, ROLLO
11 RTC Order, pp. 10-11, ROLLO
12 Petition, p. 17, ROLLO
13 Estrada v. Disierto, 356 SCRA 108, 146-147
14 Gabionza v. CA, 355 SCRA 759, 764-765
15TSNs, 1 February 2000, pp. 3-4; 22 January 2003, pp. 3-4
16 MTCC Decision, p. 30 and 60, ROLLO
17 Ngo v. People, 434 SCRA 522, 530-531
18 Appeal Memorandum, p. 188, RECORD
19 RTC Decision, p. 7, ROLLO