G.R. No.

94713 November 23, 1995

MANSION BISCUIT CORPORATION, represented by its president, ANG CHO HONG, petitioner,
vs.
COURT OF APPEALS, TY TECK SUAN substituted by his heirs, ROSENDA TY, ELIZABETH TY
KOH, EDWARD TY, EDMUND TY, EDGAR TY, EVELYN T. LIM, EDWIN TY and EDISON TY, and
SIY GUI, respondents.

KAPUNAN, J.:

The instant petition for review seeks the reversal of the decision of the Court of Appeals dated May
8, 1990 dismissing petitioner's appeal of the civil aspect of Criminal Cases Nos. 5598-V-83 entitled
"People of the Philippines v. Ty Teck Suan" and 5599-V-83 entitled "People of the Philippines v. Ty
Teck Suan and Siy Gui", both for violation of Batas Pambansa Bilang 22, otherwise known as the
Bouncing Checks Law.

The established facts are as follows:

Sometime in 1981, Ty Teck Suan, as president of Edward Ty Brothers Corporation, ordered

numerous cartons of nutri-wafer biscuits from Mansion Biscuit Corporation. Before the delivery of the
goods on November 12, 1981, Ty Teck Suan issued to Ang Cho Hong, president of Mansion, four (4)
postdated checks totaling P404,980.00 as payment for the nutri-wafer biscuits. 1 Four (4) other
postdated checks in the amount of P100,000.00 each, 2 were issued by Ty Teck Suan with Siy Gui as co-
signor in December of the same year.

Accordingly, Mansion Biscuit Corporation delivered the goods from November 12, 1981 to January
7, 1982, inclusive. 3

When the first four checks dated December 24, 1981, January 2, 1982, January 9, 1982 and
January 16, 1982 were deposited, they were all dishonored due to insufficiency of funds. 4 Ang Cho
Hong informed Ty Teck Suan of the dishonor and requested him to replace the checks with cash or good
checks. Ty Teck Suan failed to heed said request. 5

Subsequently, Ty Teck Suan delivered a total of 1,150 sacks of Australian flour to Mansion Biscuit on
February 11, 1982, February 22, 1982 and March 8, 1982. Said deliveries plus cash advanced by Ty
Teck Suan in December 1981 amounted to P162,500.00. 6 The same amount was applied by Mansion
Biscuit as payment for the first postdated check issued by Ty Teck Suan in the amount of P104,980.00.
(This resulted in the exclusion of the first check from the information which was later filed against Ty Teck
Suan. 7)

On March 1, 1982, Ang Cho Hong sent Ty Teck Suan a formal demand letter 8 requesting that the
latter make good the value of the dishonored checks within five (5) days from receipt thereof. 9 Thereafter,
the second batch of checks issued by Ty Teck Suan and Siy Gui dated March 20, 1982, April 10, 1982,
May 1, 1982 and May 22, 1982 all became due and payable but on deposit, they were all dishonored
again. 10 On August 3, 1982, Mansion Biscuit, through its counsel, sent a final demand letter 11 informing
Ty Teck Suan that it would be constrained to file an action against him should he continuously refuse to
pay.

Ty Teck Suan having failed to meet his obligation, an information for violation of Batas Pambansa
Blg. 22 (Bouncing Checks Law) was filed against him before the Regional Trial Court, Branch 172 in
Valenzuela, Metro Manila on February 16, 1983. Docketed as Criminal Case No. 5598-V-83, the
same reads:

That on or about and during the month of January, 1982, in the municipality of
Valenzuela, Metro Manila, Philippines, and within the jurisdiction of this Honorable
Court, the said accused Ty Teck Suan, knowing fully well that he has no sufficient
funds with the Rizal Commercial Banking Corporation, Quezon Avenue Branch, did
then and there wilfully, unlawfully and feloniously prepare, issue and make out, for
value check No. 034847 dated January 2, 1982, in the amount of P100,000.00,
check No. 034848 dated January 9, 1982, in the amount of P100,000.00, and check
No. 034849 dated January 16, 1982, in the amount of P100,000.00 drawn against
the said bank in payment of cartons of Nutri-Wafer biscuits purchased from the
Mansion Biscuit Corporation, represented by Ang Cho Hong, President thereof, by
the Edward Ty Brothers Corporation thru said accused Ty Tech Suan, but the said
checks upon presentation with the said bank for deposit and verification of sufficiency
of funds was (sic) dishonored and refused payment on the ground of "insufficient
funds", and despite repeated demands to make good said checks or redeem the
same within five (5) banking days from demands, said accused failed and refused to
do so, to the damage and prejudice of the said Mansion Biscuit Corporation, in the
total amount of P300,000.00.

Contrary to law. 12 (Emphasis ours)

An identical information for violation of B.P. Blg. 22, docketed as Criminal Case No. 5599-V-83, was
likewise filed against Ty Teck Suan and Siy Gui, the treasurer of the Edward Ty Brothers
Corporation, for their having issued checks Nos. 10698023, 10698024, 10698025 and 10698026
drawn against the Equitable Banking Corporation and respectively dated March 20, 1982, April 10,
1982, May 1, 1982 and May 22, 1982 for the amount of P100,000.00 each or in the total sum of
P400,000.00. The checks were allegedly issued in payment for cartons of nutri-wafer biscuits
purchased from Mansion Biscuit but were refused payment for insufficiency of funds upon
presentment at the said bank. 13

Ty Teck Suan and Siy Gui pleaded not guilty to the charges. In the course of the trial, complainant
Ang Cho Hong filed a verified motion for the issuance of a writ of attachment. Even as the accused
filed a bond in the amount of P700,000.00, the court issued an order of attachment on some of his
real properties on November 26, 1984. 14

After the prosecution rested its case, Ty Teck Suan filed a motion to dismiss by way of demurrer to
evidence, which Siy Gui likewise adopted as his own. The motion to dismiss was based on the
following grounds: (a) the subject checks were issued merely to guarantee or secure fulfillment of
the agreement with the complainant; (b) the four Equitable Banking Corporation checks were issued
by the accused only as replacement for the four Rizal Banking Corporation checks issued by Ty Teck
Suan alone, and (c) the trial court had no jurisdiction over the offense. 15
On October 12, 1987, after the prosecution filed an opposition to the motion to dismiss, the trial
court, presided by then Judge Teresita Dizon-Capulong, 16 issued an order granting the motion to
dismiss, stating that:

On issuance of checks prior to August 8, 1984 when the Ministry of Justice ruled
otherwise, the defense of issuance of checks to guarantee the payment of an
obligation was still a valid defense. The transaction between the accused Ty Teck
Suan and the complaining witness occurred in the months of March, April and May
1982 in Criminal Case No. 5599-V-83; and during the month of January 1982 in
Criminal Case No. 5598-V-83. The jurisprudence in connection with the issuance of
checks which were dishonored after issuance but which checks were issued to
guarantee payment (sic) an obligation are still applicable to both accused. Supreme
Court rulings where issuance of bouncing check is neither estafa nor violation of BP
22 are enunciated in Virginia Montano vs. Josefino Galvez, June 19, 1981; Alice
Quizon vs. Lydia Calingo, October 23, 1981; Alfredo Guido vs. Miguel A. Mateo, et
al., November 17, 1981; Zenaida Lazarao vs. Maria Aquino, August 7, 1981.
The stare decisis in these cases is where the check is issued as part of an
arrangement to guarantee or secure the payment of an obligation, whether pre-
existing or not the drawer is not criminally liable for either Estafa or Violation of BP
Blg. 22.

xxx xxx xxx

Therefore, the Court concludes that the issuance of the above-mentioned checks by
the accused subject of these two criminal cases, and their subsequent dishonor
cannot be considered in Violation of BP 22 because one important element of the
offense is missing; that the check is made or drawn and issued to apply on account
or for value and because these were issued to guarantee the fulfillment of an
agreement to deliver biscuits by complainant when accused Ty Teck Suan would
place orders. 17

In the same order of dismissal, Judge Capulong found that accused Siy Gui's liability had not been
established by the prosecution as it appeared that he had no personal transactions with the
complainant although he was a co-signatory in the second batch of four checks. 18 The dispositive'
portion of the above-mentioned order reads:

WHEREFORE, the Court finds merit in the Motion to Dismiss based on Demurrer to
Evidence. Both accused are hereby declared not guilty of the offense charged in the
Information in both cases. The bail bonds posted for their provisional liberty are
ordered CANCELLED.

Consequently, the Order of Attachment issued in this case is hereby set aside.

SO ORDERED. 19

The prosecution then filed a motion for reconsideration and for clarification as to the civil aspect of
the criminal actions which were deemed impliedly instituted therein. 20 The defense opposed the
motion.
On October 30, 1987, the lower court denied the motion on the ground that:

. . . no civil liability can be enunciated and enforced in this (sic) criminal cases due to
the acquittal of both accused. Above-cited liability of both accused if any, can be
ventilated and enforced only in a separate action on the agreement guaranteed by
the checks. . . . 21

Thus, on November 11, 1987, the petitioner filed a special civil action of certiorari and
injunction with the Court of Appeals, docketed as CA-G.R. SP No. 13264, questioning only
the propriety of the trial court's order setting aside the order of attachment. 22

On February 22, 1988, the Court of Appeals rendered a decision 23 annulling and setting aside the
questioned portion of the order dated October 17, 1987 which set aside the writ of attachment.

Meanwhile, petitioner Mansion Biscuit Corporation filed another appeal to the Court of Appeals,
docketed as CA-G.R. CV No. 16580, this time assailing the trial court's ruling absolving defendants
from civil liability in the criminal cases. Petitioner contended that the acquittal of the accused in the
criminal cases did not necessarily extinguish their civil liability, citing Padilla v. Court of
Appeals, 24 People v. Jalandoni, 25 Maximo v. Gerochi, Jr. 26 and People v. Relova. 27

On January 10, 1989, while the appeal was pending with the Court of Appeals, Ty Teck Suan died. A
motion to dismiss the appeal concerning him pursuant to Section 21, Rule 3 of the Rules of Court
was filed by his counsel. This was opposed by petitioner. 28 In the resolution of January 8, 1990, the
Court of Appeals denied the motion to dismiss for lack of merit and granted the substitution of appellee Ty
Teck Suan by his children named Rosenda Ty, Elizabeth Ty Koh, Edward Ty, Edmund Ty, Edgar Ty,
Evelyn T. Lim, Edwin Ty and Edison Ty. 29

On May 8, 1990, the Court of Appeals rendered a decision 30 dismissing the appeal for lack of merit. It
held that the civil liability sought to be enforced by the complainant was not the personal obligation of Ty
Teck Suan but a contractual liability of Edward Ty Brothers Corporation of which Ty Teck Suan was the
president. The civil liability of Edward Ty Brothers Corporation to Mansion Biscuit was not litigated and
resolved in the criminal cases because Edward Ty Brothers Corporation was not a party thereto.
Accordingly, the appellate court held that a separate civil action should be instituted by petitioner against
Edward Ty Brothers Corporation.

Their motion for reconsideration having been denied, petitioner came to this Court by way of the
instant petition for review alleging that respondent Court of Appeals erred in: (a) limiting its appeal to
civil liability arising from contract; (b) refusing to acknowledge the quasi-delict or tort committed by Ty
Teck Suan; (c) insisting that the contractual liability could not be enforced against Ty Teck Suan; (d)
not ruling that Ty Teck Suan, by his actuations, had personally assumed liability, and (e) disregarding
the conclusive findings of the Court of Appeals in CA-G.R. No. SP No. 13264. 31

Petitioner contends that "when Ty Teck Suan committed the illegal act of insuring and delivering
worthless checks as advance payment, thus successfully inducing Ang Cho Hong, president of
Mansion, to deliver several hundred cartons of nutri-van biscuits, two (2) civil liabilities arose,
namely: (1) the civil liability arising from crime under Article 100 of the Revised Penal Code, and (2)
the civil liability arising from tort or quasi-delict." 32 Petitioner further alleges that when Ty Teck Suan and
Siy Gui were acquitted in the criminal cases, "only the civil liability arising from crime was extinguished"
pursuant to Article 100 of the Revised Penal Code, but their civil liability based on quasi-delict remained.
Private respondents, on the other hand, asseverate that Ty Teck Suan and Siy Gui could not be held
liable for a contractual liability of the corporation which they represented. They maintain the view that
petitioner must file a separate civil action against Edward Ty Brothers Corporation inasmuch as the
latter is the real party in interest and was not a party to the criminal cases filed against them which
are subject of the present petition for review.

We are thus confronted with the issue of whether or not the petitioner can enforce the civil liability for
non-payment of the nutri-wafer biscuits in question against private respondents notwithstanding the
fact that the latter contracted the agreement in behalf of Edward Ty Brothers Corporation.

We rule in the negative.

The civil liability for non-payment of the nutri-wafer biscuits delivered by petitioner to the Edward Ty
Brothers Corporation cannot be enforced against the private respondents because the said civil
liability was not the personal liability of Ty Teck Suan to Mansion Biscuit Corporation, rather, it was
the contractual liability of Edward Ty Brothers Corporation, of which Ty Teck Suan was president, to
Mansion Biscuit Corporation. This is borne out by the records of the case. The information in
Criminal Cases Nos. 5598-V-83 and 5599-V-83 filed against Ty Teck Suan and Siy Gui reveal that
the checks were issued "in payment of the cartons of nutri-wafer biscuits purchased from the
Mansion Biscuit Corporation, represented by Ana Cho Hong, president thereof, by Edward Ty
Brothers Corporation thru said accused Ty Teck Suan." 33 Moreover, petitioner itself admitted that the
contract was executed by and between Edward Ty Brothers Corporation, represented by its president, Ty
Teck Suan, and Mansion Biscuit Corporation, 34 likewise represented by its president, Ang Cho Hong. This
was correctly observed by respondent Court of Appeals in its assailed decision and we quote:

The civil liability which the complainant seeks to enforce is the unpaid value of the
nutri-van biscuits which were allegedly ordered by Ty Teck Suan from complainant
and delivered by the latter between 12 November 1981 and the first week of January
1982. It is apparent from the record, however, that this civil liability is not the personal
liability of Ty Teck Suan to private complainant Ang Cho Hong. It is the contractual
liability of Edward Ty Brothers Corporation of which Ty Teck Suan was president, to
Mansion Biscuit Corporation, of which Ang Cho Hong was president. This is clear
from the Statement of Facts in plaintiffs-appellant brief, the relevant and pertinent
portions of which read:

Sometime in 1981, Teck Suan, as president of Edward Ty Brothers Corporation

ordered numerous cartons of nutri-van biscuits from Mansion Biscuit Corporation. As
payment for these goods, Ty Teck Suan issued four (4) postdated checks amounting
P404,980.00. These checks were delivered to Mr. Ang Cho Hong, President of
Mansion biscuit corporation sometime during the first week of November, 1981 (p.
17, tsn of March 14, 1984). (at p. 10 of Brief, Emphasis ours.)

xxx xxx xxx

These goods were received by Ty Teck Suan, through Edward Ty

Brothers Corporation as its Consignees, and this was evidenced by
the different receipts that have been issued by Edward Ty Brothers
Corporation and its Consignees . . ., as well as by the "authority to
deliver" documents issued by Edward Ty Brothers Corporation . . .
 and signed by one Elizabeth Ty Kho, the daughter of Ty Teck Suan
(p. 24, tsn of June 13, 1984). (at pp. 11-12, ibid) Likewise, the
informations uniformly state that the checks were "in payment of
cartons of Nutri-Wafers biscuit purchased from the Mansion Biscuit
Corporation, represented by Ang Cho Hong, President thereof, by the
Edward Ty Brothers Corporation thru said accused Ty Teck Suan . . .

It is quite obvious from the foregoing that Ty Teck Suan did not purchase the biscuits
for himself but for Edward Ty Brothers Corporation in his capacity as its president.
Neither did Ang Cho Hong sell and deliver the biscuits in his personal capacity but for
and in behalf of Mansion Biscuits Corporation of which he was president. The issue
of the civil liability of Edward Ty Brothers Corporation to Mansion Biscuits
Corporation arising from the contract of purchase and sale between them could not
have been and was not litigated and resolved in the criminal case inasmuch as they
were not parties therein. A separate civil action must be instituted by Mansion
Biscuits Corporation against Edward Ty Brothers Corporation to enforce the contract
between them. 35

With respect to the issue of tortious liability, the respondent court had this to say:

Another telling circumstance against plaintiff-appellant's posture is his statement of

the sole issue to be resolved in this appeal, to wit:

Statement of Issues

Whether or not plaintiff-appellant has established his right to the

payment of the goods he delivered to defendants-appellees.

It is quite clear from the foregoing that plaintiff-appellant is enforcing a contractual,

not a tortious, liability.

Assuming that plaintiff-appellant has basis for his quasi-delict claim, the same must
be addressed still against Edward Ty Brothers Corporation for the established facts
show that the post-dated checks were issued by accused-appellee not in payment of
his personal obligations but of the corporation's. Moreover the fraud allegedly
committed by accused-appellee was merely incidental to the contractual obligation,
not an independent act which could serve as a source of obligation. The cases cited
by plaintiff-appellant, to illustrate that the existence of a contract does not preclude
an action on quasi-delict where the act that breaks the contract constitutes a quasi-
delict, have no application because the acts complained of therein were performed to
break an existing contract, whereas the alleged fraud herein was committed at the
time of the creation of the contractual relationship and as an incident thereof. 36

Necessarily, any claim for tortious liability must be ventilated in a separate action against the proper
party.

As a sidelight, we would like to reiterate our ruling in People v.

Bayotas, 37 where we summarized the rules with respect to recovery of civil liability arising from crime and
other sources, to wit:
 1. Death of the accused pending appeal of his conviction extinguishes his criminal
liability as well as the civil liability based solely thereon.

2. Corollarily, the claim for civil liability survives notwithstanding the death of
accused, if the same may also be predicated on a source of obligation other than
delict. Article 1157 of the Civil Code enumerates these other sources of obligation
from which the civil liability may arise as a result of the same act or omission:

a) Law

b) Contracts

c) Quasi-contracts

d) . . .

e) Quasi-delicts.

3. Where the civil liability survives, as explained in Number 2 above, an action for
recovery therefor may be pursued but only by way of filing a separate civil action and
subject to Section 1, Rule III of the 1984 Rules on Criminal Procedures as amended.
This separate civil action may be enforced either against the executor/administrator
or the estate of the accused, depending on the source of obligation upon which the
same is based as explained above.

4. Finally, the private offended party need not fear a forfeiture of his right to file this
separate civil action by prescription, in cases where during the prosecution of the
criminal action and prior to its extinction, the private-offended party instituted together
therewith the civil action. In such case, the statute of limitations on the civil liability is
deemed interrupted during the pendency of the criminal case, conformably with
provisions of Article 1155 of the Civil Code, that should thereby avoid any
apprehension on a possible privation of right by prescription. 38

In the case at bench, the acquittal of Ty Teck Suan and Siy Gui extinguished both their criminal and
civil liability as it is clear from the order acquitting them that the issuance of the checks in question
did not constitute a violation of B.P. Blg. 22. Consequently, no civil liability arising from the alleged
delict may be awarded.

WHEREFORE, premises considered, the judgment appealed from is hereby AFFIRMED in toto.

SO ORDERED.

Court of Appeal, First District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. Gamaliel ELIZALDE et al.,
Defendants and Appellants.

A132071
Decided: November 19, 2013
I.INTRODUCTION

This case involves four victims: Antonio Centron, Luis Perez, Lisa Thayer and Rico McIntosh.
Defendant Javier Gomez was found guilty of the second degree murder of McIntosh and the jury found
true enhancements for participating in a criminal street gang and intentionally discharging a firearm
causing bodily injury or death. A second jury found defendants Mota and Elizalde 1 , guilty of the first
degree murder of Centron, Perez and McIntosh and came back with an acquittal as to Lisa Thayer. The
jury also found Mota and Elizalde guilty of conspiracy to commit murder, participating in a criminal street
gang and found true enhancements for participating in a criminal street gang. As to Mota, the jury found
true an enhancement for intentionally discharging a firearm causing great bodily injury or death.
Elizalde was also found guilty of dissuading a witness by force or threat of force.

On appeal, Gomez argues that (1) the trial court had a sua sponte duty to instruct the jury that an
unforeseeable supervening cause might have caused Rico McIntosh's death (Elizalde and Mota join in this
argument); (2) the trial court did not properly answer the jury's questions regarding the elements of
second degree murder (Elizalde joins in this argument); (3) the trial court erred in permitting testimony
regarding threats to witnesses (Elizalde and Mota join in this argument); and (4) the trial court erred
when it failed to instruct the jury that witness Oscar Menendez was an accomplice as a matter of law
(Elizalde and Mota join in this argument).

Mota argues that the trial court erred when it (1) found that there was no prima facie case of
discrimination with regard to an AfricanAmerican prospective juror (Gomez and Elizalde join in this
argument); (2) gave the jury the task of determining whether four witnesses were accomplices (Gomez
and Elizalde join in this argument); (3) admitted into evidence a statement Mota made during booking
regarding his gang affiliation (Gomez and Elizalde join in this argument); (4) instructed the jury not to
speculate about why unjoined perpetrators were not tried in the same trial (Gomez and Elizalde join in
this argument); and (5) admitted evidence that Mota attacked Jorge Sanchez in jail (Gomez and Elizalde
join in this argument). He also argues that (6) during his rebuttal to the defense's closing argument, the
prosecutor committed misconduct (Gomez and Elizalde join in this argument); and (7) there was
cumulative error.

Elizalde contends on appeal that (1) there is not substantial evidence to support the jury's conspiracy
finding (Gomez and Mota join in this argument); (2) the trial court failed in admitting phone calls
between Hector Molina and his mother under the co-conspirator exception to the hearsay rule (Gomez
and Mota join in this argument); (3) trial counsel was ineffective for failing to seek redaction of a
statement Elizalde made to Molina's mother during one of these jail calls; (4) the trial court erred when it
instructed the jury, pursuant to CALJIC No. 3.13, that the required corroboration of the testimony of an
accomplice may not be supplied by the testimony of any other accomplice (Gomez and Mota join in this
argument); (5) the trial court erred when it admitted evidence that Elizalde possessed methamphetamine
for sale to prove a predicate offense for the gang charge and enhancements (Gomez and Mota join in this
argument); (6) counsel was ineffective for failing to object to other crimes evidence regarding the
conspiracy to commit murders (Gomez and Mota join in this argument); and (7) there was cumulative
error.

With the exception of the admission of Mota's un-Mirandized2 statements made when he was booked into
jail, an error that was not prejudicial, we find no other error and affirm the judgments.

II.FACTUAL AND PROCEDURAL BACKGROUND

A.The Murders

Defendants Mota and Elizalde were convicted of three murders that occurred over a four-month period
between December 22, 2007, and April 25, 2008. Gomez was convicted of one of the three, that of Rico
McIntosh. The most significant testimony regarding these murders came from fellow gang members
and/or friends, Jorge Sanchez (Centron murder), Victor Cervantes (Centron murder), Oscar Menendez
(McIntosh murder), and Larry Valencia (Perez murder).
1.Antonio Centron Murder

Jorge Sanchez testified that in exchange for his testimony he pled to accessory after the fact to murder,
and received a three-year suspended sentence. Sanchez, who was not in the country legally, also had a
parole in place arrangement with Immigration and Customs Enforcement and, as a result, wore an
ankle bracelet monitor. Sanchez testified that he was a member of Varrio Frontero Loco 3 , a subset of
the Sureo gang, which is active in Contra Costa County.

The evening of December 22, 2007, Francisco Romero, who was also a Varrio Frontero Loco, gathered
together a number of people and went to North Richmond. 4 When he arrived, Molina phoned defendant
Gamaliel (Gama) Elizalde5 because supposedly he was going to put a meeting to go up there, just fight
them [the Richmond Sur Trace members]. After speaking to Romero, Elizalde came to North
Richmond. Elizalde then tried to call a Richmond Sur Trace member in order to arrange a fight but was
not able to reach anyone.

After the failed effort to engage the Richmond Sur Trace, Sanchez, Romero and Molina eventually drove
to the Broadway area of San Pablo, which was known to be Norteo territory. Sanchez understood that if
they found Norteos there they would beat them up or shoot them. He understood this was part of the
deal of being a [Varrio Frontero Loco] Sureo at this time.

That same evening, the victim, Antonio Centron, along with two friends, Neil Wixson and Adrian
Espinoza, attended a party in the Broadway area of San Pablo. They stayed at the party for a couple of
hours and then walked down Lake Street, toward 19th Street to buy beer. This area of San Pablo was a
stronghold of the Norteo gang. Wixson and Centron wore red shirts, a color associated with Norteos.
Centron walked a little ahead of his friends.

Romero drove by Centron, Wixson and Espinoza. Molina, who was in the right front passenger seat, told
Romero he knew one of the three men. Molina pulled out a handgun and directed Romero to park down
the next street. Romero parked and Molina ran out, and hid behind a fence, waiting for Centron, Wixson
and Espinoza to come to the corner. When they did, Molina told them he was VFL and emptied his
gun in their direction. His first shot hit Centron in the head. Centron died almost immediately. Nine
more shots hit Espinoza in the back. Molina's final shot hit Wixon in the arm. Espinoza, who was still
conscious (and ultimately survived his injuries) called 911.

After killing and wounding the men he believed were rival gang members, Molina ran back to the car and
they sped off. In the car, Molina was jumpy and excited. According to Sanchez, Molina said to watch
the newspaper. That'sthat was going to be his trophy. A newspaper article about a killing was [l]ike
a signature that you did it. The killing would give Molina more respect in the gang. Molina called
Elizalde to tell him what he'd done. Elizalde arrived and just started telling him just be quiet, stop, you
know, screaming and just lay low.

The next day, the police detained and searched Molina. They found in his possession a .45 caliber
chrome Colt semiautomatic handgun, a blue bandana, and a blue baseball hat. The police arrested him
and charged him with possession of a concealed firearm. Molina was released from jail four days later.

Victor Cervantes testified that right after Molina got out of jail, he called Cervantes and asked for a ride
home. Molina told him that he'd killed one man and another was in a coma. He also told Cervantes
that he'd been with Francisco Romero when he'd killed the man. Cervantes asked him how he got out of
jail when he'd been caught with a gun. Molina told him that he got caught with a different gun than the
one used in the killing and, as a result, he had gotten away with murder.

In an interview with the police, Luis Ruelas testified that Molina admitted to him that he was in the car
with Romero and Sanchez that evening and that Molina said he had shot at three men and killed one of
them.

Defendants Elizalde and Mota were found guilty of Centron's murder as co-conspirators.
2.Luis Perez Murder

Larry Valencia was one of the prosecution's main witnesses with regard to the murder of Luis Perez.
Valencia had not made a plea bargain with the District Attorney's office, nor was he receiving any witness
protection or money from the District Attorney's office.

Valencia testified that late on the night of February 16, 2008, he decided to visit friends in North
Richmond. After an evening of drinking beer, smoking marijuana and taking Ecstasy someone said,
[l]et's jump for a ride. Let's go find some females to party. Hector Molina, Jorge Camacho, and Jose
Mota got into Mota's black, two-door Kia. Molina sat in the driver's seat, with Jorge Camacho next to him
in the passenger seat and Mota in the back. Cole Azamar and Luii Hernandez got into Azamar's car, with
Azamar driving and Hernandez sitting in the passenger seat. All five men were members of Varrio
Frontero Loco. They encouraged Larry Valencia (who testified that he was not a gang member) to join
them and he got into the back seat of Azamar's car. After the two cars drove around for a while, with
Azamar following Molina, they arrived in San Pablo. Valencia was aware that this was Norteo territory.

Molina stopped the car and Valencia saw the people in Mota's car arguing with a man in a red jacketthe
victim, Luis Perezwho was standing next to the car. He saw Camacho get out of the car and say to the
man, [s]how me your hands, show me your hands. The man yelled [w]hat the fuck is going on?
Valencia heard three loud shots and saw Camacho shoot the man three or four times. In fact, Camacho
hit Perez seven times: two bullets to the abdomen, two to the back and three to the back of his arms.
The bullets passed through Perez's lungs, heart and liver. Perez died en route to John Muir Hospital in
Walnut Creek.

Camacho got back into the car with Molina and Mota and Molina drove away. Valencia had never seen
anyone killed before. Valencia told Azamar to take him back to his car so he could go home.

Mota was found guilty of Perez's murder on an aider and abettor theory. Elizalde was found guilty as a
co-conspirator.

3.Lisa Thayer

The third victim, Lisa Thayer, died when Jorge Camacho, a member of Varrio Frontero Loco, exchanged
shots with several unidentified men in a Toyota minivan.

This altercation began late in the afternoon of February 27, 2008. Camacho and his friend Antonio
Solomon, were walking on San Pablo Avenue in San Pablo.6 Solomon was wearing a New York Yankees
hat. In that area, that kind of hat was understood to stand for Young Narfer, a reference to North
Richmond, which was Sureo territory.

A burgundy Toyota minivan with a Hispanic driver and front seat passenger and AfricanAmerican
passenger in the back seat passed Solomon and Camacho. Solomon and Camacho ran.

The men in the minivan chased them. Eventually, the minivan pulled up behind Solomon and Camacho.
The side door opened, revealing that the back seat passenger had a gun. Camacho shot at the van with
the same 9 mm semiautomatic handgun he used to kill Perez. He fired nine times. The man in the van
also fired a .40 caliber semiautomatic handgun several times.

Lisa Thayer, who was walking on San Pablo about half a block from the shooting, was hit by a bullet. The
bullet hit her in the back, went through her right lung and came out at her chest. Thayer died soon
afterwards.

Solomon and Camacho ran from the scene with the van following them. Someone in the van fired
several more shots at them. Soloman and Camacho climbed a fence and ran to the apartment of a friend
Ignacio Mendoza. When Mendoza's mother told them to leave, Camacho gave his gun to Mendoza and
left with Solomon. The police arrived nearby, a witness pointed them out and they were arrested.
Camacho had a blue bandana in his pocket.

The jury found defendants Mota and Elizalde not guilty of Thayer's murder.

4.Rico McIntosh

The fourth shooting occurred in the early morning hours of April 26, 2008. Oscar Menendez, who was
present at the shooting, testified that he had pleaded to accessory to the murder of McIntosh with a gang
enhancement. He was given three years probation. As a condition of his plea, he agreed to testify in
court. At the time he testified he was in parole in place, which meant he wore an ankle monitor
required by Immigrations, Customs and Enforcement. The People were assisting him in obtaining a
work permit. Menendez had not violated any of the terms of his probation or the terms and conditions
imposed by Immigration, Customs and Enforcement. He did not receive any money from the District
Attorney's office.

Menendez testified that he had known Mota for several years. Mota was a member of Varrio Frontero
Loco. Menendez also knew Javier Gomez. The three of them hung out together and sometimes we used
to get in the car and just cruise around. Gomez belonged to a Sureo subset called Mexican
Loco.7 Menendez had been at parties where members of the two Sureo subsets would brag about crimes
they have done during the week or, you know, any stuff that they doing, you know, like beating somebody
up or robbing people or whatever crimes they do, they used to brag about all of the time. Six months
before the McIntosh murder, Menendez became a Sureo.

Menendez described an incident that occurred about a week and a half before the McIntosh murder. He,
Gomez and Mota went to visit Gomez's cousin who lived in Montalvin, which was Norteo territory.
Mota drove his Kia, and Gomez sat in the front passenger seat. Menendez sat in the back. The cousin
wasn't home, so they turned around to return to Richmond. As they did so, Gomez and Mota saw a man
wearing red who was fixing his car. Mota and Gomez said he was a Buster. He was wearing red
Menendez didn't agree and when he saw that Gomez and Mota had a gun8 in the front seat he told them
to drop the gun. Menendez tried to grab the gun and in the ensuing scuffle, someone shot Menendez in
the leg.

Menendez was bleeding heavily, so Mota and Gomez took him to the hospital. The police questioned
Menendez and he lied and told them that they had been jumped and he had been shot in the leg because
he told his assailants that he didn't have any money.

Several weeks later, Gomez and Mota pulled up to where Menendez was hanging out with some friends
and they were calling me, right, and I went to the car and they say get in the car. I was like where are
you guys going? They said don't trip. As on the other occasion, Mota was driving and Gomez was in
the front passenger seat. Menendez asked if his friend could go too, and Mota told him he couldn't.
Menendez got in the car and they decided to go to a McDonald's on San Pablo near Broadway. Instead of
turning right into the McDonald's, however, Mota turned left onto Broadway. Menendez asked Mota
were he was going and he said don't trip. Mota kept driving. At this point, they were driving into
Norteo territory and Menendez thought they were looking for some Norteos or they were trying to do
something again.

Gomez spotted three men wearing red at a stop sign. Mota stopped the car and asked the men if they
were busters. The men said they weren't, and Menendez recognized one of them and told Mota that
they don't bang Mota drove away but he kept on mugging9 them.

Mota then spotted Rico McIntosh, who looked, to Menendez, like he was wearing a red bandana and had
some red on his pants, too. Mota and Gomez thought he looked like a Norteo. They pulled
alongside McIntosh and Gomez asked him if he is a buster. McIntosh said what the fuck is a buster?
Menendez thought he heard Mota say pull it out. He then saw Gomez reach down toward his leg.
McIntosh made a gesture as though to reach for something and Menendez thought it was a gun. Gomez
began to fire the gun out of the window of the car. Menendez heard four or five shots. McIntosh fell
and Mota and Gomez began to laugh. Menendez told them it wasn't funny and they told him he was a
pussy. Menendez said he wanted to go home. I told them what they just did, it was wrong because I
never seen somebody kill another person like that.

Mota and Gomez seemed pretty happy, like they just won the lottery or something. They were really
excited about it. Mota and Gomez wanted to celebrate, but Menendez asked to go home. On the way,
Mota and Gomez talked and said, Oh, you know, what the homies are going to say when they find out, or
was he good, was he bad, you know they were saying that it was like, you know, it was like perfect.
Perfect is no one sees them. [] No one seen us when we were there. When that happened there was no
people at all, just that guy.

When they arrived at Menendez's house, Mota left the gun with Menendez. He told Menendez that he
was on parole and couldn't have it.

A week or so later, Menendez went to a party with members of Varrio Frontero Loco and Mexican Loco.
At the party, Gomez started talking about it. Ruelas was also present, along with a number of other
Varrio Frontero Loco and Mexican Loco. Mota was also there.

Gomez confessed to the McIntosh murder. He told the police that Mota picked him up the night of the
murder and the two of them went to look for Norteos. Mota gave him the gun he used to shoot Rico
McIntosh. Mota's job was to drive until he saw a Norteo and then stop. Gomez didn't plan to shoot
anyone who wasn't a Norteo. After driving around for a while Mota and Gomez picked up Menendez.
Menendez sat in the back seat. They continued to look for Norteos, slowing down to look and then
ruling out a number of groups of people who were out that night. Eventually, either Mota or Menendez
spotted McIntosh, who was walking down the street. Mota told him that McIntosh had some red on.
Gomez asked him, are you a Buster? And he said, what the fuck is a buster? He, he had a hoodie.
Then he like, he pulled the hoodie down as if he wanted to do something, so I just shot him. He shot
McIntosh until there were no bullets left in his gun.

After the shooting they went to a store and bought some beer and drank it at the cemetery. He gave the
gun to Menendez. Menendez saw the whole thing from the backseat.

McIntosh was hit in the hip and buttocks. He was taken to John Muir Hospital and released on April 28,
2008. The next day, McIntosh collapsed and died after blood clots caused by the gunshot wounds
traveled to his lungs.

Gomez was convicted of second degree murder. Mota was convicted of first degree murder as an aider
and abettor and Elizalde was convicted as a co-conspirator.

B.Conspiracy and Gang Evidence

Several witnesses testified to a conspiracy on the part of Mota and Elizalde to commit murders of rival
Norteo gang members in order to restore the reputation and fortunes of the Varrio Frontero Loco.

1.Jorge Sanchez

Jorge Sanchez was a member of Varrio Frontero Loco.10 He joined because his older brother was in the
gang. Sanchez's brother was a member of the Mexican Loco, another Sureo gang, and he joined the
Varrio Frontero Loco because he wanted his own name. He was jumped in to Varrio Frontero Loco,
through a process he described as [j]ust imagine three guys beating on one person, kicking him, beating
him, just thumping on him for 13 seconds. He had also helped jump people into the gang. Sanchez
showed the jury a number of tattoos that signified his membership in Varrio Frontero Loco. Gang tattoos
were important so people won't mess with us.
A Sureo who wanted to prove himself would [j]ust go to the streets. Beat up any Norteo you can
think of to start with [] Just you earn respect and your stripes. Start shooting or just doing whatever
you want. You would do this with other people [t]o make sure you do it. Just to make sure you ain't
lying about what you did. When Sanchez went out to attack Norteos, he would take fellow Varrio
Frontero Loco with him. He would do that for backup. He would also do it to make sure they do it,
too. Make sure they look at you.

Sanchez understood that at the time of trial, Mota and Elizalde had green lighted him; that is, they had
ordered him killed for talking to the police. Green lighting did not occur until the actual text of a
statement made to the police was distributed to the streets, generally through a defendant who received
the statement from his lawyer.

Sureos were enemies with Norteos because they were mixed people: part Mexican they mix with
Mexican black, Mexican white. You could tell who they were by [t]he hair, the clothes, the grill that is
like the gold teeth they wear. [] And if they got tattoos you look at tattoos, belts. In particular,
Norteos had long hair, all of the new clothes the black people be coming out with, and wore the color
red, including red belts. Sureos identified themselves with blue bandanas and blue belts.

Sanchez was familiar with a number of Norteo sub-gangs including West Side Berkeley, Montalvin,
Varrio San Pablo. Each of them claimed a particular area. Varrio San Pablo claimed the area near
Broadway and the Hilltop Mall.

As a Sureo, when he saw a Norteo he was supposed to [t]ake off, just don't even think about it, just hit
them up Just whoop his ass.

Varrio Frontero Loco used violence to scare [j]ust the people, Norteos whoevereverybody, the blacks,
the whites, the Asians. They did so [j]ust so they won't mess with us [P]eople be picking on people.
Sometimes people just look for a way out. And just make sure they scared of you instead of you being
scared of them.

Fame mattered because it was a way of representing my hood, [j]ust to let people know where you are
from. You did that by doing a lot of things, shooting, selling drugs, getting money, cars, just whoop
whooping people in front of other people. A Varrio Frontero Loco would throw it up by telling
someone who they were, just make sure they know it. Being feared by rival gang members was a good
thing[y]ou can be walking the streets with no one, no one is trying to hit you up or something.

Gang members would get together and brag about what they had done in order to let people know that if
they mess with you they will get the same treatment. He would also get together with other Varrio
Frontero Loco and plan future crimes to get respect or to make people afraid.

With regard to non-gang members, it was important to let them know that we don't mess with you and
you just don't mess with us.

Drug sales were a part of being a Varrio Frontero Loco. Sanchez wasn't into that, but he had seen fellow
gang member Gamaliel Elizalde selling drugs out of his backyard. He would sometimes give drugs to
Mota to sell and Mota would brag about it. The drug sales were run out of Elizalde's house.

Varrio Frontero Loco held meetings to check in with each other, to make sure what was going on with
each other and just what kind of problems, like people got problems with someone, different rivals or with
a Norteo or something. Sometimes the members would put money together for people in jail to use for
hygienes like toothpaste, soap, shampoo Elizalde was in charge of putting money on the books for
the Varrio Frontero Loco members who were in jail. The meetings were not held often. Sometimes the
meetings would take place at Victor Valencia's house and sometimes at Elizalde's house.

Occasionally, he and other members would check, or beat up, a member who was not putting in work
or he ain't kicking it with us a lot
At the time Sanchez joined Varrio Frontero Loco in 2005 or 2006, it was led by a number of men,
including Gamaliel Elizalde. Elizalde was an OG11 or leader, the one you look up to The one[] that
you go ask for advice. One of the benefits of being a leader was that he get to kickback or just don't do
a lot of things no more. A leader would not fight somebody or put a lot of work in the streets, shooting,
whatever, just get to just relax and let the other generation do their work.

A leader would have money from things going on on the side [] like they were selling drugs The
leaders would use the pee wees or younger members to distribute it

In 2007, there were several subsets of Sureos with whom Sanchez was familiar: his own gang, Varrio
Frontero Loco, another gang called Mexican Loco and a third called Richmond Sur Trece. Although they
were all Sureos, they did not always get along. In 2007, a Varrio Frontero Loco leader called Toby
shot a member of a Richmond Sur Trece and fled, along with his brothers, to avoid being killed in
retaliation for murdering a fellow Sureo. This left a void in the leadership of Varrio Frontero Loco,
which was filled by Elizalde. As Sanchez put it, after Toby fled, everybody was just going to Gama, so
that's the only one who we look up to and who was there with us. Nevertheless, after Elizalde took over,
Varrio Frontero Loco began to dissolve. [E]verybody just try to take it their own way. It wasjust
disappeared. Some of them went to some other towns. People got scared because they got shot at, who
was getting stomped on. At this point, Varrio Frontero Loco were getting hurt and things were bad.

Sanchez testified that we just had to get it back together. He and others referred to this as bring[ing]
the hood back. To do this, it was necessary to recruit[] new people and try to do more damage to the
Norteos, to the streets. All of the Varrio Frontero Loco wanted to bring the hood back, including
Elizalde. In terms of the hierarchy of Varrio Frontero Loco, Elizalde was the leader, and Sanchez was
directly under him along with Mota, Ruelas, and several others.

Elizalde told the Varrio Frontero Loco that they had to put in more work, go to the streets, ride around
the streets, [m]ake sure they [the Norteos and everybody] know we around, we ain't gone. They
would do this by hit [ting] the streets, ride around, especially in Norteo territory. Sanchez explained
that this was effective because the Norteos don't expect us to go. They think we going to be scared.
They think we going to just lay back. And we go there and they go, oh, man, they coming back and they
coming back hard. In Norteo territory, [i]f you see them just shoot them or whoop them, whatever you
got. If you don't got no gun you just get out and do what you got.

Sanchez discussed this plan with all the Varrio Frontero Loco, including Mota. He didn't talk to Elizalde
about why he wanted to bring the hood back; he only knew that Elizalde wanted it done.

According to Sanchez, he and Mota, along with Luis Ruelas, Luii Hernandez, and Cole Azamar were the
ones who was going to bring them back just the ones who got to take care of everything. They covered
different parts of Richmond. In addition to attacking Norteos, they also recruited and guided pee
wees. Elizalde wanted them to get into the high schools and expand the Sureos and hurt the
Norteos.

Shortly before Sanchez was arrested, Mota came to his house. He was nervous because the police had
been to his house. Mota told him that he [Mota] went in the shootout. He also spoke to Jorge
Camacho who told him that he shot a lady.

2.Oscar Menendez

Oscar Menendez testified that at the time of the Rico McIntosh murder, he was undecided about being a
Varrio Frontero Loco. He didn't want it for my future it was just fine being with them, you know, being
with girls and having parties, but I didn't like the rest that they used to do. He had a lot of Sureo
mentions on his MySpace page, and he liked being around the gang because it was fun because they
always used to hang around with a lot of girls and they always used to have parties every weekend and,
you know, beers and music.
He was aware that gang members hunted and attacked Norteos. However, no one ever told me to do
it. He was never jumped in. He associated with the Varrio Frontero Loco for six or seven months
beginning in November 2007 until his arrest about a week after the McIntosh murder.

It was typical for gang members to brag about their crimes. He explained, they say that's what they get
respect because when theywhen the rest of the guys knew what you were doing they will respect you
more than what they do. This was a big deal to the Varrio Frontero Loco.

The Norteos were the Varrio Frontero Loco's rivals. Menendez knew what areas were Norteo
territory. He also knew that if a Varrio Frontero Loco found a Norteo or saw one he was to beat him
up and if you have a gun you have to use it. That is because the Varrio Frontero Loco wanted to get rid
of Norteos.

He knew both Javier Gomez and Victor Cervantes, both of whom were members of the Sureo gang,
Mexican Loco. When he associated with these gangs he knew they got along but not that much at first.

According to Menendez, Varrio Frontero Loco wasn't that much organized. He never knew who was
the shot-caller He was aware that the members used to receive orders from some older guys When
he asked what they were doing, the members would say don't trip that's something that I got to do and
that's it. In his own mind, he thought that Elizalde was the shot-caller because he once heard him
giving orders to someone. At one point, Elizalde told Menendez that in order to be a Sureo you have to
get down, you now, don't have to be a fear of anybody, if you see a Norteo on the street you have to put
him on check, beat him up or anything that is in your hands to get him away from Richmond, and to don't
let them come to Richmond, let them stay in San Pablo. Specifically Elizalde told him that if he saw a
Norteo he was to beat him up and if he had a gun to use it. Elizalde once told him that in order to be a
Sureo he had to stick with them all the time and commit sort of a crime that he used to commitI had
to do the crime that they used to do in the week and stick around with them and, you know, do whatever
theythey were doing during the week. This would include [s]tealing cars and robbing people,
shooting Norteos, beat them up. Mota told him the same thing. He also told him that he had to
earn a Varrio Frontero Loco tattoo by doing something big like kill a Norteo.

On three occasions, he heard Elizalde instruct someone to beat up a Norteo or to look for him. He also
heard Elizalde say that Richmond was Sureo territory.

Menendez named a number of Varrio Frontero Loco as those with the most respect in the gang. They
were Molina, Azamar, Camacho, Ruelas and Sanchez. He also knew Larry Valencia, who he didn't think
was a gang member.

He felt that he had to do what Elizalde told him to do. He did not, however, think that he had to hunt
Norteos in San Pablo. When he went with Mota and Javier Gomez on April 13, 2008, which was the
day he shot himself by accident, he did not know that they were looking for Norteos to kill. Nor did he
think that was the case on April 26, 2008. He did not realize that they were looking for Norteos to kill
until the car did not turn toward the McDonald's on Broadway as he had expected.

In jail, Menendez received a message on the module where he was housed from the Sureo shot caller.
The message laid out in detail how he was to behave while incarcerated. Among other things, he was to
contribute money to buy food and supplies for other Sureos, he was not to speak to the police, he was to
follow orders from the shot caller and if he was asked, he was to beat people up the shot caller told him to
attack. He was also required to give the shot caller a copy of the police report on his arrest as well as any
other legal materials in order to permit the shot caller to determine whether he was a snitch. Menendez
refused to give these materials to the shot caller and, several days later, he was beat up by several Sureos.
He entered protective custody afterwards.

3.Luis Ruelas
Luis Ruelas testified that he was a member of Varrio Frontero Loco for six years until 2008. He was 14
or 15 when he was jumped into the gang. Jose Valencia brought him into the gang.

Ruelas's testimony before the grand jury was admitted into evidence. In that testimony, Ruelas told the
grand jury that he had earned a tattoo that said Chap Killa on his arm. He worked his way up from
the bottom of the gang by earning respect through shooting and beating up Norteos. Norteos were
identified by the color red, while Sureos wore the color blue. Ruelas became close to one of the top
people in Varrio Frontero Loco at the time, Victor Valencia. Valencia had secured their territory by
running out another gang that had previously been there.

Ruelas was deported to Mexico and Victor Valencia fled the country. When Ruelas returned, Elizalde
was the mainwas the kingpin at that time, but everything else was a mess on the streets. Elizalde was
moving all the drugs. With Victor Valencia gone, [h]e took over all our stuff. Ruelas did not like
Elizalde. Elizalde gave orders to kill people, including one occasion when Elizalde told Ruelas to kill
somebody because they popped his tires. He didn't do it because at the time he was working as an
informant with the San Pablo police. As part of his deal with the police, he promised not to participate in
the commission of any crimes. Elizalde also would send Ruelas out to collect debts using violence.

On one occasion, before he returned to Richmond, Ruelas spoke to Hector Molina, who told him We miss
you We bringing the hood back. According to Ruelas, the whole part of being a Sureo was to
assault or kill Norteos.

Ruelas's testimony at an earlier gang prosecution was also admitted into evidence. At that time, Ruelas
testified that violence was an important part of bringing the hood back [b]ecause if you don't have
people be scared of you, they ain't going to respect you. They going to be like, you know, whatever. As
long as you show them you really about it, they will think about it twice before they come at you.
Violence also helped recruit new members who seen what we were doing and they knew we had money.
We had girls, we had everything. And they wanted it, too, so they started joining in.

At trial, Ruelas was reluctant to testify because of threats to his family. In general, he either outright
denied or claimed to forget testimony he had earlier given about Varrio Frontero Loco. At trial, he
testified that Varrio Frontero Loco did not have a structure in which there was a shot caller. Instead,
there were people he looked up to, including Victor Valencia. Ruelas also had respect for Elizalde
because he was his elder.

Ruelas showed the jury tattoos on his forearms that said Chap Killa. A Chap, he explained, is a
Norteo gang member. He had done a lot of crimes to earn the tattoo.

One of the rules of being a Sureo is just you got to represent yourself the right way. To do that, you
had to have respect, which you earned through loyalty. If a Varrio Frontero Loco saw a Norteo he was
expected to get into a fight with the Norteo. He would sometimes go out and look for Norteos to find.
The Broadway area in San Pablo was one place the Norteos hung out.

He knew Elizalde because they used to kick it outside his house. Elizalde was a Varrio Frontero Loco.
He was older and some guys came up to him for advice. Although he had earlier told the police that
Elizalde was running the streets, he had done so because I was just trying to save my life from being
prosecuted, but it waswhat I said was wrong In general, he retracted a number of statements he made
earlier in which he had identified Elizalde as the person who had taken over drug sales, the person to
whom he would go if he needed a gun quickly, and as having a list of people that needed to be hit. He
also did not remember telling the police that Mota brought a pound of methamphetamine to his house
along with a gun and said he was going on a drug deal.

D.The Verdicts
The Gomez jury deliberated for three days and came back with a second degree murder verdict with
regard to Rico McIntosh. It found the firearm and gang enhancements true. The trial court sentenced
Gomez to an aggregate term of 40 years to life in prison.

After four days of deliberation, the Mota/Elizalde jury brought back guilty verdicts on three murder
counts and an acquittal with regard to the death of Lisa Thayer. It also found Mota and Elizalde guilty of
conspiracy to commit murder, participating in a criminal street gang and found true enhancements for
participating in a criminal street gang. As to Mota, the jury found true an enhancement for intentionally
discharging a firearm causing great bodily injury or death. Elizalde was also found guilty of dissuading a
witness by force or threat of force. The court sentenced Mota to an aggregate term of 100 years to life.
It sentenced Elizalde to an aggregate term of 103 years to life.

This timely appeal followed.

III.DISCUSSION

A.Unforeseeable Supervening Cause Instruction

Rico McIntosh's death was caused by a pulmonary embolism 72 hours after he was shot and a day after he
was released from the hospital. Gomez argues that the trial court erred because it failed to instruct the
jury, sua sponte, that they were required to determine whether actions other than Gomez'sin particular,
the decision of his doctors to release him from the hospitalconstituted an unforeseeable supervening
case. He also contends that the instructions the court gave were inadequate. We disagree.

a.Factual Background

McIntosh died at around noon on April 29, 2008, after having been released from John Muir Hospital the
morning before. Dr. Ikechi Ogan performed McIntosh's autopsy. Ogan examined two bullet wounds;
one was located on McIntosh's right thigh and the other on his left hip. Neither was fired from close
range. McIntosh had large hematomas on his thigh and hip where he had been shot. A large blood clot
was blocking both of McIntosh's lungs. Ogan determined that this blood clot, which totally blocked the
flow of blood, made it impossible for McIntosh to breathe and was the cause of his death. The clot was
caused by complications of the gunshot wound to [McIntosh's] pelvic region and was the cause of his
death.

Ogan testified that in general a doctor would know that blood clots are very likely when you have injury
to the lower body and pelvis. The trial court sustained an objection to defendant's question about
whether the doctors at John Muir should have kept an eye on McIntosh. Ogan testified that
McIntosh's follow-up care at John Muir was not relevant to his determination of the cause of death: I
have no desire to comment on why he was released. [] My job was to figure out a cause of death of this
gentleman. And I did that with the information I had. [] I had enough information from the
investigating officers and the sheriff's department to do what I had to do and I did that. [] That he was
released was not in my control. I had a dead body in front of me. I had to decide what killed this dead
body and I did that.

When asked if the gunshot wounds would have been fatal but for the clotting, Ogan replied as follows:
[T]he best thing that I can say is that I have seen people who have gunshot wounds to an extremity, say a
thigh or leg, who died. I have seen people who had a gunshot[] wound to the thigh or leg who didn't die.
Same with the pelvis, it all depends on the individual.

b.Discussion

Gomez does not appear to challenge the instructions the court gave the jury on causation. Rather, he
argues that the trial court should have instructed the jury sua sponte that if it found that the decision to
release McIntosh was the sole cause of his death (apparently if it was grossly negligent), then it could not
find that Gomez was the cause of McIntosh's death.
He is incorrect. The trial court's duty to instruct the jury sua sponte extends only to the general
principles of law that are necessary for the jury's understanding of the case. (People v. Mayfield(1997) 14
Cal.4th 668, 773.) The court did so by giving the jury the full panoply of instructions on causation. 12
Having adequately instructed the jury, the trial court did not have a duty give clarifying or amplifying
instructions unless counsel requested them. (Id. at p. 778.) Nor does defendant argue that the
instructions the trial court gave were either incorrect or misleading.

Gomez instead argues that the court should have instructed the jury on the application of these principles
of causation to the decision by the hospital to release McIntosh and instructed the jury that if it found that
the decision to release McIntosh was grossly improper, they could conclude that this maltreatment was
the sole source of death.

We disagree. The court's sua sponte duty to instruct on general principles of law does not extend to
pinpoint instructions. (People v. Saille (1991) 54 Cal.3d 1103, 1119.) Pinpoint instructions relate
particular facts to a legal issue in the case or pinpoint the crux of a defendant's case, such as mistaken
identification or alibi. [Citation.] They are required to be given upon request when there is evidence
supportive of the theory, but they are not required to be given sua sponte. (Ibid.) Gomez did not request
such an instruction and the court had no sua sponte duty to give one.

Therefore, we conclude that the jury was properly and adequately instructed on the principles of
causation. Nor does defense counsel's decision not to request such an instruction amount to ineffective
assistance of counsel. Given the lack of evidence to support the defense theory that inadequate medical
care was the sole cause of McIntosh's death, any request for a pinpoint instruction on this issue would
have been unavailing. Moreover, even if the court had given this pinpoint instruction, the result would
not have been more favorable to Gomez. Ogan determined that the cause of McIntosh's death was a
blood clot that blocked the flow of blood and made it impossible for McIntosh to breathe. The doctor's
testimony that the blood clot was caused by complications of the gunshot wound to [McIntosh's] pelvic
region established that Gomez's conduct was a substantial factor in causing McIntosh's death. In
contrast, there was no evidence to support the defense theory that the decision to release McIntosh was so
grossly negligent as to be the sole cause of his death.13

B.Jury Question R egarding Second Degree Murder

Gomez argues that the trial court erred in its response to a question posed by the jury during its
deliberations. We disagree.

During its deliberations, the jury sent out the following note seeking clarification: [R]egarding CALJIC
8.20 [first degree murder] if the act of shooting resulted in a murder and the premeditation was the act
of shooting, does this imply a premeditation of murder when murder was the result not the intent?

The court provided the jury with a typewritten response that first addressed the premeditation or intent
to kill element of first degree murder: Under the premeditation and deliberation theory of first degree
murder described in CALJIC 8.20 the defendant must have express malice that is, a manifest intent to
kill, as well as premeditation and deliberation before acting.

The court then went on to describe the interplay between the lack of intent to kill and second degree
murder: If you find that the defendant intended to shoot, but did not have the intent to kill, then the
resulting death would be a second degree murder on this theory if you find that the death was a natural
and probable consequence of the shooting. Please consider this response only in connection with all of
the jury instructions as a whole.

Gomez contends that the trial court's statement regarding second degree murder was erroneous because
the court did not include the entire definition of second degree murder in its response to the jury.
Specifically, he argues that, because the court's response to the jury's question did not mention the third
element of implied malice murder, namely that the act was deliberately performed with knowledge of the
danger to, and with conscious disregard for, human life (CALJIC No. 8.31), the response invited the jury
to avoid the question of conscious disregard altogether and find appellant guilty of second degree murder
regardless of whether or not he appreciated and disregarded the risk to human life inherent in his
actions.

He is incorrect. Penal Code section 113814 imposes on the trial court a mandatory duty to clear up any
instructional confusion expressed by the jury. [Citations.] (People v. Gonzalez (1990) 51 Cal.3d 1179,
1212, superseded by statute on other grounds.) This does not mean the court must always elaborate on
the standard instructions. Where the original instructions are themselves full and complete, the court
has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the
jury's request for information. [Citation.] (People v. Beardslee (1991) 53 Cal.3d 68, 97.)

The trial court responded to a question about only one of the elements of first degree murdernamely,
premeditation. This response was appropriately tailored to the jury's question. Moreover, the court
explicitly stated that its response was not intended to encompass all issues related to the crimes of first
and second degree murder when it instructed the jury to consider this response only in connection with
all of the jury instructions as a whole.

Gomez does notindeed, cannotargue that the court's instructions with regard to first and second
degree murder, either initially or after the jury's inquiry, were incorrect. His argument instead is that the
court was required to reinstruct the jury on the elements of second degree murder. In other words,
defendant's argument is that the court was precluded from answering the jury's question about an
element of these crimes without also reinstructing the jury as to all of the elements of these crimes.

In fact, the court did make clear to the jury that its response was intended to supplement rather than
supplant its earlier instructions. By charging the jury with the responsibility of considering the
instruction as a whole, the court ensured that the jury would not misconstrue its response as revising
rather than clarifying the earlier instructions. The jury sought an answer to a limited question. It was
given one. Therefore, it is unlikely it would have considered the court's response as redefining the
elements of second degree murder.

We reject defendant's argument.

C.Threats to Witnesses

Gomez next argues that the trial court erred in permitting Oscar Menendez, Jorge Sanchez, and Luis
Ruelas to testify about threats they received before they testified. However, Gomez also concedes that,
under Evidence Code section 780 and People v. Mendoza (2011) 52 Cal.4th 1056, 10841086, such
evidence is admissible to assist in the assessment of a witness's credibility and instead argues that, under
federal law, the evidence was inadmissible. (Dudley v. Duckworth (7th Cir.1988) 854 F.2d 967, 971
972.) As defendant acknowledges, we are bound to follow our Supreme Court's ruling on this issue and,
therefore, reject this argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

D.Instructions Regarding Testimony of Menendez, Cervantes, Valencia and Ruelas

1.Menendez

Defendants argue that the trial court erred when it rejected defendant Gomez's request that the court
instruct the jury that Menendez was an accomplice as a matter of law and, instead, allowed the jury to
determine whether certain witnesses were accomplices.15 Accordingly, defendants take issue with a
number of instructions given by the trial court regarding the jury's consideration of whether certain
witnesses were accomplices. These instructions include the direction that [t]he defendant has the
burden of proving by a preponderance of the evidence that each of the following witnesses was an
accomplice in the crimes charged against the defendants: [] Victor Cervantes [] Oscar Menendez []
Luis Ruelas [] Larry Valencia. The court also instructed the jury pursuant to CALJIC No. 3.14 that
[m]erely assenting to or aiding or assisting in the commission of a crime without knowledge of the
unlawful purpose of the perpetrator and without the intent or purpose of committing, encouraging or
facilitating the commission of the crime is not criminal. Thus a person who assents to, or aids, or assists
in, the commission of a crime without that knowledge and without that intent or purpose is not an
accomplice in the commission of the crime.

Generally, the issue of whether a witness is an accomplice is a factual question. Only when there is no
dispute as to either the facts or the inferences reasonably to be drawn from the facts would the court find a
witness an accomplice as a matter of law. (People v. Fauber (1992) 2 Cal.4th 792, 834; People v.
Rodriguez (1986) 42 Cal.3d 730, 759 (Rodriguez.)

Section 1111 defines an accomplice as a person who is liable to prosecution for the identical offense for
which the defendant is being tried. In Menendez's case, his responsibility for McIntosh's death would
have been as an aider and abettor since Gomez rather than Menendez was the shooter. (People v. McLain
(1988) 46 Cal.3d 97, 106 [1111 covers all principals to a crime, including aiders and abettors].)
Menendez's presence at the scene, his failure to prevent McIntosh's murder and even his assistance to
Gomez and Mota with knowledge of their criminal purpose (of which there was no evidence) would not be
enough to support a finding that Menendez was an accomplice as a matter of law. (Rodriguez, supra, 42
Cal.3d at p. 760.) Menendez would only be an accomplice as a matter of law if the evidence was
undisputed that Menendez shared Gomez and Mota's criminal purpose. (People v. Sully (1991) 53 Cal.3d
1195, 1227.)

In fact, there was considerable evidence in the record that Menendez did not even realize that Gomez and
Mota intended to look for and kill Norteos, much less share their criminal purpose. 16 Menendez
testified that at the time McIntosh was murdered he had not committed to being a Varrio Frontero Loco,
not wanting that for my future. He wanted only to be with girls and go to parties with the gang
members, but didn't like the rest that they used to do. Although he knew that gang members attacked
Norteos, he himself was never asked to join in. Menendez knew that the Norteos were the Varrio
Frontero Loco's rivals. Menendez knew what areas were Norteo territory. He also knew that if a
Varrio Frontero Loco found a Norteo or saw one he was to [b]eat him up and if you have a gun you have
to use it. He did not, however, think that he was expected to hunt Norteos. When he went with Mota
and Gomez on April 13, 2008, which was the day he shot himself by accident, he did not know that they
were looking for Norteos to kill. Nor did he think that was the case on April 26, 2008. He did not
realize that they were looking for Norteos to kill until the car did not turn toward the McDonald's on
Broadway as he had expected.

Menendez's testimony that he neither wished nor was expected to join in the violence against Norteos,
along with his testimony that he was unaware that Gomez and Mota intended to shoot anyone the night
McIntosh was murdered or on the earlier occasion when he (Menendez) was accidentally shot, created a
factual dispute as to whether he was an accomplice. The court, therefore, properly put this matter before
the jury.

Gomez argues for the first time on appeal that the People were judicially estopped from opposing his
argument that the court should instruct the jury that Menendez was an accomplice as a matter of law
because they had earlier obtained an indictment that stated that Menendez went hunting for Norteos
with [Gomez] and Mr. Mota and that Mr. McIntosh was killed with Mr. Menendez's gun

The application of judicial estoppel is discretionary. (Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1468).
Because Gomez did not request at trial that the court exercise its discretion in this regard, he has
forfeited this argument on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353; People v. Williams (1998)
61 Cal.App.4th 649, 655.)

In any event, the trial court would surely not have granted such a request. The court has the discretion
to impose this remedy when a party's inconsistent behavior will otherwise result in a miscarriage of
justice. (Levin v. Ligon, supra, 140 Cal.App.4th at p. 1468.) The People did not engage in
inconsistent behavior. The indictment did not allege that Menendez was an accomplice as a matter of
law. At best, it contains language that could support such an argument. The record contained ample
evidence to the contrary and the trial court properly made its decision based on this evidence.
2.Cervantes

There was little evidence that Cervantes conspired with Varrio Frontero Loco to kill Norteos or that he
was otherwise involved in any of the crimes committed by defendants. Cervantes testified that he gave
Molina a ride home after he got out of jail and spoke to him about the killing of an unnamed Norteo.
Although there was evidence that Cervantes was a member of Mexican Locos, there was no evidence that
he shared Mota or Elizalde's intention to kill Norteos in order to increase the stature of Varrio Frontero
Loco in the community. Therefore, the trial court properly left to the jury the question of whether
Cervantes was an accomplice.

3.Valencia

There was also a factual dispute about whether Valencia was an accomplice to the Perez murder.
Menendez testified that he did not think Valencia was even a gang member. Valencia testified that he
was not a gang member and only went in the car with Azamar after they encouraged him to do so.
Valencia was aware that they had driven into Norteo territory, but he had never seen anyone killed
before. In fact, he asked to be driven home after the murder rather than join in the bragging and
celebration that followed.

The fact that Valencia was present at the scene and did not prevent the Perez murder is insufficient to
make him an accomplice. Moreover, even if there was evidence (and there was not) that he assisted
Mota and Molina in the murder, this would not be sufficient for a finding that he was an accomplice.
(Rodriguez, supra, 42 Cal.3d at p. 760.) Our review of the record reveals that the trial court did not have
before it undisputed evidence that Valencia shared Gomez and Mota's criminal purpose. (People v. Sully,
supra, 53 Cal.3d at p. 1227.) Therefore, it was not required to instruct the jury that Valencia was an
accomplice as a matter of law.

4.Ruelas

Ruelas, like Elizalde, was not present at any of the murders. In addition, there is no evidence in the
record directly linking him to any of the crimes committed by defendants. His complicity in these crimes
would, therefore, be as a co-conspirator.

There was conflicting evidence about whether Ruelas had assumed a co-conspirator role in bringing the
hood back. Ruelas appeared to be an important member of Varrio Frontero Loco. Sanchez testified
that, in terms of the hierarchy of Varrio Frontero Loco, Elizalde was the leader, and Sanchez was directly
under him along with Mota, Ruelas, and several others. According to Sanchez, Ruelas was one of the
Varrio Frontero Loco who were going to bring them back just the ones who got to take care of
everything. Menendez also named a number of Varrio Frontero Loco as those with the most respect in
the gang. Ruelas was among them. Elizalde also would send Ruelas out to collect debts using violence.
Ruelas testified that violence was an important part of bringing the hood back.

Ruelas himself testified that he was a member of Varrio Frontero Loco for six years until 2008. There
was evidence, however, that Ruelas's involvement in Varrio Frontero Loco was most significant and
committed before Elizalde assumed control. Ruelas did not like Elizalde. Although Elizalde had given
him an order to kill someone, Ruelas did not do so because he was working as an informant and had
agreed not to participate in the commission of any crimes.

Given the factual dispute about Ruelas's accomplice status, the trial court did not err in putting the
question to the jury.

5.Prejudice

Even if the trial court did err in putting the accomplice question to the jury, [a] trial court's failure to
instruct on accomplice liability under section 1111 is harmless if there is sufficient corroborating evidence
in the record. [Citation.] Corroborating evidence may be slight, may be entirely circumstantial, and
need not be sufficient to establish every element of the charged offense. [Citations.] [Citation.] The
evidence is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury
that the accomplice is telling the truth. [Citation.] (People v. Lewis (2001) 26 Cal.4th 334, 370.)

We reject defendants' argument that the witnesses' testimony was insufficiently corroborated. First,
with regard to Oscar Menendez, Menendez testified that after he witnessed the McIntosh shooting, he did
not want to join in Mota and Gomez's celebration of the murder and asked them to take him home. He
testified that when they arrived at his house, Mota told Menendez that he was on parole and couldn't have
the gun. Mota told Menendez to take the gun. This testimony was corroborated by San Pablo Police
Detective David Hoff, who testified that he did in fact find the gun used in the McIntosh shooting in
Menendez's bedroom. Menendez's description of the way in which McIntosh was approached was also
corroborated. Menendez testified that when Mota spotted Rico McIntosh, Gomez asked him if he is a
buster. McIntosh's friend Lorry Scherrer testified that McIntosh told her after the shooting that he had
been approached by three people who asked him if he was a buster before they shot him. San Pablo
Police Officer Matthew Spanner also testified that McIntosh told him that he was asked if he was a
buster before he was shot. The testimony of Hoff, Scherrer and Spanner provide sufficient
corroboration of Menendez's testimony.

Second, Victor Cervantes testified that when he picked Molina up from jail, Molina told him that he had
been released because he had been caught with a gun that was not the murder weapon. Molina also told
him, in effect, that he and Romero had murdered Centron. Molina's telephone calls to his mother in
which he made the same admission adequately corroborate Cervantes's testimony.

Third, Luis Ruelas's testimony that Molina told him that he had killed Centron was corroborated by the
same telephone calls to his mother that corroborated Cervantes's testimony.

Finally, Valencia testified that when Camacho got out of the car he said to Luis Perez Show me your
hands, show me your hands. When Perez yelled [w]hat the fuck is going on? Camacho immediately
shot him. This was corroborated by a neighbor who heard the confrontation, Ganehin Saele. Saele
testified that she heard someone say what the fuck? and then heard gunshots.

E.BatsonWheeler

Mota contends that, in exercising a peremptory challenge against Juror Number 5, the only African
American juror on the panel, the prosecutor violated his right to a trial by a jury drawn from a
representative cross-section of the community, a right guaranteed under both the California Constitution
(article I, section 16) and the Fourteenth Amendment of the United States Constitution. He is incorrect.

1.Factual Background

After the prosecutor exercised a peremptory challenge to Juror No. 5, defense counsel moved for a
mistrial under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d
258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162 (Johnson).

Defense counsel told the court that Juror No. 5 would be the only AfricanAmerican seated on the jury.
According to counsel, this juror had 27 years of military experience. He did not indicate any biases, and
I believe that he is being relieved because of his race. The court asked the prosecutor to respond to the
issue of a prima facie showing.

The prosecutor offered the following response: I do not believe there is any prima facie showing, and this
is why: I worked extremely hard to rehabilitate a juror named [Mr. P.]. [] Mr. [P.] was actually seated
next to [Juror No. 5] last week when he came into the box immediately in front of [Juror No. 5].[] Mr.
[P.] was an AfricanAmerican male about the same age as [Juror No. 5], and I liked a lot of things about
Mr. [P.], including his job along with his wife's experience as an emergency room nurse. []
Unfortunately, as you may recall, I worked hard to rehabilitate him, and he said that I had gotten him
from the defense starting on the 30 yard line up to the 45.[] He was close to not being for cause, but I
didn't do my job well enough, I suppose, and he ended up being a for cause challenge made by Mr. Morton
and Ms. Bethards. [] That was an AfricanAmerican juror that we lost, who[m] I was perfectly satisfied
with. [] On the other hand, I don't believe I need to give my reasons at this point, because you haven't
made a prima facie case, but I do think the fact that I worked hard to rehabilitate one AfricanAmerican
juror, was not able to do so, cuts directly against any argument that there is a prima facie case of
discrimination based on race in the People's peremptory challenge, or voir dire strategy.

Defendants argued that the People's effort to rehabilitate an AfricanAmerican juror was insignificant in
light of the fact that Juror No. 5 was a candidate who was completely neutral.

The court ruled that defendants had failed to make a prima facie case. The court explained that, under
the standard articulated in Johnson, supra,545 U.S. 162,17 I do not believe the facts as [a] totality before
me would suggest that inference is appropriate. [] I do understand that a person of the African
American race is within a cognizable group, and I do know that the law permits a finding of a prima
facie case on the basis of a single strike of that group. So it's not a numerical issue, it's the conduct of the
voir dire as a whole. The court also noted that I do think that [Juror No. 5] is the first African
American who has been in the box for purposes of peremptories. [] We have had other African
American potential jurors, but they have been excused for cause or hardships. [] The record would
reflect that so far [Juror No. 5] is the only AfricanAmerican in the box as I have indicated; that the
defendants are of Hispanic descent, to the extent that may or may not be relevant, but, in any event, I
don't find a prima facie case, but you may state your reasons for the record.18

The prosecutor stated for the record that there are a lot of good things about [Juror No. 5], including
his military service. Unfortunately, the main part of his military service was serving as a substance abuse
counselor [A]lmost as a general rule, I am not going to leave counselors or psychiatrists on a criminal
jury. [] On top of that, I specifically questioned [Juror No. 5] about this, a substance abuse counselor in
his position worked with almost, I think he said, almost 90 percent of his work had been involved in
criminal activity and had been accused or convicted for drug activity. Somebody that works with felons
or convicted misdemeanants or convicted felons on a daily basis is not someone I want on a criminal jury
of any sort, no matter what color, what creed, what race they are.

The court then excused Juror No. 5. Defendants now argue that it erred in so doing. We disagree.

2.Discussion

We apply certain well-established principles in deciding this issue. [T]he use of peremptory challenges
by a prosecutor to strike prospective jurors on the basis of group membership violates the right of a
criminal defendant to trial by a jury drawn from a representative cross-section of the community under
article 1, section 16 of the California Constitution. (People v. Alvarez (1996) 14 Cal.4th 155, 192; see also
Wheeler, supra, 22 Cal.3d at p. 272.) This discriminatory use of peremptory challenges similarly violates
the defendant's federal constitutional right to equal protection. (Batson, supra, 476 U.S. at pp. 8489.)
[] We presume the People use their preemptory challenges in a constitutional manner. (Wheeler,
supra, 22 Cal.3d at p. 278; People v. Alvarez, supra, 14 Cal.4th at p. 193.) For this reason, the defendant
bears the burden of establishing a prima facie case of purposeful discrimination. (People v. Arias (1996)
13 Cal.4th 92, 134135; People v. Gutierrez (2002) 28 Cal.4th 1083, 1122; People v. Alvarez, supra, 14
Cal.4th at p. 193.) To do so, the defendant must raise this issue in timely fashion and make a prima
facie case of such discrimination to the satisfaction of the court. First, he should make as complete a
record of the circumstances as is feasible. Second, he must establish that the persons excluded are
members of a cognizable group within the meaning of the representative cross-section rule. Third, from
all the circumstances of the case he must show a strong likelihood [or reasonable inference] that such
persons are being challenged because of their group association [Citations.] (People v. Box (2000)
23 Cal.4th 1153, 11871188, disapproved on another ground in People v. Martinez (2010) 47 Cal.4th 911,
948, fn. 10.)

When we conclude that the trial court correctly ruled that a defendant failed to show a prima facie case of
purposeful discrimination, we do not review the adequacy of counsel's justifications for the peremptory
challenges.' (People v. Box, supra, 23 Cal.4th at p. 1188.) The fact that a prosecutor is permitted to
make a record of his justifications for exercising a peremptory challenge does not change this basic rule.
(Ibid.)

On appeal, we must determine whether substantial evidence supports the trial court's conclusion.
(People v. McDermott (2002) 28 Cal.4th 946, 970.) Because it does, we reject defendant's argument.

Here, the trial court found that defendant failed to make out a prima facie case of discriminatory intent.
Substantial evidence supports the court's conclusion that the totality of the relevant facts did not give rise
to an inference of discriminatory purpose. First, the fact that the People made an effortand a vigorous
one at thatto rehabilitate another AfricanAmerican juror points to the People's lack of a
discriminatory purpose in its exercise of a peremptory challenge to Juror No. 5. Simply put, if the
prosecutor had such a purpose, we would not expect the prosecutor to make a case against excusing a
different AfricanAmerican juror.

The People also point out that the prosecutor earlier passed on a jury that actually contained Juror No. 5.
The prosecutor did not actually exercise a peremptory challenge against Juror No. 5 until a juror on the
original panel had to be excused and jury selection resumed. Although more than one inference can be
drawn from the fact that the prosecutor had earlier passed on Juror No. 5 and did not excuse him until
jury selection was reopened, one reasonable inferenceand the inference the trial court madeis that the
prosecutor was not concerned with the race of jurors in his selection decisions. Substantial evidence,
therefore, supports the trial court's finding that defense failed to make out a prima facie case of
discriminatory jury selection.19

Defendants, however, argue that, when we take into account the prosecutor's for the record explanation
for his prima facie challenge, an explanation the trial court correctly observed was irrelevant to its
determination of whether defendant had made out a prima facie, we must find that the trial court erred.
We disagree.

A trial court does not scrutinize a prosecutor's explanation for his exercise of a peremptory challenge until
after it concludes that the defendant has made out a prima facie case of discrimination. The trial court's
prima facie ruling here was explicitlyand correctlynot based on the prosecutor's stated rationale,
which came after the court made its ruling. We do not consider such a statement when we ask whether
substantial evidence supports the court's ruling on the question of whether defendants had met their
prima facie burden. (People v. Box, supra, 23 Cal.4th at p. 1188, disapproved on another ground in
People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10; People v. Davenport (1995) 11 Cal.4th 1171, 1200,
abrogated on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) Thus, while we
consider the entire record of voir dire in our review (People v. Box, supra, 23 Cal.4th at p. 1188), once
we conclude[] that the trial court properly determined that no prima facie case was made, [we] need not
review the adequacy of counsel's justifications for the peremptory challenges. [Citation.] (Ibid.)

The cases on which defendants rely in making the contrary argument involve situations in which the trial
court had either explicitly or implicitly found that the defendant had made a prima facie case. These
inapposite cases, therefore, are not helpful to defendants.

In Kesser v. Cambra (9th Cir.2006) 465 F.3d 351, 360, the court implicitly found that defense counsel had
made out a prima facie case of discrimination and was, therefore, concerned with the ultimate question of
whether the lower court erred in finding that the prosecutor had not exercised his peremptory challenges
in a discriminatory way. Similarly, in Crittenden v. Ayers (2010) 624 F.3d 943, 950 (Crittenden ), the
court registered its agreement with the California Supreme Court's earlier decision in the matter that
Crittenden made a prima facie showing of discrimination and that the state carried its burden of
articulating a race-neutral justification for the peremptory strike. Crittenden, therefore, does not
support defendants' argument regarding the trial court's analysis of the record at the prima facie stage.
Finally, in Johnson v. Vasquez (9th Cir.1993) 3 F.3d 1327, 1329, footnote 2 (Vasquez), the court
announced that it need not address the question whether Johnson offered prima facie evidence of
intentional discrimination [citation], because the prosecutor offered an explanation for the challenge, and
the trial court ruled on the ultimate question of discrimination. [Citation.] The Vasquez court,
therefore, did not analyze the issue of whether the defendant had made out a prima facie case because the
trial court had impliedly ruled that a prima facie case had been shown. Given that the defendant had
met his burden, the court of appeal looked only at the ultimate question of discrimination, an inquiry
that does involve scrutiny of the prosecutor's explanation for his challenge.

Here, in contrast to Kesser, Crittenden, and Vasquez,the trial court explicitly ruled that defendants had
not met their burden of showing a prima facie case, and correctly did not consider the prosecutor's
explanation for his peremptory challenge.20 Therefore, when we consider this issue, we look only at the
record before the trial court at the time it made its prima facie case ruling.

F.Corroboration of Sanchez Testimony

Mota also argues that Sanchezwhom the trial court found was an accomplice as a matter of lawwas not
adequately corroborated as required by section 1111 and, therefore, the jury could not have relied on it to
reach its verdicts. We disagree.

With regard to the Centron murder, Sanchez's testimony regarding Molina's role as the shooter was
confirmed by Molina's admission to his mother that he had, in fact, shot Centron. Sanchez's testimony
regarding the McIntosh murder to the effect that Mota told him he had shot someone that night, was
corroborated by the testimony of Detective David Hoff that he had found the gun Gomez used in the
shooting in Menendez's bedroom. In addition, Contra Costa County Deputy Sheriff Criminalist
Terreance Wong's expert testimony that the gun recovered from Menendez's bedroom was the weapon
used to shoot McIntosh corroborated Sanchez's testimony regarding the shooting. Moreover, even if
Sanchez's testimony was not admissible, our review of the record indicates that there was ample evidence,
particularly from the testimony of Menendez, Ruelas, Cervantes and Valencia to support defendants'
convictions.

G.Admissibility of Mota's Booking Statements Regarding Gang Membership

1.Facts

On May 3, 2008, after he was arrested, Mota was taken to the Contra Costa County's Martinez detention
facility. When an arrestee such as Mota first arrives at the detention facility, an escort deputy meets
him and asks three questions. They will ask them if they have been here before. That will aid the
booking officer in bringing up their information. [] They will ask them if they have any gang affiliations
so that they know where to put them once they come inside of intake. [] And then they will ask them if
they have any fears for their safety. If a suspect reports any fear for his safety, requests protective
custody or if they belong to a gang they will go into one of the rooms to await the processing

Contra Costa County Sheriff's Deputy Michael Rector and Deputy Gonzalez, 21 were the back door intake
deputies that evening and the first deputies Mota encountered when he arrived at the detention facility.
Upon his arrival, Mota was put in a separate room. When Rector told Mota he was going to search him
for contraband, Mota began to laugh nervously. Mota then said, man, I'm in here for some shit that I
didn't do. They said that I killed someone, but it wasn't me. I was there, but I didn't kill anyone. The
guy that did it is already in jail. He confessed already, but now he is trying to bring me down too Mota
became agitated and said, I'm a gang banger, but I'm not a murderer. He then told Rector that I told
those other cops that I didn't know anything because I thought I would be in trouble, but now I don't
care Rector asked Mota if he wanted to talk to a San Pablo Police detective. Mota replied, Yeah, I
will, but first I should talk to my lawyer. After I talk to him I will tell you guys what really went down

Rector did not ask Mota about his gang affiliation. He did, however, understand that Mota was involved
in a gang, based on earlier statements Mota had made to Deputy Gonzalez, who was working alongside
him that evening.
Mota's statements struck Rector as important to the San Pablo Police Department, so he wrote up a
summary of the conversation in order to assist them in their case.22

Following Rector and Gonzalez's interaction with Mota, Deputy Bryan Zaiser, who worked in the facility's
classification unit, interviewed Mota. He did so because Mota appeared to be gang affiliated. Zaiser
would typically tell the arrestee that the classification questions were for an administrative purpose, and
for their housing. Prior to the interview, Zaiser did not read Miranda warnings to Mota, did not advise
him that he had a right to decline to answer the questions nor did he tell him he was required to answer
the questions. Mota did not express any fear for his safety before the interview.

Zaiser filled out a classification questionnaire when he spoke to Mota. Zaiser indicated on the
questionnaire that Mota identified himself as affiliated with the Sureo street gang, and said he was
part of VFL, which is Varrio Frontero Loco, and had been since he was 14 years old. According to
Zaiser, Mota told him that he (Mota) was an active Sureo gang member.

At the time he interviewed him, Zaiser was aware that Mota had been charged with murder. 23 He did not
know that Mota had been accused of killing a suspected Norteo.

Zaiser testified that, because of the risk of harm to an inmate suspected of killing a Norteo, he would not
house that inmate in the general population, where Norteos were housed. There was separate housing
for Sureos.

Each of the murder charges against Mota alleged an enhancement for participating in a criminal street
gang pursuant to section 186.22, subdivision (b)(1). He was also charged under section 182.5 with
participating in a criminal street gang.

Before trial, Mota moved to suppress his admission of gang membership. He argued that because the
sheriff's deputies to whom he disclosed his gang affiliation knew or should reasonably have known that
the questions about his gang affiliation were likely to elicit an incriminating response, they were required
to give Miranda warnings before questioning him.

The People contended that because none of the sheriff's deputies who discussed with Mota his gang status
were actually aware that he had been charged with gang-related crimes, the questions he was asked were
part of a custodial interrogation for which no Miranda warnings were required.

In admitting this evidence, the court made a number of factual findings. First, it found that the sole
purpose of this interview and the form is to ensure the safety of inmates and staff at the county jail. The
information gathered is essential to maintain security at the jail [] [I]f the jail were to house rival gang
members together at random it would pose a grave security risk to both the inmates and the staff. [] So
I find that it is a fundamental and essential obligation of the sheriff's department to determine whether it
is dangerous to house any inmate with any other inmate or any gang member with any rival gang
member.

The trial court stressed that although Zaiser knew that Mota had been charged with murder, Zaiser was
not aware of the gang enhancement and gang charges alleged against Mota. The court found, therefore,
that Zaiser had no actual subjective intent to gather incriminating information. The court also noted
that Zaiser's subjective intent was not the standard but it is a relevant factor.

Zaiser did not, in the court's opinion, use any coercive tactics, that is, no threats, no promises. There
was no threat that if Mr. Mota didn't answer the questions, that he would be housed with Norteos.
With regard to Mota's understanding of the purpose of these questions, the court found that Mr. Mota
would have every reason to make sure that the deputies knew to house him with Sureos. It would be in
Mr. Mota's wholly personal interest in self-preservation that he be classified correctly. And it would be
extreme danger to his life if he were not classified correctly and housed with other Sureos. [] So my
view is that Mr. Mota would have wanted the deputies to know that he was a Sureo so his life would not
be imperiled. And I believe he willingly and voluntarily answered the questions for that reason.
The court denied the motion to dismiss and Mota's admission of gang membership was admitted at trial.
The jury ultimately found Mota guilty of the street gang conspiracy charge and also found the street gang
enhancements true as to the three charged homicides of which he was found guilty.

2.Discussion

Mota contends that the trial court erred in denying his motion to suppress the statements he made during
his classification interview. He argues that this interview constituted a custodial interrogation and,
therefore, the law enforcement personnel he spoke with were required to read him his Miranda rights.
We agree.

In Rhode Island v. Innis (1980) 446 U.S. 291 (Innis), the United States Supreme Court clarified what sort
of police action constitutes a custodial interrogation that must be preceded by a Miranda warning. The
Innis court held that interrogation under Miranda refers not only to express questioning, but also to
any words or actions on the part of the police (other than those normally attendant to arrest and custody)
that the police should know are reasonably likely to elicit an incriminating response from the suspect.24
(Innis, supra, 446 U.S. at p. 301.) Accordingly, [a] practice that the police should know is reasonably
likely to evoke an incriminating response from a suspect amounts to interrogation. But, since the police
surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of
interrogation can extend only to words or actions on the part of police officers that they should have
known were reasonably likely to elicit an incriminating response. (Innis, supra, 446 U.S. at pp. 301
302.)

Ten years later, in Pennsylvania v. Muniz (1990) 496 U.S. 582, 600602 (Muniz), the court considered
whether the Miranda safeguards came into play when a police officer asked a suspect in custody for
among other thingshis name, address, height, weight, eye color, date of birth, and current age25

In considering this question, the court began with the general rule set out in Innis, that [c]ustodial
interrogation for purposes of Miranda includes both express questioning and words or actions that, given
the officer's knowledge of any special susceptibilities of the suspect, the officer knows or reasonably
should know are likely to have the force of a question on the accused, [citation] and therefore be
reasonably likely to elicit an incriminating response. The court then concluded that questioning a
suspect about his name, address, height weight, eye color date of birth and current age fell within a
routine booking question exception to Miranda, an exception that applies to questions asked in order to
secure the biographical data necessary to complete booking or pretrial services. In reaching this
conclusion, the court relied on the lower court's factual finding that these questions were requested for
record-keeping purposes only, [citation] and therefore the questions appear reasonably related to the
police's administrative concerns. (Muniz, supra, 496 U.S. at pp. 601602.)

Even before the United States Supreme Court decided Muniz, our Supreme Court, in People v. Rucker
(1980) 26 Cal.3d 368, 387 (Rucker), held that [t]he Miranda safeguards are not necessary at a proper
booking interview at which certain basic information is elicited having nothing to do with the
circumstances surrounding any offense with which the defendant has been charged. [Citations.] The
booking procedure, as defined by statute (Pen.Code, 7, subd. 21), has been described as essentially a
clerical process. [Citation.] The limited information needed at a booking procedure is required solely
for the purposes of internal jail administration, not for use in connection with any criminal proceeding
against the arrestee. When use of this information is confined to those proper purposes, its elicitation
cannot be considered incriminatory.

The Rucker court went on to hold, however, that although Miranda warnings need not be given at a
booking interrogation intended to elicit from an arrestee the basic, neutral information that is necessary
for proper jail administration, [the state is forbidden to use] the arrestee's responses in any manner in a
subsequent criminal proceeding.26 The court explained that [i]t is not just the nature of the
information revealed but the potential for incrimination under all the circumstances that is important.
In the present case, appellant had been arrested for a homicide. Homicide is an area permeated with
criminal statutes, and those arrested for murder are, for purposes of the privilege, a group inherently
suspect of criminal activities. [Citation.] Evidence of an arrestee's responses to booking questions
can constitute evidence which will facilitate [his] conviction [] unless its use is limited to the purposes
for which it was elicited. [Citation.] (Rucker, supra, 26 Cal.3d at p. 389.) Although Rucker appears to
have been superseded by Proposition 8 (People v. Herbst (1986) 186 Cal.App.3d 793, 799800), the
Rucker court's definition of a routine booking procedure is consistent with that articulated in Muniza
procedure designed to elicit basic, neutral information. (Rucker, supra, 26 Cal.3d at pp. 388389.)

Our Supreme Court very recently considered the booking exception in People v. Williams (2013) 56
Cal.4th 165 (Williams). In that case, a suspect in custody told a police officer during his intake interview
that he needed protection because an unidentified inmate had threatened to stab him. (Id. at p. 183.)
When one of the officers asked why he had been threatened, defendant responded [b]ecause I killed two
Hispanics. (Id. at p. 184.) Another officer recalled asking defendant what his crime was. The officer
noted defendant's statement that he had killed two Hispanics in an interview intake report that he did not
provide to any investigating agency. (Id. at p. 184.) The statement was ultimately used at trial against
the defendant.

The Williams court held that defendant's un-Mirandized admission that he had killed two Hispanics fell
under the booking exception to Miranda. In so doing, the court cited the Innis court's definition of
interrogation: [T]he term interrogation under Miranda refers not only to express questioning, but
also to any words or actions on the part of the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to elicit an incriminating response from the
suspect [T]he Miranda safeguards were designed to vest a suspect in custody with an added measure of
protection against coercive police practices, without regard to objective proof of the underlying intent of
the police [S]ince the police surely cannot be held accountable for the unforeseeable results of their
words or actions, the definition of interrogation can extend only to words or actions on the part of police
officers that they should have known were reasonably likely to elicit an incriminating response. (Innis,
supra, 446 U.S. at pp. 301302, fns. omitted.).) (Williams, supra, 56 Cal.4th at pp. 186187.)

The court, citing People v. Gomez (2011) 192 Cal.App.4th 609, 630, then noted that the governing
considerations in determining whether questions fall within the booking exception are as follows: In
determining whether a question is within the booking question exception, courts should carefully
scrutinize the facts surrounding the encounter to determine whether the questions are legitimate booking
questions or a pretext for eliciting incriminating information. [Citation.] Courts have considered several
factors, including the nature of the questions, such as whether they seek merely identifying data necessary
for booking [citations]; the context of the interrogation, such as whether the questions were asked during
a noninvestigative clerical booking process and pursuant to a standard booking form or questionnaire
[citations]; the knowledge and intent of the government agent asking the questions [citations]; the
relationship between the question asked and the crime the defendant was suspected of committing
[citations]; the administrative need for the information sought [citations]; and any other indications that
the questions were designed, at least in part, to elicit incriminating evidence and merely asked under the
guise or pretext of seeking routine biographical information [citations]. [Citation.] (Williams, supra,
56 Cal.4th at p. 187.)

The Williams court concluded that Williams' intake interview at Folsom Prison was closely analogous to
the process of being booked into jail. The court pointed out that not only did the officers have no
intention of eliciting an incriminating response, but the follow up questions they asked were not ones they
should reasonably have expected to elicit an incriminating response. The court explained: Whether it
was White or Reed who asked defendant either why are they going to stab you? (as White remembered),
or what his crime was' (as Reed recalled), neither question was designed to elicit an incriminating
response. The officers were appropriately responding to defendant's own security concern, and would
not reasonably have expected him to produce a confession. (Williams, supra, 56 Cal.4th at p. 188.)

Turning now to this case, we begin by noting that the trial court found that although the deputies were
aware that Mota had been charged with murder, they were not specifically aware that, in addition to
murder, Mota had been charged with an enhancement and an additional crime based on his gang
membership. Therefore, they did not ask Mota this question in order to elicit an incriminating response.
 However, as the trial court recognized, whether a particular question was intentionally designed by the
police to evoke an incriminating response is only one fact the court looks at in determining whether words
or actions on the part of a police officer constitute an interrogation. Innis, Muniz and Williams all make
clear that an officer's subjective intent in asking a question is neither the only fact nor the determinative
fact the court should consider in determining whether a question falls within the booking exception.
Therefore, even if a question was not intended to evoke an incriminating response, if it was a question the
officer should have reasonably expected to evoke such a response it would fall outside the booking
exception.

Here, the deputy who asked Mota whether he belonged to a gang should [have] know[n] that question
was reasonably likely to elicit an incriminating response (Muniz, supra, 496 U.S. at p. 601.) Section
186.22, which imposes criminal penalties for participation in a criminal street gang, is part of the
California Street Terrorism Enforcement and Prevention Act enacted in 1988. This enhancement had
been in existence for more than 20 years before Mota was questioned, and it is unlikely that the deputy
was unaware that participation in a criminal street gang is a felony or that an affirmative answer to the
question would be incriminating. Similarly, section 182.5, which imposes an additional penalty for
conspiracy to commit a felony by active participants in a criminal street gang, was added by section 3 of
Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, which was effective on
March 8, 2000. In light of the length of time these laws had been on the books, a law enforcement
professional should have known that an incoming inmate's admission of gang membership could well be
incriminating.

It was also unlikely that the deputy would be unaware of the possibility that Mota might be a gang
member and thus particularly likely to give an incriminating response to this question. The trial court
found that this facility housed a large population of gang members, so many that they created a serious
and real risk to the safety of inmates in rival gangs as well as to the deputies themselves. A law
enforcement official working in this milieu would not only be particularly likely to be aware of laws
designed to deter such violence, he would also be aware that many inmates coming into the facility might
belong to gangs. In such a setting, the possibility that an inmate's gang affiliation might be incriminating
was neither abstract nor remote. Therefore, the deputies should have known that asking for this
information was reasonably likely to elicit an incriminating response from Mota. And, of course, it did. 27

Nor did this question seek routine biographical information that would fall within the booking exception
to Miranda. The nature of the information for which this exception is intended to apply is aptly
demonstrated by the cases the Muniz plurality recognized as establishing this exception and by Muniz
itself. The pre-Muniz cases cited by that court involve questions designed to gather mere pedigree
information or routine background information. (United States v. Avery, supra, 717 F.2d at pp. 1024
1025 [subjects such as defendant's date of birth and address in order to complete the identification form
which did not relate, even tangentially, to criminal activity]; United States v. MataAbundiz, supra, 717
F.2d 1277 [background questions, which were not asked during routine booking procedure, were directly
related to an element of crime the interrogating officer suspected of defendant did not fall within routine
booking exception]; United States v. GlenArchila, supra, 677 F.2d at pp. 815816 (11th Cir.1982) [home
address]; see also United States ex rel. Hines v. LaVallee (2nd Cir.1975) 521 F.2d 1109, 11121113 [length
of marriage and number of children disclosed to officer in casual conversation was merely basic
identification]; United States v. Burns (2nd Cir.1982) 684 F.2d 1066, 1075 1076 (Burns).) [appellant's
history of drug use, past record, and personal finances, cannot be characterized as mere pedigree where
they could be incriminating at trial].)

Muniz, like the federal cases that preceded it, recognized a booking exception for the sort of information
that is, except in unusual circumstances, not reasonably likely to elicit an incriminating response. One's
name, address, date of birth, length of marriage, number of children seldom relate even tangentially to a
crime. Nor would they generally be expected to incriminate a defendant.

Here, in contrast, the fact that a suspect in custody is a member of a gang often carries with it penal
consequences. This information cannot be characterized as mere pedigree such as a name, address, or
birthdate. (Burns, supra, 684 F.2d at p. 1076.) It could be [and was] incriminating at trial (ibid.) and,
as such, is not routine background information of the sort that has been considered outside the Miranda
safeguards. Nor is it the case that a question falls within the booking exception simply because it is
routinely asked during the booking process. As the court noted in United States v. Williams, supra, 878
F.Supp.2d at page 210, the mere timing of the question is insufficient to make it a legitimate booking
question. Nor is it the case that the characterization of this question as administrative makes it a
routine booking question. As the court in Williams observed, asking Maurice Williams how he had
arrived at the police station falls outside the routine identifying questions contemplated by the booking
question exception. His mode of transportation on that particular day is not a personal identifying
characteristic, nor was his answer necessary to serve a required property seizure receipt.

United States v. Washington (9th Cir.2006) 462 F.3d 1124 (Washington) does not hold, as the People
suggest, that the gathering of gang identification information falls outside the scope of Miranda under the
routine booking exception. Although Washington involved a booking procedure in which that
information was requested, the challenged evidence was not a defendant's self-identification as a gang-
member. Rather, the court considered a question that asked defendant for his gang moniker, or
nickname. The court ruled that this question fell within the routine booking exception because
[q]uestions about a person's identity are not unconstitutional even if identification of the person may
help lead to the prosecution of that person for a crime. (Id. at p. 1133.) Therefore, the court rejected
defendant's contention that his nickname should be suppressed, ruling that such a request is no different
from simply asking for a suspect's name. (Ibid.) The question asked Mota was not comparable to the
identifying questions the Washington court ruled did not constitute interrogation. Mota was not being
asked to reveal his name when he was asked whether he belonged to a gang. And certainly the fact of
gang membership is not routine identifying information. Therefore, Washington is of no assistance to
the People.

The People also point out that in People v. Gomez, supra, 192 Cal.App.4th 609, the Fourth District ruled
that questions regarding gang affiliation during a booking interview fell within the routine booking
exception to Miranda because they were not designed to elicit an incriminating response. The Gomez
court appears to have based its conclusion on a footnote in Muniz, in which the court agreed with amicus
United States that [r]ecognizing a booking exception to Miranda does not mean, of course, that any
question asked during the booking process falls within that exception. Without obtaining a waiver of the
suspect's Miranda rights, the police may not ask questions, even during booking, that are designed to
elicit incriminatory admissions. (Muniz, supra,496 U.S. at p. 602, fn. 14.)

Muniz, however, does not hold that the only type of question asked during booking that falls outside the
routine booking exception is one which is designed to elicit incriminatory admissions. (Muniz, supra,
496 U.S. at p. 602, fn. 14.) Were this the case, the court's language regarding questions the police
should know might elicit an incriminating response would be meaningless, given that something an
officer should know is something he did not, in fact, subjectively know. (Id. at p. 601.) The Gomez
court recognizes that often an officer's subjective intent is quite relevant to this issue. Indeed, it is
determinative in those situations in which the officer clearly designed the question with an interrogative
intent. But even if an officer does not intend to elicit an incriminating response, and has not designed
the question to do so, a question can still constitute interrogation subject to the Miranda protections if the
officer should have known this question was reasonably likely to elicit an incriminating response.

When answering this question, Mota had two choices. He could either admit to gang membership and
incriminate himself or he could lie or refuse to answer the question and risk physical injury when he was
housed with Norteo inmates.28 We know of no other case involving the routine booking exception where
the defendant was asked to choose between incriminating himself or risking serious physical injury. The
price of protecting oneself from harm while in custody should not be incriminating oneself.

This is not to say the question cannot or should not be asked. We fully expect the police to continue to
use it upon booking in order to protect jail personnel and inmates from harm. We hold only that the
answer to this question may not be used against the defendant at trial, as it was here, in the absence of
Miranda warnings.
3.Prejudice

The trial court's error in admitting this testimony was, however, harmless beyond a reasonable doubt
under Chapman v. California (1967) 386 U.S. 18, because Mota's gang membership was convincingly
established by many other sources. Ruelas, Sanchez and Menendez all testified that, based on their
familiarity with Mota as fellow gang members and/or friends, Mota was a member of Varrio Frontero
Loco. In addition, San Pablo Police Officer Robert Brady, who testified as an expert oin Norteo and
Sureo criminal street gangs, opined that Mota was a gang member. He did so based on information he
had received from other gang members. He also based his opinion on a 2005 robbery Mota had
committed in Willows in which Mota wore a blue bandana (the Sureo color). When he was committed
to county jail following his arrest for this robbery, he was observed throwing up a hand sign that
signified his Sureo status. Finally, in photographs taken of Mota at Victor Valencia's funeral, Mota
made similar gang signs. Because Mota's gang affiliation was amply established by evidence other than
the statements made by him during booking, any error is harmless beyond a reasonable doubt.

H.Unjoined Perpetrators of Same Crime

Defendants argue that the trial court erred in giving the jury CALJIC No. 2.11.5. The instruction is as
follows: There has been evidence in this case indicating that a person other than a defendant was or may
have been involved in the crime for which that defendant is on trial. [] There may be many reasons why
that person is not here on trial. Therefore, do not speculate or guess as to why the other person is not
being prosecuted in this trial or whether [he][she] has been or will be prosecuted. Your sole duty is to
decide whether the People have proved the guilt of the defendant on trial. The use note to this
instruction states: Do not use this instruction if the other person is a witness for either the prosecution
or the defense.

Defendants argue that this instruction permitted the jury, when evaluating the credibility of the five
informant witnesses, to ignore the fact that they were all given deals of one kind or another. The issue of
whether it was error to give this instruction in a trial in which unjoined coperpetrators testified was
addressed most recently in People v. Fonseca (2003) 105 Cal.App.4th 543 (Fonseca). In that case, the
trial court gave the 1996 version of CALJIC No. 2.11.529 The court held that this iteration of the
instruction removed any lingering possibility that a reasonable juror would misunderstand his or her
duty to consider all relevant factors bearing on witness credibility. Therefore, we hold that CALJIC No.
2.11.5, in its 1996 version, is not erroneous when given in a trial where an unjoined coperpetrator
testifies. (Fonseca, supra, 105 Cal.App.4th at p. 550.)

The trial court in this case gave the 2004 version of CALJIC No. 2.11.5, which was revised to incorporate
the Fonseca court's suggestion that the the 1996 instruction would get closer to the heart of the matter if,
instead of the italicized words[30 ] the phrases speculate upon or guess at, or words to that effect were
substituted. The jury in this case, therefore, was instructed with a version of CALJIC No. 2.11.5 that
would not suggest to a juror that he no longer had a duty to consider all relevant factors bearing on
witness credibility. (Fonseca, supra, 105 Cal.App.4th at p. 550.) We agree with the Fonseca court's
reasoning regarding this instruction and, therefore, reject defendants' argument that the trial court erred
in giving it.

I.PostCrime Jail Incidents Used to Establish Gang Membership

Several weeks after he was incarcerated, and about a month after the last charged homicide, Mota was
involved in an incident in which he and Luii Hernandez attacked Jorge Sanchez, one of the informants in
this case, shortly before the end of free time in the Q module, where Sureos are housed. After the
fight, Sanchez was separated from Mota and Hernandez and not let out with the Sureos again.
Eventually, Sanchez reached a deal with the prosecutor and entered a witness protection program.

Defense counsel sought to have evidence of this fight excluded. The prosecution argued that the
evidence was admissible to show Mota acted in concert with other gang members to accomplish certain
goals. The trial court ultimately admitted evidence of the fight between Sanchez, Mota and Hernandez.
 It found that the May 24 incident was relevant to Mr. Mota's gang membership, his conduct and
participation in these crimes on behalf of the gang. So it's relevant to gang membership and motive and
intent for the charged crimes. He explained that [Evidence Code section] 1101(b) would permit
admission of this because it's proof of motive and intent. In addition, the fact that it's one month
later [than the last homicide committed before Mota's arrest] in my view was not so remote to make it
irrelevant.31

Jorge Sanchez testified about the fight.32 According to Sanchez, after he was arrested, he was placed in
the Q module, where Sureos were housed. During free time, Mota and Hernandez approached him.
Mota hit him in the head and Sanchez fought back. The deputy maced them and Sanchez got on the floor
when the deputy told him to. Mota did not. Instead, he got on top of Sanchez, who fought back again.
After this incident, Mota was rolled up to B module. He explained that this occurred just so you ain't
no good no more.

Sheriff's Deputy Jesus Garcia testified that on May 24, 2008, he was assigned to the Q Module at the
Martinez Detention facility. Mota, Hernandez and Sanchez were let out with the other Sureos on the Q
Module. Although the Q Module housed a variety of administrative segregation inmates as well as
protective custody inmates, Sureos were let out alone by themselves.

Mota contends that evidence that he and another Sureo gang member attacked a Sureo informant while
they were in jail was not relevant to the issue of whether he was an active participant in a criminal street
gang at the time the crimes in this case were committed because Mota could have joined the Sureos gang
after he arrived in prison and as a matter of self-preservation or camaraderie. He further argues that the
admission of this evidence was not permitted under either section 186.22 or the street gang enhancement
because evidence of post-crime activities cannot be used to show a violation of that statute. Finally, he
argues that the admission of this evidence violated Evidence Code section 1101, subdivision (b), because it
was used solely to show his bad character. We disagree.

We apply the deferential abuse of discretion standard when reviewing a trial court's ruling on a relevance
objection. (People v. Kipp (2001) 26 Cal.4th 1100, 1123.) Evidence is relevant if it has any tendency
in reason to prove or disprove a disputed fact at issue. [Citations.] (Id. at p. 1123.) Evidence of Mota's
participation with another Sureo in an attack on a snitch was relevant to the issue of whether he was a
gang member at the time the murders were committed. The fact that he acted in concert with another
gang member was also relevant to the issue of whether in committing the charged crimes he intended to
willfully promote[], further[], or assist[] in any felonious criminal conduct by members of that gang
(186.22, subd. (a).) The jury could reasonably infer from his behavior that both were, in fact, the case. 33

Mota cites People v. Duran (2002) 97 Cal.App.4th 1448 (Duran) and People v. Godinez (1993) 17
Cal.App.4th 1363, disappoved on other grounds in People v. Russo (2001) 25 Cal.4th 1124, 1134, for the
proposition that [c]rimes occurring after the charged offense cannot serve as predicate offenses to prove
a pattern of criminal gang activity. (Duran, supra, 97 Cal.App.4th at p. 1458.) These cases are of no
assistance to Mota, however, because this evidence was not offered to establish a predicate offense.
Rather it went to whether he was a gang member when the crimes were committed and his intentions in
committing these crimes.

With regard to Mota's Evidence Code section 1101, subdivision (b) argument, [c]ase law holds that where
evidence of gang activity or membership is important to the motive, it can be introduced even if
prejudicial. [Citations.] (People v. Martin (1994) 23 Cal.App.4th 76, 81; People v. Olguin (1994) 31
Cal.App.4th 1355, 1369 1370.) Given that evidence of the circumstances and nature of this fight were
directly relevant to Mota's motivation for committing the charged crimes, we find no error.

J.Prosecutorial Misconduct

1.Absence of Evidence of Blood in Mota' s Car

Menendez testified that, while he was in Mota's car in mid-April 2008, he shot himself in the leg, causing
significant bleeding. About a month later, Mota's car was examined by the police. This examination
yielded no physical evidence to corroborate Menendez's story: no blood, bullets or fingerprints were
found. The car contained a child seat and other baby items.

Mota's counsel argued, during closing argument, that because there was no evidence of a gun-inflicted
injury in Mota's car, Menendez had lied when he testified about this incident. Specifically, counsel told
the jury that Mota's car was seized, it was searched, and what was found in the car? Absolutely no
blood. Not a single drop of blood. [] No forensic evidence whatsoever, despite the car's having been
seized and thoroughly searched. Not a drop of blood. Defense counsel went on: And we all know you
can't clean up blood. And if you try to clean it up, you leave traces of chemicals.

The prosecutor objected on the ground that these were facts not in evidence. The trial court sustained
this objection, pointing out that defense counsel's assertion that an effort to clean up blood leaves
chemical traces, is not either common knowledge or in evidence.

The prosecutor responded to defense counsel's argument regarding the absence of evidence of any blood
from Menendez's self-inflicted wound. He told the jury that after Mota dropped Menendez off at the
hospital, it makes sense that he [Menendez] went to go clean it. The court overruled defense counsel's
objection that there was no evidence of that. The trial court noted that the general rule that [c]ounsel
are permitted to ask that the jury draw inferences from the evidence presented

Defendants now argue that the prosecutor committed misconduct when he suggested that the reason
there was no blood in the back of the car might have been that Mota cleaned up the blood. We reject this
argument.

The applicable federal and state standards regarding prosecutorial misconduct are well established. A
prosecutor's intemperate behavior violates the federal Constitution when it comprises a pattern of
conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due
process. (People v. Gionis (1995) 9 Cal.4th 1196, 1214; People v. Espinoza (1992) 3 Cal.4th 806, 820.)
Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial
misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt
to persuade either the court or the jury. (People v. Espinoza, supra, 3 Cal.4th at p. 820.) (People v.
Samayoa (1997) 15 Cal.4th 795, 841.) Regarding the scope of permissible prosecutorial argument, we
recently noted a prosecutor is given wide latitude during argument. The argument may be vigorous as
long as it amounts to fair comment on the evidence, which can include reasonable inferences, or
deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state
matters not in evidence, but which are common knowledge or are illustrations drawn from common
experience, history or literature. [Citation.] A prosecutor may vigorously argue his case and is not
limited to Chesterfieldian politeness' [citation], and he may use appropriate epithets' [Citation.]
(People v. Williams (1997) 16 Cal.4th 153, 221; People v. Heishman (1988) 45 Cal.3d 147, 195196
(Heishman) [counsel prohibited from stating or implying facts for which there is no evidence before the
jury.].)

The defense and the prosecutor presented the jury with different explanations for the lack of evidence of
blood in Mota's car. Neither was implausible. Certainly, when there is an injury, particularly a gunshot
wound, one might expect to find blood where the injury occurred. The fact that no blood was found in
Mota's car lends itself to two inferences: that Menendez lied when he recounted the incident or Mota
cleaned up the blood. What is important about both possibilities is that they amount to fair comment
on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.
(People v. Williams, supra, 16 Cal.4th at p. 221.)

Nor is it the case, as defendant argues, that in asking the jury to infer that Menendez had cleaned the
blood off the seat of his car, the prosecutor stated or implied facts for which there is no evidence before
the jury. (Heishman, supra, 45 Cal.3d at p. 195.) In Heishman, our Supreme Court found that the
where a prosecutor implied a conclusion based on evidence in the record, no misconduct took place. As
in Heishman, the prosecutor's argument was based on the facts before the juryhere, the fact that the car
was devoid of blood.

We also reject defendant's argument that his Fifth and Fourteenth Amendment rights to a fair trial and
due process were violated because the trial court sustained the prosecutor's objection to his statement
regarding the chemical byproducts of cleaning up the blood, and overruled his objection in which the
prosecutor suggested Menendez had cleaned the blood off the seat. The two statements were not
equivalent, as defendant contends. Nor did the trial court err when it allowed one and not the other.

2.Disparagement of Defense Lawyer During Rebuttal

Mota also argues that the prosecutor disparaged his truthfulness and integrity during rebuttal closing
argument.

In the first alleged instance, the prosecutor told a story his grandfather, a farmer, told about a lawyer who
was his neighbor. The farmer observed one day that the rope tying the goat in the lawyer's yard had been
chewed through and the farmer's rose bushes had been eaten. The farmer told the lawyer that the
lawyer's goat had eaten his rose bushes. The lawyer told the farmer It wasn't my goat. I don't have a
goat. [] If I do have a goat, it didn't eat your roses. [] If I do have a goat and it did eat your roses, it's
because the rose bushes made them eat the roses. [] If I do have a goat and it did eat your roses then
the goat was insane.

The prosecutor told the jury that this story illustrated that his grandfather wasn't that happy that I was
going to be a lawyer. And the point is, ladies and gentlemen, what are we here for? [] Are we here for
the truth, or are we here just to throw everything out? What did you just hear from the defense for Mr.
Mota? [] Well, ladies and gentlemen, you heard the following things: And it wasn't stated explicitly to
you because [defense counsel] didn't want to come out and say that. [] How many defenses are there for
Mr. Mota? I don't get it. My client wasn't there. He may not have been there for the 216 and 426 of
'08 killings. [] If my client was there, he didn't know what these guys were going to do. [] If my client
was there and he did know what they were doing, and it wasn't self-defense, it was imperfect self-defense
so he is only guilty of voluntary manslaughter. [] If my client was there and he did know what they were
doing and it wasn't self-defense or imperfect self-defense, then the bullets fired by Javier Gomez did not
actually kill Rico McIntosh because you heard defendant Mota's attorney cross-examin[e] Mr. Ogan
extensively [] If my client was there and he did know what they were doing and it wasn't self-defense or
imperfect self-defense, and you do believe the bullets fired by Gomez actually killed Mr. McIntosh, then
my client is only guilty of lesser-included offenses that aren't on the verdict forms, so he is not guilty.

In telling this story, the prosecutor did not commit misconduct. Pointing out the inconsistencies and
implausibilities of an opponent's argument is not an attack on the opponent's personal integrity. (People
v. Medina (1995) 11 Cal.4th 694, 759, People v. Gionis, supra, 9 Cal.4th at pp. 12171218.)

Similarly permissible was the prosecutor's characterization of defense counsel as a magician trying to trick
the jury. In People v. Medina, supra, 11 Cal.4th at page 759, the court found that the prosecutor did not
demean defense counsel's integrity when he told the jury that any experienced defense attorney can
twist a little, poke a little, try to draw some speculation, try to get you to buy something The Medina
court observed that the prosecutor's argument was unobjectionable. To observe that an experienced
defense counsel will attempt to twist and poke at the prosecution's case does not amount to a personal
attack on counsel's integrity. (See also People v. Gionis, supra, 9 Cal.4th at pp. 12171218.)

Accordingly, we find no prosecutorial misconduct and reject defendants' argument.

K.Substantial Evidence of Murder and Conspiracy

Elizalde was charged with conspiracy to commit murder and murder. The People characterized Elizalde
as the conspirator who stay[ed] home and [did] nothing, but started the design or agree[d] to the
conspiracy The People told the jury that the testimony of Ruelas, Sanchez and Cervantes showed that
Elizalde was leading a charge to attack rival gang members to bring the hood back. The People's theory
was that the conspiracy to commit murder in which Mota and Elizalde participated had as its object the
killing of rival gang members and the deaths of Centron, Perez and McIntosh were, therefore, the natural
and probable consequences of a conspiracy

Elizalde now argues that substantial evidence does not establish that the murders of Centron, Perez and
McIntosh were a foreseeable consequence of a conspiracy in which Elizalde and Mota participated. 34 We
disagree.

1.General Principles

In People v. Johnson (2013) 57 Cal.4th 250, 257, our Supreme Court recently explained that [s]ection
182 prohibits a conspiracy by two or more people to commit any crime. (182, subd. (a)(1).) A
conviction of conspiracy requires proof that the defendant and another person had the specific intent to
agree or conspire to commit an offense, as well as the specific intent to commit the elements of that
offense, together with proof of the commission of an overt act by one or more of the parties to such
agreement in furtherance of the conspiracy. [Citations.] [I]it has long been established that direct
evidence is not required to prove a common unlawful design and agreement to work toward a common
purpose; the existence of a conspiracy may be inferred as well from circumstantial evidence.
[Citations.] (People v. Buckman (1960) 186 Cal.App.2d 38, 4647; People v. Calhoun (1958) 50 Cal.2d
137, 144.) To the extent that a particular crime could be said to be unplanned, a conspirator is
responsible for it if it was a reasonably foreseeable consequence of the conspiracy. Whether the
unplanned act was a reasonably foreseeable consequence of the conspiracy must be evaluated under all
the factual circumstances of the individual case and is a factual issue to be resolved by the jury [citation],
whose determination is conclusive if supported by substantial evidence. (People v. Zielesch (2009) 179
Cal.App.4th 731, 739740.)

2.Substantial Evidence of Conspiracy

Our review of the record indicates that substantial evidence supports the jury's conclusion that (1)
Elizalde conspired with Mota to reestablish Varrio Frontero Loco by, among other things, murdering rival
gang members and (2) the deaths of Centron, Perez and McIntosh were the natural and probable
consequence of that conspiracy.

Officer Brady of the San Pablo Police Department testified as a gang expert that in late 2007 and early
2008, Varrio Frontero Loco and the Mexican Locos were beginning to clique up together. Based on
several murders that occurred as well as informant information, he believed that Gamaliel Elizalde was
the head shot-caller of Varrio Frontero Loco. The gang was recruiting members and committing
murders. He believed Elizalde and other members of Varrio Frontero Loco were attempting to
reestablish the gang.

Sanchez testified that in the year leading up to the murders of Centron, Perez and McIntosh, Elizalde was
the leader of Varrio Frontero Loco. The gang was on the declinemembers were being hurt and territory
was disappearing. To counteract this state of affairs, Elizalde, along with Sanchez, Mota, Ruelas, and
others, began to recruit new members. They also embarked on a campaign to do more damage to the
Norteos. Elizalde encouraged Varrio Frontero Loco members to make sure that the Norteos were
aware that they were a present and powerful force by going into Norteo territory to beat up or shoot
anyone who appeared to be a Norteo. Menendez confirmed that this was, indeed, the understanding of
the Varrio Frontero Loco members who wanted to get rid of Norteos. Although Menendez was not
sure, he believed that Elizalde was the shot-caller. Ruelas confirmed Menendez's suspicion regarding
Elizalde's role in the Varrio Frontero Loco. Ruelas also testified that Molina told him that they were
bringing the hood back and violence against rival gang members was an important part of this effort.

In addition to substantial evidence that Elizalde was a significant player in a conspiracy to re-establish
Varrio Frontero Loco as a powerful gang through violenceincluding murderagainst Norteos,
substantial evidence also supports the jury's conclusion that the deaths of Centron, Perez and McIntosh
were the foreseeable consequence of the conspiracy to bring[] the hood back. Centron, Perez and
McIntosh were targeted because they appeared to be Norteos, the principal target of the Varrio Frontero
Loco. Elizalde's argument that these murders were not foreseeable because the victims were outside
Richmond, which was the area claimed by the Sureos, makes little sense. San Pablo was well known to
be Norteo territory. Given that the Varrio Frontero Loco conspired to kill Norteos, they would
generally do so in San Pablo, rather than Richmond.

The jury's verdict, therefore, is supported by substantial evidence.

L.Telephone Conversations Between Molina and His Mother

Elizalde contends that portions of two telephone conversationsmainly between Hector Molina (who was
in jail at the time of the conversations) and his motherbut also in one instance involving Elizalde, were
improperly admitted under Evidence Code section 1223's co-conspirator's hearsay exception. We
disagree.

1.Factual Background

In the first of the two telephone calls, both of which occurred while he was incarcerated at the Martinez
Detention Facility, Molina told his mother to contact Elizalde (Gama) and tell him that they got me in.
Hector's mother replied, [b]ut you didn't do it, if you didn't do it! and he replied Well, yes, it was me.
They already know. He told his mother to Tell [Elizalde]. Ask [Elizalde] to help you. [Elizalde] can
help you. [Elizalde] will give me money as well. Tell [Elizalde] I've told him to send me money.
Molina asked his mother to place a three way call to Elizalde. When Elizalde did not answer, Molina
left a message telling Elizalde that they got me for murder and that I need you to take care of my family
[t]ake care of my mama

In the second call, Molina's mother told him that Elizalde brought her $50. She also told him that
Elizalde told her that Molina should say no, no, no, I didn't do it, it couldn't have been me. I didn't do
anything. To keep your word, and no, no, no. Molina's mother placed another three way call to
Elizalde. This time, Elizalde answered. He instructed Molina, whatever happened, youyou say that
you don't know, okay man? Molina responded, Yeah, man. Elizalde then said On your own, man,
no. Just tell them no, you don't know and they can't get you out of that.

Elizalde sought to have evidence of these phone calls excluded on hearsay grounds. The People argued
that they were admissible under the co-conspirator exception to the hearsay rule pursuant to Evidence
Code section 1223. The trial court found that the People had clearly made a prima facie case that the
conspiracy described in the indictment existed. That the conspiracy was on-going in February and
March of 2008 at the time of the phone calls. That Mr. Elizalde was a leader of VFL or a shot-caller for
VFL and that Mr. Mota was a member of the conspiracy. And that Mr. Gomez was also a member of the
conspiracy. The court pointed out that Gomez's confession can be considered as part of the prima facie
case of his membership in the conspiracy. As Sureos, the co-conspirators lived under a number of
rules that are relevant to this analysis. [] First, is never cooperate with police. Never give a confession.
Never give a statement. Never agree to testify. If you are arrested, fellow gang members will put
money on your books to help you buy things in the jail which enables you to be more comfortable and to
increase your influence at the jail. [] The Sureos in the jail were required to contribute money or buy
things for other Sureos in custody. And then Sureos in custody were still required to assault Norteos
at every opportunity. [] So the culture of attacking rival gang members did not stop upon arrest.

The court found that Molina was released following his arrest after the Centron murder and within days
he immediately returned to the active participation in the conspiracy. Just an indication that mere
arrests [of conspiracy members] does not necessarily put their participation in the conspiracy at end.
The court did, however, redact numerous telephone conversations in which Molina was talking about his
general welfare and that sort of thing.

2.Discussion
Defendant argues that the trial court erred when it found that the conspiracy was ongoing. He contends
that because Molina had already been arrested when the telephone calls were made, the court could not
conclude that he was involved in an ongoing conspiracy.

We review the trial court's ruling under the abuse of discretion standard and will not disturb it on appeal
unless it was exercised in a manner that was arbitrary, capricious, or patently absurd and that resulted in
a miscarriage of justice. (People v. Rowland (1992) 4 Cal.4th 238, 264.) The trial court did not abuse its
discretion in admitting the excerpts from these telephone calls.

Evidence Code section 1223 provides that a statement offered against a party is not made inadmissible by
the hearsay rule if: [] (a) The statement was made by the declarant while participating in a conspiracy to
commit a crime or civil wrong and in furtherance of the objective of that conspiracy; [] (b) The
statement was made prior to or during the time that the party was participating in that conspiracy; and
[] (c) The evidence is offered either after admission of evidence sufficient to sustain a finding of the facts
specified in subdivisions (a) and (b) or, in the court's discretion as to the order of proof, subject to the
admission of such evidence.

As the proponent of the evidence, the People were required to offer evidence sufficient for the trier of fact
to determine that the preliminary fact, the conspiracy, is more likely than not to have existed. (People v.
Herrera (2000) 83 Cal.App.4th 46, 61.) The Herrera court explains that [a] conspiracy exists when one
or more persons have the specific intent to agree or conspire to commit an offense, as well as the specific
intent to commit the elements of that offense, together with proof of the commission of an overt act by
one or more of the parties to such agreement in furtherance of the conspiracy. [Citations.] These facts
may be established through the use of circumstantial evidence. [Citations.] They may also be inferred
from the conduct, relationship, interests, and activities of the alleged conspirators before and during the
alleged conspiracy. [Citations.] [Citations.] [] Once the existence of the conspiracy has been
independently established, the offering party must then make three additional showings in order for the
content of the coconspirator's statement to be considered by the trier of fact. That party must show: (1)
that the declarant (who may or may not be the defendant) was participating in a conspiracy at the time of
the declaration; (2) that the declaration was made in furtherance of the objective of the conspiracy; and
(3) that at the time of the declaration the party against whom the evidence is offered was participating, or
would later participate, in the conspiracy. [Citations.] (Id. at pp. 6465.)

We turn now to this case. The court had before it evidence that when the telephone calls were madein
February and March of 2008Elizalde, who was not in custody at the time, was the shot caller for Varrio
Frontero Loco. Even in custody, a Sureo like Molina adhered to rules of behavior established by the
gang. As the trial court put it: First, is never cooperate with police. Never give a confession. Never
give a statement. Never agree to testify. If you are arrested, fellow gang members will put money on
your books to help you buy things in the jail which enables you to be more comfortable and to increase
your influence at the jail. [] The Sureos in the jail were required to contribute money or to buy things
for other Sureos in custody. Contrary to defendant's argument that the conspiracy among the parties
to attack Norteos ended when Molina was arrested, the court found that Sureos in custody were still
required to assault Norteos at every opportunity. [] So the culture of attacking rival gang members did
not stop upon arrest. In fact, when Molina was released following his arrest after the Centron murder,
within days he immediately returned to the active participation in the conspiracy. Just an indication
that mere arrests [of conspiracy members] does not necessarily put their participation in the conspiracy at
end.

This evidence was sufficient to support a finding that it was more likely than not that Molina and Elizalde
were participants in a conspiracy when the telephone calls were made and, therefore, the telephone calls
were properly admitted.

M.Ineffective Assistance of Counsel

The short answer to Elizalde's argument that counsel was deficient for failing to object to the admission of
these telephone calls is that because (as we previously found) this evidence was admissible, any objection
would have been unavailing and, thus, the failure to object did not constitute ineffective assistance of
counsel. (People v. Frye (1998) 18 Cal.4th 894, 952, overruled on other grounds by People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22.)

N.Ruelas's MySpace Post

Luis Ruelas testified that he posted a message on his MySpace page in order to warn gang members not to
harm his family. The gist of the message was that if gang members touch my family their family can be
touched, too. The post read as follows: but dis goes to all da lil homies, stop listening to da big homies,
they dnt give a fuck bout ya lil niggas, dnt listen to Stranger, dat nigga is a nobody in VFL. Just cus hes
close to Gama dnt mean shit. He never did no, jales and Gama just uses ya to take care of his shit. He
dnt give a fuck bout ya. He posted that the true members of VFL were Sleepy, Richy, Toby, Ruelas,
Camacho, all da other VFLs except da pee wees are fucken suckas niggas.

The trial court instructed the jury pursuant to CALJIC No. 3.13 that [t]he required corroboration of the
testimony of an accomplice may not be supplied by the testimony of any or all of his accomplices, but
must come from other evidence. Elizalde argues that the instruction was incorrect because the jury
could have understood it to mean that Ruelas's accomplice testimony could be corroborated by his
MySpace post because that post might be considered non-testimonial.

Even if Elizalde had not forfeited this claim because he did not object or request a modification to the
instruction, his claim is without merit. We do not agree that the instruction could be construed as
permitting the jury to use the MySpace post as corroboration. The language of the instruction is broad
enough to encompass this particular communication. The instruction, therefore, did not violate his Sixth
Amendment right to make a defense. (Estelle v. McGuire (1991) 502 U.S. 62, 72.)

O.Elizalde's 2007 Methamphetamine Incident

As part of its showing of a predicate offense for the gang charge and gang enhancements, the People put in
evidence of an incident involving Elizalde's 2007 possession of methamphetamine for sale. Elizalde
objected to the admission of this evidence under Evidence Code section 352. He argued then, as he does
now on appeal, that the evidence was cumulative and more prejudicial than probative. The trial court
did not abuse its discretion in admitting the evidence.

At trial, two police officers testified that they searched Elizalde's home on July 18, 2007. During that
search, the officers discovered a trail of white crystals, which were later identified as methamphetamine,
leading from a bathroom to where Elizalde was standing. In addition, the officers found the same white
crystals around the top of the toilet bowl rim, on the floor of the bathroom, and on Elizalde's abdomen.
The officers also found indicia that Elizalde was selling drugs. These included small Ziploc baggies, a
digital scale, $755 cash in Elizalde's pocket and pay/owe sheets. One of the officers, who was qualified
as an expert on the possession of narcotics for sale testified that in his opinion Elizalde possessed
methamphetamine for sale and flushed it down the toilet. Elizalde was arrested for possession of
narcotics for sale and ultimately was convicted of only possession.

The trial court admitted evidence of Elizalde's conduct on this occasion to meet the predicate crime
requirements, finding that the probative value is very high because they are legitimate proof of essential
elements of the crime and enhancements. With regard to the prejudicial effect of this evidence, the
court found that although the prejudicial effect of the evidence was substantial, a limiting instruction
could mitigate that effect.35

The trial court did not abuse its discretion in admitting this evidence. Our Supreme Court recently
considered a similar objection to gang evidence admitted to prove a predicate offense under section
186.22. The court explained that, in contrast to evidence admitted under Evidence Code section 1101 to
show intent, motive or modus operandi, in which evidence is probative because of its tendency to
establish an intermediary fact from which the ultimate fact of guilt of a charged crime may be inferred.
[Citations.] In prosecutions for active participation in a criminal street gang, the probative value of
evidence of a defendants gang-related separate offense generally is greater because it provides direct proof
of several ultimate facts necessary to a conviction. Thus, that the defendant committed a gang-related
offense on a separate occasion provides direct evidence of a predicate offense, that the defendant actively
participated in the criminal street gang, and that the defendant knew the gang engaged in a pattern of
criminal gang activity. (People v. Tran (2011) 51 Cal.4th 1040, 1048.) Not only is such evidence highly
probative, but its prejudicial effect is comparatively weaker: [T]he inherent prejudice from a defendant's
separate gang-related offense typically will be less when the evidence is admitted to establish a predicate
offense in a prosecution for active participation in a criminal street gang, than when it is admitted to
establish an intermediary fact from which guilt may be inferred. Prejudice for purposes of Evidence
Code section 352 means evidence that tends to evoke an emotional bias against the defendant with very
little effect on issues, not evidence that is probative of a defendant's guilt. [Citations.] As we explained
in People v. Doolin (2009) 45 Cal.4th 390: The prejudice that section 352 is designed to avoid is not
the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.
[Citations.] Rather, the statute uses the word in its etymological sense of prejudging a person or cause
on the basis of extraneous factors. (Id. at p. 439.) That the evidence provided direct evidence of
some of the elements of the prosecution's case thus does not weigh against its admission. In addition,
because the prosecution is required to establish the defendant was an active participant in a criminal
street gang and had knowledge of the gang's criminal activities, the jury inevitably and necessarily will in
any event receive evidence tending to show the defendant actively supported the street gang's criminal
activities. That the defendant was personally involved in some of those activities typically will not so
increase the prejudicial nature of the evidence as to unfairly bias the jury against the defendant. In
short, the use of evidence of a defendant's separate offense to prove a predicate offense should not
generally create an intolerable risk to the fairness of the proceedings or the reliability of the outcome.
[Citation.] (People v. Tran, supra, 51 Cal.4th at p. 1048.)

The Tran court also addressed the contention Elizalde makes that evidence of his possession of narcotics
for sale was cumulative of the evidence of other predicate offenses offered by the prosecution.
Defendant argues that evidence of a defendant's separate offense on another occasion should not be
admitted when it is cumulative. By this he seems to mean that the evidence should not be admitted
when the prosecution has the ability to develop evidence of offenses committed on separate occasions by
other gang members. But defendant cites no authority for the argument that the prosecution must forgo
the use of relevant, persuasive evidence to prove an element of a crime because the element might also be
established through other evidence. The prejudicial effect of evidence defendant committed a separate
offense may, of course, outweigh its probative value if it is merely cumulative regarding an issue not
reasonably subject to dispute. [Citations.] But the prosecution cannot be compelled to present its case
in the sanitized fashion suggested by the defense. [Citation.] When the evidence has probative value,
and the potential for prejudice resulting from its admission is within tolerable limits, it is not unduly
prejudicial and its admission is not an abuse of discretion. Further, a rule requiring exclusion of
evidence of a defendant's separate offense on the theory the prosecution might be able to produce
evidence of offenses committed by other gang members would unreasonably favor defendants belonging
to large gangs with a substantial history of criminality. That the prosecution might be able to develop
evidence of predicate offenses committed by other gang members therefore does not require exclusion of
evidence of a defendant's own separate offense to show a pattern of criminal gang activity. (People v.
Tran, supra, 51 Cal.4th at pp.10481049.)

In our view, the evidence of Elizalde's conduct on this occasion was not so prejudicial as to preclude its
admission. The jury had before it evidence of numerous acts of violence committed by Elizalde and, in
that context, evidence that he possessed methamphetamine for sale can hardly be considered sufficiently
prejudicial to outweigh its substantial probative value.

P.Ineffective Assistance of Counsel For Failure to Object to Other Crimes Evidence

Elizalde argues that counsel was ineffective because he did not object to the introduction of evidence of
Elizalde's role in a number of crimes. He contends that this evidence was devastating, and therefore
counsel's failure to object violated the Sixth Amendment.
The evidence to which counsel did not object was: (1) testimony that Elizalde directed Sanchez and
Ruelas to kill a surviving witness to the Centron shootings; (2) evidence that Weasal who was a Varrio
Frontero Loco shot caller from prison ordered Elizalde to kill an informant and that although Elizalde did
not want to do so, he sent someone to burn the informant's house down; (3) the fact that Elizalde kept a
hit list of people whom he wanted killed and kept a stash of guns at his brother-in-law's house; (4)
Ruelas's description of an incident in which Elizalde asked Ruelas to kill someone who had slashed his
tires; and (5) Ruelas's opinion that Elizalde was killing people for no reason and that he tried to
persuade Elizalde to stop ordering so many shootings.

This evidence was highly relevant to establish Elizalde's position as the Varrio Frontero Loco shot caller
and his participation in the conspiracy to kill Norteos. Moreover, given the amount of evidence of
similar activity on Elizalde's part it was not more prejudicial than probative under Evidence Code section
352. Any objection counsel might have made regarding the admission of this evidence would have been
unavailing. In that case, the failure to object does not constitute ineffective assistance of counsel.
(People v. Frye, supra, 18 Cal.4th at p. 952.)

Q.Cumulative Error (Elizalde)

Elizalde contends cumulative error in this case rises to the level of reversible and prejudicial error.
(People v. Hill (1998) 17 Cal.4th 800, 844, overruled on another ground in Price v. Superior Court (2001)
25 Cal.4th 1046, 1069, fn. 13.) We disagree. The single error in this matter regarding the admission of
Mota's booking statement cannot amount to cumulative error because, along with being the sole error in
this case, it was harmless.

IV.DISPOSITION

The judgments are affirmed.

Attachment

Filed 12/19/13

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICTDIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v.

GAMALIEL ELIZALDE, et al., Defendants and Appellants.

A132071

(Contra Costa County Super. Ct. No. 050809038)

BY THE COURT:

The opinion filed on November 19, 2013, is hereby modified as follows:

Regarding the Petition for Rehearing of defendant Gomez:

The parenthetical contained in the third line of the second paragraph on page two shall be revised to read
(Elizalde joins in this argument). The parenthetical on the eleventh line of the second paragraph on
page two shall be revised to read (Elizalde joins in this argument).

These modifications do not effect a change in the judgment.

Defendant Gomez's Petition for Rehearing is denied.

Regarding the Petition for Rehearing of defendant Mota:

On page 35 of the opinion in the second paragraph, line 4 First should be changed to In our view,.

The third paragraph beginning with The People should be deleted.

These modifications do not effect a change in the judgment.

Defendant Mota's Petition for Rehearing is denied.

Regarding the Petition for Rehearing of defendant Elizalde:

On page 65 of the opinion, subsection II.M. should be deleted and replaced with the following paragraph:

Elizalde argues that counsel was deficient for failing to seek redaction of Mota's mother's statement Uh,
my god, but [Elizalde] says that you shouldyou should say no, no, no However, this evidence was
admissible under the party admission exception for Elizalde's statement and as an excited utterance by
Mota's mother. Therefore, any objection would have been unavailing and, thus, the failure to object did
not constitute ineffective assistance of counsel. (People v. Frye (1998) 18 Cal.4th 894, 952, overruled on
other grounds by People v. Doolin (2009 45 Cal.4th 390, 421, fn.22.)

This modification does not effect a change in the judgment.

Defendant Elizalde's Petition for Rehearing is denied.

Haerle, Acting P.J.

Filed 12/19/13

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICTDIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v.

GAMALIEL ELIZALDE et al., Defendants and Appellants.

A132071

(Contra Costa County Super. Ct. No. 050809038)

BY THE COURT:

The opinion in the above-entitled matter filed on November 19, 2013, was not certified for publication in
the Official Reports. For good cause it now appears that the opinion should be published in the Official
Reports with the exception of parts III A through F and H through Q and it is now so ordered.

Haerle, Acting P.J.

Trial Court: Superior Court of Contra Costa County

Trial Judge: Hon. John Kennedy

Attorney for Appellant Gamaliel Elizalde, Solomon Wollack By Appointment of the Court of Appeal under
the First District Appellate Project Independent Case System

Attorney for Appellant Jose Mota, Stephen B. Bedrick By Appointment of the Court of Appeal under the
First District Appellate Project Independent Case System

Attorney for Appellant Javier Gomez, John Ward By Appointment of the Court of Appeal under the First
District Appellate Project Independent Case System

Attorneys for Respondent The People, Kamala D. Harris, Attorney General, Dane R. Gillette, Chief
Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Rene A. Chacon,
Supervising Deputy Attorney General, David M. Baskind, Deputy Attorney General

FOOTNOTES

1. Because Gomez confessed to one of the murders and implicated Mota, the court ordered a single trial
with two juries: one jury for Gomez and the second jury for Mota and Elizalde.

2. Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

3. As one of the prosecution witnesses explained, Varrio Frontero Loco just stands for it's a hood, you
know, no matter from where country you are from, you are in the hood.

4. Preceding this gathering, there had been altercations between members of Varrio Frontero Loco and
another Sureo gang called Richmond Sur Trace as well as with rival Norteo gang members.

5. We identify the witnesses, victims, defendants and other participants in this trial by their full names
rather than their gang nicknames. Where necessary for clarification, we will indicate the full name of
any person identified in testimony solely by his gang nickname.

6. Much of the evidence regarding this incident came from an interview between Solomon and the
police.

7. During a search of Gomez's home, the police collected evidence of Gomez's gang membershipfour
CD cases with Sureo-type titles on them, six individual CDs with Sureo-type titles, [a]nother CD
again, with Sureo-type titles, [t]wo blue bandanas.

8. Menendez had found this gun earlier, but he gave it to Mota when Mota told him that he (Menendez)
couldn't shoot it and might as well just give it to him

9. Menendez defined mugging as like he look hellabad at him.

10. Of the witnesses who provided significant testimony regarding the workings of the Varrio Frontero
Loco and Elizalde and Mota's positions and participation in the gang, Sanchez was the only one the court
concluded was an accomplice as a matter of law. Accordingly, the jury was instructed to view his
testimony with caution.

11. Sanchez explained that OG meant [j]ust like an old Cadillac, like an older guy, just the one who is
like forties, thirties, forties. You get to be an OG by going through a lot They went through their
stages, just like we went through our stages, we going through our stages [] [T]hey know more stuff
than we do. They got more opportunities in their brain.

12. The trial court gave the jury several instructions on proximate cause. It instructed the jury
pursuant to CALJIC No. 3.41 as follows: There may be more than one cause of death of Rico McIntosh.
When the conduct of two or more persons contributes concurrently as a cause of the death, the conduct of
each is a cause of the death if that conduct was also a substantial factor contributing to the result. A
cause is concurrent if it was operative at the moment of the death and acted with another cause to produce
the death. If you find that a defendant's conduct was a cause of death to another person, then it is no
defense that the conduct of some other person, even the deceased person, contributed to the death. It is
not a defense to a criminal charge that the deceased or some other person was guilty of negligence, which
was a contributory cause of the death involved in the case. Where the original injury is a cause of the
death, the fact that the immediate cause of death was the medical or surgical treatment administered or
that the treatment was a factor contributing to the cause of death will not relieve the person who inflicted
the original injury from responsibility. Where, however, the original injury is not a cause of the death
and the death was caused by medical or surgical treatment or some other cause, then the defendant is not
guilty of the unlawful homicide [] If a person unlawfully inflicts a physical injury upon another person
and that injury is a cause of the latter's death, that conduct constitutes an unlawful homicide even though
the injury inflicted was not the only cause of death. Or, moreover, that conduct constitutes unlawful
homicide, even if; [] One the person injured had been already weakened by disease, injury, physical
condition or other cause; [] Or, two, it is probable that a person in sound physical condition injured in
the same way would not have died from the injury; [] Or, three, it is probable that the injury only
hastened the death of the injured person; [] Or, four, the injured person would have died soon thereafter
from another cause or other causes.

13. Although Gomez cites People v. Roberts (1992) 2 Cal.4th 271 in support of his argument, this case
actually undermines his point. In Roberts, defense counsel requested a pinpoint instruction to the effect
that if the medical care [the victim] received after the assault was so inadequate that it amounted to the
sole cause of his death, then he was not the proximate cause of Gardner's killing and was not liable for it.
(Id. at p. 311.) The court's refusal to give this instruction was upheld because, as here, the record is
devoid of any evidence of grossly improper treatment The jury need not be instructed on a theory for
which no evidence has been presented. [Citation.] (Id. at pp. 312 313.)

14. All further statutory references are to the Penal Code, unless otherwise noted.

15. The People correctly point out that Elizalde has waived any objection to the trial court's ruling that
Menendez, Ruelas, Sanchez, and Valencia were not accomplices as a matter of law. Elizalde told the
court that he would rather leave it [the determination of whether these witnesses were accomplices] up to
the jury Nevertheless, we consider this issue because it has also been raised by Mota.

16. The trial court specifically found that Menendez's version of events that when he first shot himself
that is because he was grabbing the gun out of the hands of whoever was holding it to prevent him from
shooting someone. On the second occasion he didn't know that anyone had the gun until Mr. Gomez
pulled it out and started shooting. [] So my view is if the jury accepts Mr. Menendez's version of events,
it is not as a matter of law that he is an accomplice. That is a factual dispute the jury must decide. []
And I am essentially finding the same thing as to all of the ones I listed in the instruction saying that the
defense has the burden of proving it by a preponderance.

17. The court correctly summarized that standard as requiring an inquiry into whether the defendant
has shown based on the totality of the relevant facts that those facts give rise to an inference of
discriminatory purpose or whether the evidence is sufficient to permit the trial judge to draw an inference
that discrimination has occurred.

18. Although we conclude that, because the trial court correctly found that no prima facie case had been
shown, the prosecutor's explanation of his rationale for excluding Juror No. 5 is not relevant to the
question of whether there a prima facie case has been made, we nevertheless include this information in
order to discuss that issue.

19. Defendants correctly argue that their burden of making out a prima facie case can be met even as to
a single peremptory challenge to an AfricanAmerican juror. (People v. Thomas (2011) 51 Cal.4th 449,
474.) However, although the People argue to the contrary, the trial court did not base its conclusion that
no prima facie case was shown on the fact that the prosecutor only excused one AfricanAmerican juror.
In any event, our review of the record indicates that substantial evidence supports the trial court's
conclusion.

20. The prosecutor's decision to put these reasons on the record, following the trial court's decision
regarding the prima facie case issue does not alter this procedure.

21. Deputy Gonzalez did not testify.

22. Generally, when an arrestee identified himself as a gang member, the deputy would write a
classification incident detail report, which would then be forwarded to a supervisor, who would forward
the report to the appropriate people.

23. It was common for the arresting agency (in this case, the San Pablo Police to bring with them
booking paperwork with the charges they are booking the inmate for.

24. The court also noted that [t]he latter portion of this definition focuses primarily upon the
perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the
Miranda safeguards were designed to vest a suspect in custody with an added measure of protection
against coercive police practices, without regard to objective proof of the underlying intent of the police.
(Innis, supra, 446 U.S. at p. 301.)

25. Although the United States Supreme Court considered this issue for the first time in Muniz, it noted
that a number of federal courts had previously found that routine biographical questions fell outside the
scope of Miranda. These cases were United States v. GlenArchila (11th Cir.1982) 677 F.2d 809, 815
816 (home address); United States v. Avery (6th Cir.1983) 717 F.2d 1020, 10241025 (subjects such as
defendant's date of birth and address in order to complete an identification form which did not relate,
even tangentially, to criminal activity) and United States v. MataAbundiz (9th Cir.1983) 717 F.2d 1277
(background questions not asked during routine booking procedure and directly related to an element of
crime the interrogating officer suspected of defendant did not fall within routine booking exception).

26. Similarly, the court in United States v. Willock (D.Md.2010) 682 F.Supp.2d 512, 528529, observed
that [e]liciting information from an inmate about his gang affiliation solely for prison administrative
purposes does not implicate Miranda. It is only when such information is used against the inmate in a
prosecution that Miranda warnings are required. (Id. at p. 533, fn. 26.)

27. In a similar case, United States v. Williams (D.D.C.2012) 878 F.Supp.2d 190, 210, the court found
that a question that related directly to [the defendant's] connection with evidence of criminal activity
did not fall within the booking exception, even if the police may not have been fully aware of the
criminal activity of which the defendant was suspected.

28. The trial court specifically found that [t]here was no threat that if Mr. Mota didn't answer the
questions, that he would be housed with Norteos. But there was no need to make this threat. It was a
fact that if Mota did not answer this question he would be housed with Norteos. As the court found,
Mr. Mota would have every reason to make sure that the deputies knew to house him with Sureos. It
would be in Mr. Mota's wholly personal interest in self-preservation that he be classified correctly. And
it would be extreme danger to his life if he were not classified correctly and housed with other Sureos.
[] So my view is that Mr. Mota would have wanted the deputies to know that he was a Sureo so his life
would not be imperiled. And I believe he willingly and voluntarily answered the questions for that
reason.

29. The Fonseca court noted that the cases finding it was error to give this instruction in a trial in which
an unjoined coperpetrator testified involved earlier versions of CALJIC No. 2.11.5. (Fonseca, supra, 105
Cal.App.4th at p. 548.) In addition, the Fonseca court noted that even when there was a finding of error
as to the earlier version of CALJIC NO. 2.11.5, in every case where the jury receives all otherwise
appropriate general instructions regarding witness credibility, there can be no prejudice from jury
instruction pursuant to CALJIC No. 2.11.5. In other words, the potentially prejudicial effect of this
instruction in the context of the testifying unjoined coperpetrator lies not in the instruction itself, but in
the rather remote possibility that the trial court would fail to give otherwise pertinent and required
instructions on the issue of witness credibility. (1127; see also CJER Mandatory Criminal Jury
Instructions Handbook (CJER, 11th ed.2002) 2.4, 2.96, pp. 13, 76.) There is no error in giving
CALJIC No. 2.11.5 so long as a reasonable juror, considering the whole of his or her charge, would
understand that evidence of criminal activity by a witness not being prosecuted in the current trial should
be considered in assessing the witness's credibility. [Citation.] (Fonseca, supra, 105 Cal.App.4th at pp.
549550.) Defendant does not argue that the trial court failed to give these otherwise pertinent and
required instructions on the issue of witness credibility.

30. The italicized words to which the court referred were that the jury not discuss or give any
consideration as to why the unjoined coperpetrator was not being prosecuted in the trial. (Fonseca,
supra, 105 Cal.App.4th at p. 548.)

31. The court ruled that an admission Mota made after the attack to the effect that he had done the
beatings and that he was still down on Sureos in the sense that he could still be housed with Sureos
was not admissible because it was not preceded with Miranda warnings.

32. Sanchez testified without objection before the court's ruling on this issue. Any claim of error with
regard to the admission of his testimony has, therefore, been waived. In anticipation of an ineffective
assistance of counsel argument, we nevertheless consider whether Sanchez's testimony, which was similar
to that of Deputy Garcia, was admissible.

33. Although the fight occurred after the charged crimes, post-crime evidence may constitute
circumstantial evidence of a defendant's intent at the time the charged crimes were committed. (People
v. Johnson (1993) 6 Cal.4th 1, 36, overruled on another ground in People v. Rogers (2006) 39 Cal.4th 826,
879 [intent to steal can be proven circumstantially by post-crime actions]; People v. Abilez (2007) 41
Cal.4th 472, 508 [same].)

34. Elizalde also contends that the only evidence supporting his convictions is the uncorroborated
testimony of accomplice witnesses. As we have previously held, four of the witnesses who testified
regarding Elizalde's participation in a conspiracy that led to the murders of Centron, Perez and McIntosh
were not, in fact, accomplices as a matter of law. Moreover, viewed in a light most favorable to the
verdicts, the jury could have easily found that Valencia, Menendez, Cervantes and Ruelas were not
accomplices and, thus, no corroboration was required. Finally, even if these witnesses were in fact
accomplices, their testimony was adequately corroborated.

35. The court did indeed give the jury limiting instructions regarding this evidence. After the two
officers who searched Elizalde's house testified, the court instructed the jury that their testimony
regarding Elizalde's possession of methamphetamine for sale was admissible only with regard to the gang
count and gang enhancements. The court warned the jury that the evidence was not admissible to
suggest the Mr. Elizalde has a bad character or a propensity to commit crimes, buy only on the predicate
act elements of the gang charge and the gang enhancements At the end of the trial, the court instructed
the jury on the use of evidence that was admitted for a limited purpose (CALJIC No. 2.09) and evidence of
other crimes (CALJIC No. 2.50).

FOOTNOTE. Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified
for publication with the exception of parts III A through F and H through Q.

Haerle, Acting P.J.

EN BANC
G.R. No. L-10126 October 22, 1957

SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA,
OSCAR and ALFREDO BATACLAN, represented by their Natural guardian, SALUD VILLANUEVA
VDA. DE BATACLAN, plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.

Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-appellants.

Fortunato Jose for defendant and appellant.

MONTEMAYOR, J.:

Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina Transportation, operated by
its owner defendant Mariano Medina under a certificate of public convenience, left the town of
Amadeo, Cavite, on its way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There
were about eighteen passengers, including the driver and conductor. Among the passengers were
Juan Bataclan, seated beside and to the right of the driver, Felipe Lara, sated to the right of
Bataclan, another passenger apparently from the Visayan Islands whom the witnesses just called
Visaya, apparently not knowing his name, seated in the left side of the driver, and a woman named
Natalia Villanueva, seated just behind the four last mentioned. At about 2:00 o'clock that same
morning, while the bus was running within the jurisdiction of Imus, Cavite, one of the front tires burst
and the vehicle began to zig-zag until it fell into a canal or ditch on the right side of the road and
turned turtle. Some of the passengers managed to leave the bus the best way they could, others had
to be helped or pulled out, while the three passengers seated beside the driver, named Bataclan,
Lara and the Visayan and the woman behind them named Natalia Villanueva, could not get out of
the overturned bus. Some of the passengers, after they had clambered up to the road, heard groans
and moans from inside the bus, particularly, shouts for help from Bataclan and Lara, who said they
could not get out of the bus. There is nothing in the evidence to show whether or not the passengers
already free from the wreck, including the driver and the conductor, made any attempt to pull out or
extricate and rescue the four passengers trapped inside the vehicle, but calls or shouts for help were
made to the houses in the neighborhood. After half an hour, came about ten men, one of them
carrying a lighted torch made of bamboo with a wick on one end, evidently fueled with petroleum.
These men presumably approach the overturned bus, and almost immediately, a fierce fire started,
burning and all but consuming the bus, including the four passengers trapped inside it. It would
appear that as the bus overturned, gasoline began to leak and escape from the gasoline tank on the
side of the chassis, spreading over and permeating the body of the bus and the ground under and
around it, and that the lighted torch brought by one of the men who answered the call for help set it
on fire.

That same day, the charred bodies of the four deemed passengers inside the bus were removed and
duly identified that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her
name and in behalf of her five minor children, brought the present suit to recover from Mariano
Medina compensatory, moral, and exemplary damages and attorney's fees in the total amount of
P87,150. After trial, the Court of First Instance of Cavite awarded P1,000 to the plaintiffs plus P600
as attorney's fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City
for sale and which was lost in the fire. The plaintiffs and the defendants appealed the decision to the
Court of Appeals, but the latter endorsed the appeal to us because of the value involved in the claim
in the complaint.
Our new Civil Code amply provides for the responsibility of common carrier to its passengers and
their goods. For purposes of reference, we are reproducing the pertinent codal provisions:

ART. 1733. Common carriers, from the nature of their business and for reasons of public
policy, are bound to observe extraordinary diligence in the vigilance over the goods and for
the safety of the passengers transported by them, according to all the circumstances of each
case.

Such extraordinary diligence in the vigilance over the goods is further expressed in articles
1734, 1735, and 1745, Nos. 5, 6, and 7, while the extra ordinary diligence for the safety of
the passengers is further set forth in articles 1755 and 1756.

ART. 1755. A common carrier is bound to carry the passengers safely as far as human care
and foresight can provide, using the utmost diligence of very cautious persons, with a due
regard for all the circumstances.

ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to
have been at fault or to have acted negligently, unless they prove that they observed
extraordinary diligence as prescribed in articles 1733 and 1755

ART. 1759. Common carriers are liable for the death of or injuries to passengers through the
negligence or willful acts of the former's employees, although such employees may have
acted beyond the scope of their authority or in violation of the order of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised all the
diligence of a good father of a family in the selection and supervision of their employees.

ART. 1763. A common carrier responsible for injuries suffered by a passenger on account of
the willful acts or negligence of other passengers or of strangers, if the common carrier's
employees through the exercise of the diligence of a good father of a family could have
prevented or stopped the act or omission.

We agree with the trial court that the case involves a breach of contract of transportation for hire, the
Medina Transportation having undertaken to carry Bataclan safely to his destination, Pasay City. We
also agree with the trial court that there was negligence on the part of the defendant, through his
agent, the driver Saylon. There is evidence to show that at the time of the blow out, the bus was
speeding, as testified to by one of the passengers, and as shown by the fact that according to the
testimony of the witnesses, including that of the defense, from the point where one of the front tires
burst up to the canal where the bus overturned after zig-zaging, there was a distance of about 150
meters. The chauffeur, after the blow-out, must have applied the brakes in order to stop the bus, but
because of the velocity at which the bus must have been running, its momentum carried it over a
distance of 150 meters before it fell into the canal and turned turtle.

There is no question that under the circumstances, the defendant carrier is liable. The only question
is to what degree. The trial court was of the opinion that the proximate cause of the death of
Bataclan was not the overturning of the bus, but rather, the fire that burned the bus, including himself
and his co-passengers who were unable to leave it; that at the time the fire started, Bataclan, though
he must have suffered physical injuries, perhaps serious, was still alive, and so damages were
awarded, not for his death, but for the physical injuries suffered by him. We disagree. A satisfactory
definition of proximate cause is found in Volume 38, pages 695-696 of American jurisprudence, cited
by plaintiffs-appellants in their brief. It is as follows:

. . . 'that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have
occurred.' And more comprehensively, 'the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in motion, all constituting a
natural and continuous chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately effecting the injury as a
natural and probable result of the cause which first acted, under such circumstances that the
person responsible for the first event should, as an ordinary prudent and intelligent person,
have reasonable ground to expect at the moment of his act or default that an injury to some
person might probably result therefrom.

It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely
causing him physical injuries, if through some event, unexpected and extraordinary, the overturned
bus is set on fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire, and
the passenger is burned to death, one might still contend that the proximate cause of his death was
the fire and not the overturning of the vehicle. But in the present case under the circumstances
obtaining in the same, we do not hesitate to hold that the proximate cause was the overturning of the
bus, this for the reason that when the vehicle turned not only on its side but completely on its back,
the leaking of the gasoline from the tank was not unnatural or unexpected; that the coming of the
men with a lighted torch was in response to the call for help, made not only by the passengers, but
most probably, by the driver and the conductor themselves, and that because it was dark (about 2:30
in the morning), the rescuers had to carry a light with them, and coming as they did from a rural area
where lanterns and flashlights were not available; and what was more natural than that said rescuers
should innocently approach the vehicle to extend the aid and effect the rescue requested from them.
In other words, the coming of the men with a torch was to be expected and was a natural sequence
of the overturning of the bus, the trapping of some of its passengers and the call for outside help.
What is more, the burning of the bus can also in part be attributed to the negligence of the carrier,
through is driver and its conductor. According to the witness, the driver and the conductor were on
the road walking back and forth. They, or at least, the driver should and must have known that in the
position in which the overturned bus was, gasoline could and must have leaked from the gasoline
tank and soaked the area in and around the bus, this aside from the fact that gasoline when spilled,
specially over a large area, can be smelt and directed even from a distance, and yet neither the
driver nor the conductor would appear to have cautioned or taken steps to warn the rescuers not to
bring the lighted torch too near the bus. Said negligence on the part of the agents of the carrier come
under the codal provisions above-reproduced, particularly, Articles 1733, 1759 and 1763.

As regard the damages to which plaintiffs are entitled, considering the earning capacity of the
deceased, as well as the other elements entering into a damage award, we are satisfied that the
amount of SIX THOUSAND (P6,000) PESOS would constitute satisfactory compensation, this to
include compensatory, moral, and other damages. We also believe that plaintiffs are entitled to
attorney's fees, and assessing the legal services rendered by plaintiffs' attorneys not only in the trial
court, but also in the course of the appeal, and not losing sight of the able briefs prepared by them,
the attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS for the loss of
merchandise carried by the deceased in the bus, is adequate and will not be disturbed.
There is one phase of this case which disturbs if it does not shock us. According to the evidence,
one of the passengers who, because of the injuries suffered by her, was hospitalized, and while in
the hospital, she was visited by the defendant Mariano Medina, and in the course of his visit, she
overheard him speaking to one of his bus inspectors, telling said inspector to have the tires of the
bus changed immediately because they were already old, and that as a matter of fact, he had been
telling the driver to change the said tires, but that the driver did not follow his instructions. If this be
true, it goes to prove that the driver had not been diligent and had not taken the necessary
precautions to insure the safety of his passengers. Had he changed the tires, specially those in front,
with new ones, as he had been instructed to do, probably, despite his speeding, as we have already
stated, the blow out would not have occurred. All in all, there is reason to believe that the driver
operated and drove his vehicle negligently, resulting in the death of four of his passengers, physical
injuries to others, and the complete loss and destruction of their goods, and yet the criminal case
against him, on motion of the fiscal and with his consent, was provisionally dismissed, because
according to the fiscal, the witnesses on whose testimony he was banking to support the complaint,
either failed or appear or were reluctant to testify. But the record of the case before us shows the
several witnesses, passengers, in that bus, willingly and unhesitatingly testified in court to the effect
of the said driver was negligent. In the public interest the prosecution of said erring driver should be
pursued, this, not only as a matter of justice, but for the promotion of the safety of passengers on
public utility buses. Let a copy of this decision be furnished the Department of Justice and the
Provincial Fiscal of Cavite.

In view of the foregoing, with the modification that the damages awarded by the trial court are
increased from ONE THOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from
SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan and for the
attorney's fees, respectively, the decision appealed is from hereby affirmed, with costs.

Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L.,
Endencia, and Felix, JJ., concur.

FIRST DIVISION

G.R. No. 83491 August 27, 1990

MA-AO SUGAR CENTRAL CO., INC. and GUILLERMO ARANETA, petitioners,

vs.
HON. COURT OF APPEALS and HERMINIA FAMOSO, respondents.

Jalandoni, Herrera, Del Castillo & Associates for petitioners.

Napoleon Corral for private respondent.

CRUZ, J.:

To say the least, the Court views with regret the adamant refusal of petitioner Ma-ao Sugar Central
to recompense the private respondent for the death of Julio Famoso, their main source of support,
who was killed in line of duty while in its employ. It is not only a matter of law but also of compassion
on which we are called upon to rule today. We shall state at the outset that on both counts the
petition must fail.

On March 22, 1980, Famoso was riding with a co-employee in the caboose or "carbonera" of
Plymouth No. 12, a cargo train of the petitioner, when the locomotive was suddenly derailed. He and
his companion jumped off to escape injury, but the train fell on its side, caught his legs by its wheels
and pinned him down. He was declared dead on the spot. 1

The claims for death and other benefits having been denied by the petitioner, the herein private
respondent filed suit in the Regional Trial Court of Bago City. Judge Marietta Hobilla-Alinio ruled in
her favor but deducted from the total damages awarded 25% thereof for the decedent's contributory
negligence and the total pension of P41,367.60 private respondent and her children would be
receiving from the SSS for the next five years. The dispositive portion of the decision read:

WHEREFORE, in view of the foregoing facts and circumstances present in this case,
the Court order, as it does hereby order the defendant Ma-ao Sugar Central thru its
Manager Mr. Guillermo Y. Araneta to pay plaintiff the following amount:

P30,000.00 for the death of plaintiff's husband, the late

Julio Famoso

P30,000.00 for actual, exemplary and moral damages

P10,000.00 loss of earnings for twenty (20) years

P3,000.00 funeral expenses

P73,000.00 Total Damages

Less: P18,250.00 25% for the deceased's contributory

negligence

Less: P41,367.60 pension plaintiff and her minor children would

be receiving for five (5) years from the SSS

Pl3,382.40

Plus: P3,000.00 Attorney's fees and cost of this suit

Pl6,382.40 Total amount payable to the plaintiff.

 SO ORDERED.

The widow appealed, claiming that the deductions were illegal. So did the petitioner, but on the
ground that it was not negligent and therefore not liable at all.

In its own decision, the Court of Appeals 2 sustained the rulings of the trial court except as to the
contributory negligence of the deceased and disallowed the deductions protested by the private
respondent. Thus, the respondent court declared:

WHEREFORE, the decision appealed from is MODIFIED by ordering the defendant-

appellant to pay the plaintiff-appellee the following amounts:

P30,000.00, for the death of Julio Famoso

P30,000.00, for actual, exemplary and moral damages

P10,000.00, for loss of earnings for twenty (20) years

P3,000.00, for funeral expenses

P3,000.00, for attorney's fees

P76,000.00 Total Amount

========

In this petition, the respondent court is faulted for finding the petitioner guilty of negligence
notwithstanding its defense of due diligence under Article 2176 of the Civil Code and for disallowing
the deductions made by the trial court.

Investigation of the accident revealed that the derailment of the locomotive was caused by
protruding rails which had come loose because they were not connected and fixed in place by fish
plates. Fish plates are described as strips of iron 8" to 12" long and 3 1/2" thick which are attached
to the rails by 4 bolts, two on each side, to keep the rails aligned. Although they could be removed
only with special equipment, the fish plates that should have kept the rails aligned could not be found
at the scene of the accident.

There is no question that the maintenance of the rails, for the purpose inter alia of preventing
derailments, was the responsibility of the petitioner, and that this responsibility was not discharged.
According to Jose Treyes, its own witness, who was in charge of the control and supervision of its
train operations, cases of derailment in the milling district were frequent and there were even times
when such derailments were reported every hour. 3 The petitioner should therefore have taken more
prudent steps to prevent such accidents instead of waiting until a life was finally lost because of its
negligence.

The argument that no one had been hurt before because of such derailments is of course not
acceptable. And neither are we impressed by the claim that the brakemen and the conductors were
required to report any defect in the condition of the railways and to fill out prescribed forms for the
purpose. For what is important is that the petitioner should act on these reports and not merely
receive and file them. The fact that it is not easy to detect if the fish plates are missing is no excuse
either. Indeed, it should stress all the more the need for the responsible employees of the petitioner
to make periodic checks and actually go down to the railroad tracks and see if the fish plates were in
place.

It is argued that the locomotive that was derailed was on its way back and that it had passed the
same rails earlier without accident. The suggestion is that the rails were properly aligned then, but
that does not necessarily mean they were still aligned afterwards. It is possible that the fish plates
were loosened and detached during its first trip and the rails were as a result already mis-aligned
during the return trip. But the Court feels that even this was unlikely, for, as earlier noted, the fish
plates were supposed to have been bolted to the rails and could be removed only with special tools.
The fact that the fish plates were not found later at the scene of the mishap may show they were
never there at all to begin with or had been removed long before.

At any rate, the absence of the fish plates whatever the cause or reason is by itself alone proof
of the negligence of the petitioner. Res ipsa loquitur. The doctrine was described recently in Layugan
v. Intermediate Appellate Court, 4 thus:

Where the thing which causes injury is shown to be under the management of the
defendant, and the accident is such as in the ordinary course of things does not
happen if those who have the management use proper care, it affords reasonable
evidence, in the absence of an explanation by the defendant, that the accident arose
from want of care.

The petitioner also disclaims liability on the ground of Article 2176 of the Civil Code, contending it
has exercised due diligence in the selection and supervision of its employees. The Court cannot
agree. The record shows it was in fact lax in requiring them to exercise the necessary vigilance in
maintaining the rails in good condition to prevent the derailments that sometimes happened "every
hour." Obviously, merely ordering the brakemen and conductors to fill out prescribed forms reporting
derailments-which reports have not been acted upon as shown by the hourly derailments is-not the
kind of supervision envisioned by the Civil Code.

We also do not see how the decedent can be held guilty of contributory negligence from the mere
fact that he was not at his assigned station when the train was derailed. That might have been a
violation of company rules but could not have directly contributed to his injury, as the petitioner
suggests. It is pure speculation to suppose that he would not have been injured if he had stayed in
the front car rather than at the back and that he had been killed because he chose to ride in the
caboose.

Contributory negligence has been defined as "the act or omission amounting to want of ordinary care
on the part of the person injured which, concurring with the defendant's negligence, is the proximate
cause of the
injury." 5 It has been held that "to hold a person as having contributed to his injuries, it must be shown that
he performed an act that brought about his injuries in disregard of warnings or signs of an impending
danger to health and body." 6 There is no showing that the caboose where Famoso was riding was a
dangerous place and that he recklessly dared to stay there despite warnings or signs of impending
danger.
The last point raised by the petitioner is easily resolved. Citing the case of Floresca v. Philex Mining
Corporation, 7it argues that the respondent court erred in disauthorizing the deduction from the total
damages awarded the private respondent of the amount of P41,367.60, representing the pension to be
received by the private respondent from the Social Security System for a period of five years. The
argument is that such deduction was quite proper because of Art. 173 of the Labor Code, as amended.
This article provides that any amount received by the heirs of a deceased employee from the Employees
Compensation Commission, whose funds are administered by the SSS, shall be exclusive of all other
amounts that may otherwise be claimed under the Civil Code and other pertinent laws.

The amount to be paid by the SSS represents the usual pension received by the heirs of a deceased
employee who was a member of the SSS at the time of his death and had regularly contributed his
premiums as required by the System. The pension is the benefit derivable from such contributions. It
does not represent the death benefits payable under the Workmen's Compensation Act to an
employee who dies as a result of a work-connected injury. Indeed, the certification from the
SSS 8 submitted by the petitioner is simply to the effect that:

TO WHOM IT MAY CONCERN:

This is to certify that Mrs. Herminia Vda. de Famoso is a recipient of a monthly

pension from the Social Security System arising from the death of her late husband,
Julio Famoso, an SSS member with SSS No. 07-018173-1.

This certification is issued to Ma-ao Sugar Central for whatever legal purpose it may
serve best.

Issued this 8th day of April 1983 in Bacolod City, Philippines.

GODOFREDO
S. SISON

Regional
Manager

By: (SGD.)
COSME Q.
BERMEO, JR.

Chief, Benefits
Branch

It does not indicate that the pension is to be taken from the funds of the ECC. The certification would
have said so if the pension represented the death benefits accruing to the heirs under the
Workmen's Compensation Act.

This conclusion is supported by the express provision of Art. 173 as amended, which categorically
states that:

Art. 173. Exclusiveness of liability. Unless otherwise provided, the liability of the
State Insurance Fund under this Title shall be exclusive and in place of all other
 liabilities of the employer to the employee, his dependents or anyone otherwise
entitled to receive damages on behalf of the employee or his dependents. The
payment of compensation under this Title shall not bar the recovery of benefits as
provided for in Section 699 of the Revised Administrative Code, Republic Act
Numbered Eleven hundred sixty-one, as amended, Commonwealth Act Numbered
One hundred eighty-six, as amended, Republic Act Numbered Six hundred ten, as
amended, Republic Act Numbered Forty-eight hundred sixty-four, as amended and
other laws whose benefits are administered by the System or by other agencies of
the government. (Emphasis supplied).

Rep. Act No. 1161, as amended, is the Social Security Law.

As observed by Justice J.B.L. Reyes in the case of Valencia v. Manila Yacht Club, 9 which is still
controlling:

. . . By their nature and purpose, the sickness or disability benefits to which a

member of the System may be entitled under the Social Security law (Rep. Act No.
1161, as amended by Rep. Acts Nos. 1792 and 2658) are not the same as the
compensation that may be claimed against the employer under the Workmen's
Compensation Act or the Civil Code, so that payment to the member employee of
social security benefits would not wipe out or extinguish the employer's liability for
the injury or illness contracted by his employee in the course of or during the
employment. It must be realized that, under the Workmen's Compensation Act (or the
Civil Code, in a proper case), the employer is required to compensate the employee
for the sickness or injury arising in the course of the employment because the
industry is supposed to be responsible therefore; whereas, under the Social Security
Act, payment is being made because the hazard specifically covered by the
membership, and for which the employee had put up his own money, had taken
place. As this Court had said:

. . . To deny payment of social security benefits because the death or

injury or confinement is compensable under the Workmen's
Compensation Act would be to deprive the employees members of
the System of the statutory benefits bought and paid for by them,
since they contributed their money to the general common fund out of
which benefits are paid. In other words, the benefits provided for in
the Workmen's Compensation Act accrues to the employees
concerned due to the hazards involved in their employment and is
made a burden on the employment itself However, social security
benefits are paid to the System's members, by reason of their
membership therein for which they contribute their money to a
general common fund . . . .

It may be added that whereas social security benefits are intended to

provide insurance or protection against the hazards or risks for which
they are established, e.g., disability, sickness, old age or death,
irrespective of whether they arose from or in the course of the
employment or not, the compensation receivable under the
Workmen's Compensation law is in the nature of indemnity for the
 injury or damage suffered by the employee or his dependents on
account of the employment. (Rural Transit Employees Asso. vs.
Bachrach Trans. Co., 21 SCRA 1263 [19671])

And according to Justice Jesus G. Barrera in Benguet Consolidated, Inc. v. Social Security
System:" 10

The philosophy underlying the Workmen's Compensation Act is to make the payment
of the benefits provided for therein as a responsibility of the industry, on the ground
that it is industry which should bear the resulting death or injury to employees
engaged in the said industry. On the other hand, social security sickness benefits are
not paid as a burden on the industry, but are paid to the members of the System as a
matter of right, whenever the hazards provided for in the law occurs. To deny
payment of social security benefits because the death or injury or confinement is
compensable under the Workmen's Compensation Act would be to deprive the
employees-members of the System of the statutory benefits bought and paid for by
them, since they contribute their money to the general common fund out of which
benefits are paid. In other words, the benefits provided for in the Workmen's
Compensation Act accrues to the employees concerned, due to the hazards involved
in their employment and is made a burden on the employment itself However, social
security benefits are paid to the System's members, by reason of their membership
therein for which they contributed their money to a general common fund.

Famoso's widow and nine minor children have since his death sought to recover the just
recompense they need for their support. Instead of lending a sympathetic hand, the petitioner has
sought to frustrate their efforts and has even come to this Court to seek our assistance in defeating
their claim. That relief-and we are happy to say this must be withheld.

WHEREFORE, the appealed decision is AFFIRMED in toto. The petition is DENIED, with costs
against the petitioner.

SO ORDERED.

Narvasa (Chairman), Gancayco, Grio-Aquino and Medialdea, JJ., concur.

G.R. No. 104408 June 21, 1993

METRO MANILA TRANSIT CORPORATION, petitioner,

vs.
THE COURT OF APPEALS AND NENITA CUSTODIA, respondents.

Office of the Government Corporate Counsel for petitioner.

Renato P. Decena and Restituto Abjero for private respondent.

REGALADO, J.:
This appeal calls for a review of the legal validity and sufficiency of petitioner's invocation of due
diligence in the selection and supervision of employees as its defense against liability resulting from
a vehicular collision. With the facility by which such a defense can be contrived and our country
having reputedly the highest traffic accident rate in its geographical region, it is indeed high time for
us to once again address this matter which poses not only a litigation issue for the courts but affects
the very safety of our streets.

The facts of the case at bar are recounted for us by respondent court, thus

At about six o'clock in the morning of August 28, 1979, plaintiff-appellant Nenita
Custodio boarded as a paying passenger a public utility jeepney with plate No. D7
305 PUJ Pilipinas 1979, then driven by defendant Agudo Calebag and owned by his
co-defendant Victorino Lamayo, bound for her work at Dynetics Incorporated located
in Bicutan, Taguig, Metro Manila, where she then worked as a machine operator
earning P16.25 a day. While the passenger jeepney was travelling at (a) fast clip
along DBP Avenue, Bicutan, Taguig, Metro Manila another fast moving vehicle, a
Metro Manila Transit Corp. (MMTC, for short) bus bearing plate no. 3Z 307 PUB
(Philippines) "79 driven by defendant Godofredo C. Leonardo was negotiating
Honeydew Road, Bicutan, Taguig, Metro Manila bound for its terminal at Bicutan. As
both vehicles approached the intersection of DBP Avenue and Honeydew Road they
failed to slow down and slacken their speed; neither did they blow their horns to warn
approaching vehicles. As a consequence, a collision between them occurred, the
passenger jeepney ramming the left side portion of the MMTC bus. The collision
impact caused plaintiff-appellant Nenita Custodio to hit the front windshield of the
passenger jeepney and (she) was thrown out therefrom, falling onto the pavement
unconscious with serious physical injuries. She was brought to the Medical City
Hospital where she regained consciousness only after one (1) week. Thereat, she
was confined for twenty-four (24) days, and as a consequence, she was unable to
work for three and one half months (31/2). 1

A complaint for damages 2 was filed by herein private respondent, who being then a minor was assisted
by her parents, against all of therein named defendants following their refusal to pay the expenses
incurred by the former as a result of the collision.

Said defendants denied all the material allegations in the complaint and pointed an accusing finger
at each other as being the party at fault. Further, herein petitioner Metro Manila Transit Corporation
(MMTC), a government-owned corporation and one of the defendants in the court a quo, along with
its driver, Godofredo Leonardo, contrarily averred in its answer with cross-claim and
counterclaim 3 that the MMTC bus was driven in a prudent and careful manner by driver Leonardo and
that it was the passenger jeepney which was driven recklessly considering that it hit the left middle portion
of the MMTC bus, and that it was defendant Lamayo, the owner of the jeepney and employer of driver
Calebag, who failed to exercise due diligence in the selection and supervision of employees and should
thus be held solidarily liable for damages caused to the MMTC bus through the fault and negligence of its
employees.

Defendant Victorino Lamayo, for his part, alleged in his answer with cross-claim and
counterclaim 4 that the damages suffered by therein plaintiff should be borne by defendants MMTC and
its driver, Godofredo Leonardo, because the latter's negligence was the sole and proximate cause of the
accident and that MMTC failed to exercise due diligence in the selection and supervision of its
employees.
By order of the trial court, defendant Calebag was declared in default for failure to file an
answer. 5 Thereafter, as no amicable settlement was reached during the pre-trial conference, 6 trial on the
merits ensued with the opposing parties presenting their respective witnesses and documentary
evidence.

Herein private respondent Nenita Custodia, along with her parents, were presented as witnesses for
the prosecution. In addition, Dr. Edgardo del Mundo, the attending physician, testified on the cause,
nature and extent of the injuries she sustained as a result of the vehicular mishap. 7 On the other
hand, defendant MMTC presented as witnesses Godofredo Leonardo, Christian Bautista and Milagros
Garbo. Defendant Lamayo, however, failed to present any witness.

Milagros Garbo testified that, as a training officer of MMTC, she was in charge of the selection of the
company's bus drivers, conducting for this purpose a series of training programs and examinations.
According to her, new applicants for job openings at MMTC are preliminarily required to submit
certain documents such as National Bureau of Investigation (NBI) clearance, birth or residence
certificate, ID pictures, certificate or diploma of highest educational attainment, professional driver's
license, and work experience certification. Re-entry applicants, aside from the foregoing
requirements, are additionally supposed to submit company clearance for shortages and damages
and revenue performance for the preceding year. Upon satisfactory compliance with said requisites,
applicants are recommended for and subjected to a Preliminary interview, followed by a record
check to find out whether they are included in the list of undesirable employees given by other
companies.

Thereafter, she continued, if an applicant is found to be acceptable, a final interview by the Chief
Supervisor is scheduled and followed by a training program which consists of seminars and actual
driving and Psycho-physical tests and X-ray examinations. The seminars, which last for a total of
eighteen (18) days, include familiarization with assigned routes, existing traffic rules and regulations,
Constabulary Highway Patrol Group (CHPG) seminar on defensive driving, preventive maintenance,
proper vehicle handling, interpersonal relationship ,and administrative rules on discipline and on-the-
job training. Upon completion of all the seminars and tests, a final clearance is issued, an
employment contract is executed and the driver is ready to report for duty. 8

MMTC's Transport Supervisor, Christian Bautista, testified that it was his duty to monitor the daily
operation of buses in the field, to countercheck the dispatcher on duty prior to the operation of the
buses in the morning and to see to it that the bus crew follow written guidelines of the company,
which include seeing to it that its employees are in proper uniform, briefed in traffic rules and
regulations before the start of duty, fit to drive and, in general, follow other rules and regulations of
the Bureau of Land Transportation as well as of the company. 9

The reorganized trial court, in its decision of August 1, 1989, 10 found both drivers of the colliding
vehicles concurrently negligent for non-observance of appropriate traffic rules and regulations and for
failure to take the usual precautions when approaching an intersection. As joint tortfeasors, both drivers,
as well as defendant Lamayo, were held solidarily liable for damages sustained by plaintiff Custodio.
Defendant MMTC, on the bases of the evidence presented was, however, absolved from liability for the
accident on the ground that it was not only careful and diligent in choosing and screening applicants for
job openings but was also strict and diligent in supervising its employees by seeing to it that its
employees were in proper uniforms, briefed in traffic rules and regulations before the start of duty, and
that it checked its employees to determine whether or not they were positive for alcohol and followed
other rules and regulations and guidelines of the Bureau of Land Transportation and of the company.
The trial court accordingly ruled:

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered dismissing

the complaint against the Metro Manila Transit Corporation and ordering defendants
Agudo P. Calebag, Victorino Lamayo and Godofredo C. Leonardo to pay plaintiffs,
jointly and severally, the following:

a) the sum of P10,000.00 by way of medical expenses;

b) the sum of P5,000.00 by way of expenses of litigation;

c) the sum of P15,000.00 by way of moral damages;

d) the sum of P2,672.00 by way of loss of earnings;

e) the sum of P5,000.00 by way of exemplary damages;

f) the sum of P6,000.00 by way of attorney's fees; and

g) costs of suit.

SO ORDERED. 11

Plaintiff's motion to have that portion of the trial court's decision absolving MMTC from liability
reconsidered 12having been denied for lack of merit, 13 an appeal was filed by her with respondent
appellate court. After consideration of the appropriate pleadings on appeal and finding the appeal
meritorious, the Court of Appeals modified the trial court's decision by holding MMTC solidarily liable with
the other defendants for the damages awarded by the trial court because of their concurrent negligence,
concluding that while there is no hard and fast rule as to what constitutes sufficient evidence to prove that
an employer has exercised the due diligence required of it in the selection and supervision of its
employees, based on the quantum of evidence adduced the said appellate court was not disposed to say
that MMTC had exercised the diligence required of a good father of a family in the selection and
supervision of its driver, Godofredo Leonardo. 14

The Court of Appeals was resolute in its conclusion and denied the motions for reconsideration of
appellee Custodio and appellant MMTC in a resolution dated February 17, 1982, 15 thus prompting
MMTC to file the instant petition invoking the review powers of this Court over the decision of the Court of
Appeals, raising as issues for resolution whether or not (1) the documentary evidence to support the
positive testimonies of witnesses Garbo and Bautista are still necessary; (2) the testimonies of witnesses
Garbo and Bautista may still be disturbed on appeal; and (3) the evidence presented during the trial with
respect to the proof of due diligence of petitioner MMTC in the selection and supervision of its employees,
particularly driver Leonardo, is sufficient.

Prefatorily, private respondent questions the timeliness of the filing of the petition at bar in view of
the procedural stricture that the timely perfection of an appeal is both a mandatory and jurisdictional
requirement. This is a legitimate concern on the part of private respondent and presents an
opportune occasion to once again clarify this point as there appears to be some confusion in the
application of the rules and interpretative rulings regarding the computation of reglementary periods
at this stage of the proceedings.
The records of this case reveal that the decision of respondent Court of Appeals, dated October 31,
1991, was received by MMTC on November 18, 1991 16 and it seasonably filed a motion for the
reconsideration thereof on November 28, 1991. 17 Said motion for reconsideration was denied by
respondent court in its resolution dated February 17, 1992, which in turn was received by MMTC on
March 9, 1992. 18 Therefore, it had, pursuant to Section 1, Rule 45 of the Rules of Court, fifteen (15) days
therefrom or up to March 24, 1992 within which to file its petition, for review on certiorari. Anticipating,
however, that it may not be able to file said petition before the lapse of the reglementary period therefor,
MMTC filed a motion on March 19, 1992 for an extension of thirty (30) days to file the present petition,
with proof of service of copies thereof to respondent court and the adverse parties. The Court granted
said motion, with the extended period to be counted from the expiration of the reglementary
period. 19 Consequently, private respondent had thirty (30) days from March 24, 1992 within which to file
its petition, or up to April 23, 1992, and the eventual filing of said petition on April 14, 1992 was well within
the period granted by the Court.

We digress to reiterate, in view of erroneous submissions that we continue to receive, that in the
case of a petition for review on certiorari from a decision rendered by the Court of Appeals, Section
1, Rule 45 of the Rules of Court, which has long since been clarified in Lacsamana vs. The Hon.
Second Special Cases Division of the Intermediate Appellate Court, et al., 20 allows the same to be
filed "within fifteen (15) days from notice of judgment or of the denial of the motion for reconsideration
filed in due time, and paying at the same time to the corresponding docket fee." In other words, in the
event a motion for reconsideration is filed and denied, the period of fifteen (15) days begins to run all over
again from notice of the denial resolution. Otherwise put, if a motion for reconsideration is filed, the
reglementary period within which to appeal the decision of the Court of Appeals to the Supreme Court is
reckoned from the date the party who intends to appeal received the order denying the motion for
reconsideration. 21 Furthermore, a motion for extension of time to file a petition for review may be filed with
this Court within said reglementary period, paying at the same time the corresponding docket fee.

1. The first two issues raised by petitioner shall be correlatively discussed in view of their
interrelation.

In its present petition, MMTC insists that the oral testimonies of its employees were presented as
witnesses in its behalf sufficiently prove, even without the presentation documentary evidence, that
driver Leonardo had complied with all the hiring and clearance requirements and had undergone all
trainings, tests and examinations preparatory to actual employment, and that said positive
testimonies spell out the rigid procedure for screening of job applicants and the supervision of its
employees in the field. It underscored the fact that it had indeed complied with the measure of
diligence in the selection and supervision of its employees as enunciated in Campo, et al. vs.
Camarote, et al. 22 requiring an employer, in the exercise of the diligence of a good father of a family, to
carefully examine the applicant for employment as to his qualifications, experience and record service,
and not merely be satisfied with the possession of a professional driver's license.

It goes on to say since the testimonies of these witnesses were allegedly neither discredited nor
impeached by the adverse party, they should be believed and not arbitrarily disregarded or rejected
nor disturbed on appeal. It assiduously argues that inasmuch as there is no law requiring that facts
alleged by petitioner be established by documentary evidence, the probative force and weight of
their testimonies should not be discredited, with the further note that the lower court having passed
upon the relevancy of the oral testimonies and considered the same as unrebutted, its consideration
should no longer be disturbed on appeal. 23
Private respondent, on the other hand, retorts that the factual findings of respondent court are
conclusive upon the High Court which cannot be burdened with the task of analyzing and weighing
the evidence all over again. 24

At this juncture, it suffices to note that factual findings of the trial court may be reversed by the Court
of Appeals, which is vested by law with the power to review both legal and factual issues, if on the
evidence of record, it appears that the trial court may have been mistaken 25 particularly in the
appreciation of evidence, which is within the domain of the Court of Appeals. 26 The general rule laid down
in a plethora of cases is that such findings of fact by the Court of Appeals are conclusive upon and
beyond the power of review of the Supreme Court. 27 However, it is now well-settled that while the findings
of fact of the Court of Appeals are entitled to great respect, and even finality at times, that rule is not
inflexible and is subject to well established exceptions, to wit: (1) when the conclusion is a finding
grounded entirely on speculation, surmises and conjectures; (2) when the inference made is manifestly
mistaken, absurd or impossible; (3) where there is grave abuse of discretion; (4) when the judgment is
based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of
Appeals, in making its findings, went beyond the issues of the case and the same are contrary to the
admissions of both appellant and appellee; (7) when the findings of the Court of Appeals are contrary to
those of the trial court; (8) when the findings of fact are conclusions without citation of specific evidence
on which they are based; (9) when the facts set forth in the petition, as well as in the petitioner's main and
reply briefs are not disputed by the respondents and (10) when the findings of fact of the Court of Appeals
are premised on the supposed absence of evidence and are contradicted by the evidence on record. 28

When as in this case, the findings of the Court of Appeals and the trial court are contrary to each
other, this court may scrutinize the evidence on record, 29 in order to arrive at a correct finding based
thereon. 30

A perusal of the same shows that since there is no dispute as to the finding of concurrent negligence
on the part of the defendant Calebag, the driver of the passenger jeepney, and co-defendant
Leonardo, the bus driver of petitioner MMTC, both of whom were solidarily held liable with defendant
Lamayo, the owner of the jeepney, we are spared the necessity of determining the sufficiency of
evidence establishing the fact of negligence. 31 The contrariety is in the findings of the two lower courts,
and which is the subject of this present controversy, with regard to the liability of MMTC as employer of
one the erring drivers.

The trial court, in absolving MMTC from liability ruled that

On the question as to whether defendant MMTC was successful in proving its

defense that indeed it had exercised the due diligence of a good father of a family in
the selection and supervision of defendant Leonardo, this Court finds that based on
the evidence presented during the trial, defendant MMTC was able to prove that it
was not only careful and diligent in choosing and screening applicants for job
openings but also strict (and) diligent in supervising its employees by seeing to it that
its employees were in proper uniforms, briefed in traffic rules and regulations before
the start of duty, checked employees to determine whether they were positive for
alcohol and followed other rules and regulations and guidelines of the Bureau of
Land Transportation as well as its company. Having successfully proven such
defense, defendant MMTC therefore, cannot be held liable for the accident.

Having reached this conclusion, the Court now, holds that defendant MMTC be
totally absolved from liability and that the complaint against it be dismissed. . . . 32
whereas respondent court was of the opinion that

It is surprising though that witness Milagros Garbo did not testify nor present any
evidence that defendant-appellee's driver, defendant Godofredo Leonardo has
complied with or has undergone all clearances and trainings she referred to. The
clearances, result of seminars and tests which Godofredo Leonardo submitted and
complied with, if any, were not presented in court despite the fact that they are
obviously in the possession and control of defendant-appellee. Instead, it resorted to
generalities. The Court has ruled that due diligence in (the) selection and supervision
of employee(s) are not proved by mere testimonies to the effect that its applicant has
complied with all the company requirements before one is admitted as an employee
but without proof thereof. . . .

On the part of Christian Bautista, the transport supervisor of defendant-appellee, he

testified that it is his duty to monitor the operation of buses in the field; to
countercheck the dispatchers' duty prior to the operation of the buses in the morning;
to see to it that bus crew follows written guidelines of the company (t.s.n., April 29,
1988, pp. 4-5), but when asked to present in court the alleged written guidelines of
the company he merely stated that he brought with him a "wrong document" and
defendant-appellee's counsel asked for reservation to present such written
guidelines in the next hearing but the same was (sic) never presented in court. 33

A thorough and scrupulous review of the records of this case reveals that the conclusion of
respondent Court of Appeals is more firmly grounded on jurisprudence and amply supported by the
evidence of record than that of the court below.

It is procedurally required for each party in a case to prove his own affirmative assertion by the
degree of evidence required by law. 34 In civil cases, the degree of evidence required of a party in order
to support his claim is preponderance of evidence, or that evidence adduced by one party which is more
conclusive and credible than that of the other party. It is, therefore, incumbent on the plaintiff who is
claiming a right to prove his case. Corollarily, defendant must likewise prove own allegation to buttress its
claim that it is not liable. 35

In fine, the party, whether plaintiff or defendant, who asserts the affirmative of the issue has the
burden of presenting at the trial such amount of evidence required by law to obtain a favorable
judgment. 36 It is entirely within each of the parties discretion, consonant with the theory of the case it or
he seeks to advance and subject to such procedural strategy followed thereby, to present all available
evidence at its or his disposal in the manner which may be deemed necessary and beneficial to prove its
or his position, provided only that the same shall measure up to the quantum of evidence required by law.
In making proof in its or his case, it is paramount that the best and most complete evidence be formally
entered. 37

Coming now to the case at bar, while there is no rule which requires that testimonial evidence, to
hold sway, must be corroborated by documentary evidence, or even subject evidence for that matter,
inasmuch as the witnesses' testimonies dwelt on mere generalities, we cannot consider the same as
sufficiently persuasive proof that there was observance of due diligence in the selection and
supervision of employees. 38 Petitioner's attempt to prove its diligentissimi patris familias in the selection
and supervision of employees through oral evidence must fail as it was unable to buttress the same with
any other evidence, object or documentary, which might obviate the apparent biased nature of the
testimony. 39
Our view that the evidence for petitioner MMTC falls short of the required evidentiary quantum as
would convincingly and undoubtedly prove its observance of the diligence of a good father of a
family has its precursor in the underlying rationale pronounced in the earlier case of Central Taxicab
Corp. vs. Ex-Meralco Employees Transportation Co., et al., 40 set amidst an almost identical factual
setting, where we held that:

. . . . This witness spoke of an "affidavit of experience" which a driver-applicant must

accomplish before he is employed by the company, a written "time schedule" for
each bus, and a record of the inspections and thorough checks pertaining to each
bus before it leaves the car barn; yet no attempt was ever made to present in
evidence any of these documents, despite the fact that they were obviously in the
possession and control of the defendant company.

xxx xxx xxx

Albert also testified that he kept records of the preliminary and final tests given him
as well as a record of the qualifications and experience of each of the drivers of the
company. It is rather strange, therefore, that he failed to produce in court the all
important record of Roberto, the driver involved in this case.

The failure of the defendant company to produce in court any "record" or other
documentary proof tending to establish that it had exercised all the diligence of a
good father of a family in the selection and supervision of its drivers and buses,
notwithstanding the calls therefor by both the trial court and the opposing counsel,
argues strongly against its pretensions.

We are fully aware that there is no hard-and-fast rule on the quantum of evidence
needed to prove due observance of all the diligence of a good father of a family as
would constitute a valid defense to the legal presumption of negligence on the part of
an employer or master whose employee has by his negligence, caused damage to
another. . . . (R)educing the testimony of Albert to its proper proportions, we do not
have enough trustworthy evidence left to go by. We are of the considered opinion,
therefore, that the believable evidence on the degree of care and diligence that has
been exercised in the selection and supervision of Roberto Leon y Salazar, is not
legally sufficient to overcome the presumption of negligence against the defendant
company.

Whether or not the diligence of a good father of a family has been observed by petitioner is a matter
of proof which under the circumstances in the case at bar has not been clearly established. It is not
felt by the Court that there is enough evidence on record as would overturn the presumption of
negligence, and for failure to submit all evidence within its control, assuming the putative existence
thereof, petitioner MMTC must suffer the consequences of its own inaction and indifference.

2. In any event, we do not find the evidence presented by petitioner sufficiently convincing to prove
the diligence of a good father of a family, which for an employer doctrinally translates into its
observance of due diligence in the selection and supervision of its employees but which mandate, to
use an oft-quoted phrase, is more often honored in the breach than in the observance.
Petitioner attempted to essay in detail the company's procedure for screening job applicants and
supervising its employees in the field, through the testimonies of Milagros Garbo, as its training
officer, and Christian Bautista, as its transport supervisor, both of whom naturally and expectedly
testified for MMTC. It then concluded with its sweeping pontifications that "thus, there is no doubt
that considering the nature of the business of petitioner, it would not let any applicant-drivers to be
(sic) admitted without undergoing the rigid selection and training process with the end (in) view of
protecting the public in general and its passengers in particular; . . . thus, there is no doubt that
applicant had fully complied with the said requirements otherwise Garbo should not have allowed
him to undertake the next set of requirements . . . and the training conducted consisting of seminars
and actual driving tests were satisfactory otherwise he should have not been allowed to drive the
subject vehicle. 41

These statements strike us as both presumptuous and in the nature of petitio principii, couched in
generalities and shorn of any supporting evidence to boost their verity. As earlier observed,
respondent court could not but express surprise, and thereby its incredulity, that witness Garbo
neither testified nor presented any evidence that driver Leonardo had complied with or had
undergone all the clearances and trainings she took pains to recite and enumerate. The supposed
clearances, results of seminars and tests which Leonardo allegedly submitted and complied with
were never presented in court despite the fact that, if true, then they were obviously in the
possession and control of petitioner. 42

The case at bar is clearly within the coverage of Article 2176 and 2177, in relation to Article 2180, of
the Civil Code provisions on quasi-delicts as all the elements thereof are present, to wit: (1)
damages suffered by the plaintiff, (2) fault or negligence of the defendant or some other person for
whose act he must respond, and (3) the connection of cause and effect between fault or negligence
of the defendant and the damages incurred by plaintiff. 43 It is to be noted that petitioner was originally
sued as employer of driver Leonardo under Article 2180, the pertinent parts of which provides that:

The obligation imposed by article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.

xxx xxx xxx

Employers shall be liable for damages caused by their employees and household
helpers acting within the scope of their assigned tasks, even though the former are
not engaged in any business or industry.

xxx xxx xxx

The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family to
prevent damage.

The basis of the employer's vicarious liability has been explained under this ratiocination:

The responsibility imposed by this article arises by virtue of a presumption juris

tantum of negligence on the part of the persons made responsible under the article,
derived from their failure to exercise due care and vigilance over the acts of
subordinates to prevent them from causing damage. Negligence is imputed to them
 by law, unless they prove the contrary. Thus, the last paragraph of the article says
that such responsibility ceases if is proved that the persons who might be held
responsible under it exercised the diligence of a good father of a family (diligentissimi
patris familias) to prevent damage. It is clear, therefore, that it is not representation,
nor interest, nor even the necessity of having somebody else answer for the
damages caused by the persons devoid of personality, but it is the non-performance
of certain duties of precaution and prudence imposed upon the persons who become
responsible by civil bond uniting the actor to them, which forms the foundation of
such responsibility. 44

The above rule is, of course, applicable only where there is an employer-employee relationship,
although it is not necessary that the employer be engaged in business or industry. Whether or not
engaged in any business or industry, the employer under Article 2180 is liable for torts committed by
his employees within the scope of their assigned tasks. But, it is necessary first to establish the
employment relationship. Once this is done, the plaintiff must show, to hold the employer liable, that
the employee was acting within the scope of his assigned task when the tort complained of was
committed. It is only then that the defendant, as employer, may find it necessary to interpose the
defense of due diligence in the selection and supervision of employees. 45 The diligence of a good
father of a family required to be observed by employers to prevent damages under Article 2180 refers to
due diligence in the selection and supervision of employees in order to protect the public. 46

With the allegation and subsequent proof of negligence against the defendant driver and of an
employer-employee relation between him and his co-defendant MMTC in this instance, the case in
undoubtedly based on a quasi-delict under Article 2180 47 When the employee causes damage due to
his own negligence while performing his own duties, there arises the juris tantum presumption that the
employer is negligent, 48 rebuttable only by proof of observance of the diligence of a good father of a
family. For failure to rebut such legal presumption of negligence in the selection and supervision of
employees, the employer is likewise responsible for damages, 49 the basis of the liability being the
relationship of pater familias or on the employer's own negligence. 50

As early as the case of Gutierrez vs. Gutierrez, 51 and thereafter, we have consistently held that where
the injury is due to the concurrent negligence of the drivers of the colliding vehicles, the drivers and
owners of the said vehicles shall be primarily, directly and solidarily liable for damages and it is immaterial
that one action is based on quasi-delict and the other on culpa contractual, as the solidarily of the
obligation is justified by the very nature thereof. 52

It should be borne in mind that the legal obligation of employers to observe due diligence in the
selection and supervision of employees is not to be considered as an empty play of words or a mere
formalism, as appears to be the fashion of the times, since the non-observance thereof actually
becomes the basis of their vicarious liability under Article 2180.

On the matter of selection of employees, Campo vs. Camarote, supra, lays down this admonition:

. . . . In order tat the owner of a vehicle may be considered as having exercised all
diligence of a good father of a family, he should not have been satisfied with the
mere possession of a professional driver's license; he should have carefully
examined the applicant for employment as to his qualifications, his experience and
record of service. These steps appellant failed to observe; he has therefore, failed to
exercise all due diligence required of a good father of a family in the choice or
selection of driver.
Due diligence in the supervision of employees, on the other hand, includes the formulation of
suitable rules and regulations for the guidance of employees and the issuance of proper instructions
intended for the protection of the public and persons with whom the employer has relations through
his or its employees and the imposition of necessary disciplinary measures upon employees in case
of breach or as may be warranted to ensure the performance of acts indispensable to the business
of and beneficial to their employer. 53 To this, we add that actual implementation and monitoring of
consistent compliance with said rules should be the constant concern of the employer, acting through
dependable supervisors who should regularly report on their supervisory functions.

In order that the defense of due diligence in the selection and supervision of employees may be
deemed sufficient and plausible, it is not enough to emptily invoke the existence of said company
guidelines and policies on hiring and supervision. As the negligence of the employee gives rise to
the presumption of negligence on the part of the employer, the latter has the burden of proving that it
has been diligent not only in the selection of employees but also in the actual supervision of their
work. The mere allegation of the existence of hiring procedures and supervisory policies, without
anything more, is decidedly not sufficient to overcome presumption.

We emphatically reiterate our holding, as a warning to all employers, that "(t)he mere formulation of
various company policies on safety without showing that they were being complied with is not
sufficient to exempt petitioner from liability arising from negligence of its employees. It is incumbent
upon petitioner to show that in recruiting and employing the erring driver the recruitment procedures
and company policies on efficiency and safety were followed." 54 Paying lip-service to these injunctions
or merely going through the motions of compliance therewith will warrant stern sanctions from the Court.

These obligations, imposed by the law and public policy in the interests and for the safety of the
commuting public, herein petitioner failed to perform. Respondent court was definitely correct in
ruling that ". . . due diligence in the selection and supervision of employee (is) not proved by mere
testimonies to the effect that its applicant has complied with all the company requirements before
one is admitted as an employee but without proof thereof." 55 It is further a distressing commentary on
petitioner that it is a government-owned public utility, maintained by public funds, and organized for the
public welfare.

The Court it is necessary to once again stress the following rationale behind these all-important
statutory and jurisprudential mandates, for it has been observed that despite its pronouncement
in Kapalaran Bus Line vs. Coronado, et al., supra, there has been little improvement in the transport
situation in the country:

In requiring the highest possible degree of diligence from common carriers and
creating a presumption of negligence against them, the law compels them to curb the
recklessness of their drivers. While the immediate beneficiaries of the standard of
extraordinary diligence are, of course, the passengers and owners of the cargo
carried by a common carrier, they are not the only persons that the law seeks to
benefit. For if common carriers carefully observe the statutory standard of
extraordinary diligence in respect of their own passengers, they cannot help but
simultaneously benefit pedestrians and the owners and passengers of other vehicles
who are equally entitled to the safe and convenient use of our roads and highways.
The law seeks to stop and prevent the slaughter and maiming of people (whether
passengers or not) and the destruction of property (whether freight or not) on our
highways by buses, the very size and power of which seem often to inflame the
minds of their drivers. . . .
Finally, we believe that respondent court acted in the exercise of sound discretion when it affirmed
the trial court's award, without requiring the payment of interest thereon as an item of damages just
because of delay in the determination thereof, especially since private respondent did not specifically
pray therefor in her complaint. Article 2211 of the Civil Code provides that in quasi-delicts, interest as
a part of the damages may be awarded in the discretion of the court, and not as a matter of right. We
do not perceive that there have been international dilatory maneuvers or any special circumstances
which would justify that additional award and, consequently, we find no reason to disturb said ruling.

WHEREFORE, the impugned decision of respondent Court of Appeals is hereby AFFIRMED.

SO ORDERED.

FIRST DIVISION

[G.R. No. 129792. December 21, 1999]

JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE

TIOPE and ELISA PANELO, petitioners, vs. HONORABLE COURT
OF APPEALS, CONRADO C. AGUILAR and CRISELDA R.
AGUILAR, respondents.

DECISION
DAVIDE, JR., C.J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court,
petitioners seek the reversal of the 17 June 1996 decision [1] of the Court of Appeals
in C.A. G.R. No. CV 37937 and the resolution [2]denying their motion for
reconsideration. The assailed decision set aside the 15 January 1992 judgment of
the Regional Trial Court (RTC), Makati City, Branch 60 in Civil Case No. 7119
and ordered petitioners to pay damages and attorneys fees to private respondents
Conrado and Criselda (CRISELDA) Aguilar.

Petitioner Jarco Marketing Corporation is the owner of Syvels Department

Store, Makati City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are
the stores branch manager, operations manager, and supervisor,
respectively. Private respondents are spouses and the parents of Zhieneth Aguilar
(ZHIENETH).

In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd
floor of Syvels Department Store, Makati City. CRISELDA was signing her credit
card slip at the payment and verification counter when she felt a sudden gust of
wind and heard a loud thud. She looked behind her. She then beheld her daughter
ZHIENETH on the floor, her young body pinned by the bulk of the stores gift-
wrapping counter/structure. ZHIENETH was crying and screaming for
help. Although shocked, CRISELDA was quick to ask the assistance of the people
around in lifting the counter and retrieving ZHIENETH from the floor.[3]

ZHIENETH was quickly rushed to the Makati Medical Center where she was
operated on. The next day ZHIENETH lost her speech and thereafter
communicated with CRISELDA by writing on a magic slate. The injuries she
sustained took their toil on her young body. She died fourteen (14) days after the
accident or on 22 May 1983, on the hospital bed. She was six years old.[4]

The cause of her death was attributed to the injuries she sustained. The
provisional medical certificate[5] issued by ZHIENETHs attending doctor described
the extent of her injuries:

Diagnoses:

1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury

2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver

3. Rupture, stomach, anterior & posterior walls

4. Complete transection, 4th position, duodenum

5. Hematoma, extensive, retroperitoneal

6. Contusion, lungs, severe

CRITICAL

After the burial of their daughter, private respondents demanded upon

petitioners the reimbursement of the hospitalization, medical bills and wake and
funeral expenses[6] which they had incurred.Petitioners refused to
pay. Consequently, private respondents filed a complaint for damages, docketed as
Civil Case No. 7119 wherein they sought the payment of P157,522.86 for actual
damages, P300,000 for moral damages, P20,000 for attorneys fees and an
unspecified amount for loss of income and exemplary damages.
 In their answer with counterclaim, petitioners denied any liability for the
injuries and consequent death of ZHIENETH. They claimed that CRISELDA was
negligent in exercising care and diligence over her daughter by allowing her to
freely roam around in a store filled with glassware and appliances. ZHIENETH
too, was guilty of contributory negligence since she climbed the counter,
triggering its eventual collapse on her. Petitioners also emphasized that the counter
was made of sturdy wood with a strong support; it never fell nor collapsed for the
past fifteen years since its construction.

Additionally, petitioner Jarco Marketing Corporation maintained that it

observed the diligence of a good father of a family in the selection, supervision
and control of its employees. The other petitioners likewise raised due care and
diligence in the performance of their duties and countered that the complaint was
malicious for which they suffered besmirched reputation and mental anguish.They
sought the dismissal of the complaint and an award of moral and exemplary
damages and attorneys fees in their favor.

In its decision[7] the trial court dismissed the complaint and counterclaim after
finding that the preponderance of the evidence favored petitioners. It ruled that the
proximate cause of the fall of the counter on ZHIENETH was her act of clinging
to it. It believed petitioners witnesses who testified that ZHIENETH clung to the
counter, afterwhich the structure and the girl fell with the structure falling on top
of her, pinning her stomach. In contrast, none of private respondents witnesses
testified on how the counter fell. The trial court also held that CRISELDAs
negligence contributed to ZHIENETHs accident.

In absolving petitioners from any liability, the trial court reasoned that the
counter was situated at the end or corner of the 2nd floor as a precautionary
measure hence, it could not be considered as an attractive nuisance. [8] The counter
was higher than ZHIENETH. It has been in existence for fifteen years. Its
structure was safe and well-balanced. ZHIENETH, therefore, had no business
climbing on and clinging to it.

Private respondents appealed the decision, attributing as errors of the trial

court its findings that: (1) the proximate cause of the fall of the counter was
ZHIENETHs misbehavior; (2) CRISELDA was negligent in her care of
ZHIENETH; (3) petitioners were not negligent in the maintenance of the counter;
and (4) petitioners were not liable for the death of ZHIENETH.
 Further, private respondents asserted that ZHIENETH should be entitled to the
conclusive presumption that a child below nine (9) years is incapable of
contributory negligence. And even if ZHIENETH, at six (6) years old, was already
capable of contributory negligence, still it was physically impossible for her to
have propped herself on the counter. She had a small frame (four feet high and
seventy pounds) and the counter was much higher and heavier than she was. Also,
the testimony of one of the stores former employees, Gerardo Gonzales, who
accompanied ZHIENETH when she was brought to the emergency room of the
Makati Medical Center belied petitioners theory that ZHIENETH climbed the
counter. Gonzales claimed that when ZHIENETH was asked by the doctor what
she did, ZHIENETH replied, [N]othing, I did not come near the counter and the
counter just fell on me. [9] Accordingly, Gonzales testimony on ZHIENETHs
spontaneous declaration should not only be considered as part of res gestae but
also accorded credit.

Moreover, negligence could not be imputed to CRISELDA for it was

reasonable for her to have let go of ZHIENETH at the precise moment that she
was signing the credit card slip.

Finally, private respondents vigorously maintained that the proximate cause of

ZHIENETHs death, was petitioners negligence in failing to institute measures to
have the counter permanently nailed.

On the other hand, petitioners argued that private respondents raised purely
factual issues which could no longer be disturbed. They explained that
ZHIENETHs death while unfortunate and tragic, was an accident for which
neither CRISELDA nor even ZHIENETH could entirely be held faultless and
blameless. Further, petitioners adverted to the trial courts rejection of Gonzales
testimony as unworthy of credence.

As to private respondents claim that the counter should have been nailed to the
ground, petitioners justified that it was not necessary. The counter had been in
existence for several years without any prior accident and was deliberately placed
at a corner to avoid such accidents. Truth to tell, they acted without fault or
negligence for they had exercised due diligence on the matter. In fact, the criminal
case[10] for homicide through simple negligence filed by private respondents against
the individual petitioners was dismissed; a verdict of acquittal was rendered in
their favor.
 The Court of Appeals, however, decided in favor of private respondents and
reversed the appealed judgment. It found that petitioners were negligent in
maintaining a structurally dangerous counter.The counter was shaped like an
inverted L[11] with a top wider than the base. It was top heavy and the weight of the
upper portion was neither evenly distributed nor supported by its narrow
base. Thus, the counter was defective, unstable and dangerous; a downward
pressure on the overhanging portion or a push from the front could cause the
counter to fall. Two former employees of petitioners had already previously
brought to the attention of the management the danger the counter could
cause. But the latter ignored their concern. The Court of Appeals faulted the
petitioners for this omission, and concluded that the incident that befell
ZHIENETH could have been avoided had petitioners repaired the defective
counter. It was inconsequential that the counter had been in use for some time
without a prior incident.

The Court of Appeals declared that ZHIENETH, who was below seven (7)
years old at the time of the incident, was absolutely incapable of negligence or
other tort. It reasoned that since a child under nine (9) years could not be held
liable even for an intentional wrong, then the six-year old ZHIENETH could not
be made to account for a mere mischief or reckless act. It also absolved
CRISELDA of any negligence, finding nothing wrong or out of the ordinary in
momentarily allowing ZHIENETH to walk while she signed the document at the
nearby counter.

The Court of Appeals also rejected the testimonies of the witnesses of

petitioners. It found them biased and prejudiced. It instead gave credit to the
testimony of disinterested witness Gonzales. The Court of Appeals then
awarded P99,420.86 as actual damages, the amount representing the
hospitalization expenses incurred by private respondents as evidenced by the
hospital's statement of account. [12]It denied an award for funeral expenses for lack
of proof to substantiate the same. Instead, a compensatory damage of P50,000 was
awarded for the death of ZHIENETH.

We quote the dispositive portion of the assailed decision, [13] thus:

WHEREFORE, premises considered, the judgment of the lower court is SET

ASIDE and another one is entered against [petitioners], ordering them to pay
jointly and severally unto [private respondents] the following:
 1. P50,000.00 by way of compensatory damages for the death of Zhieneth
Aguilar, with legal interest (6% p.a.) from 27 April 1984;

2. P99,420.86 as reimbursement for hospitalization expenses incurred; with

legal interest (6% p.a.) from 27 April 1984;

3. P100,000.00 as moral and exemplary damages;

4. P20,000.00 in the concept of attorneys fees; and

5. Costs.

Private respondents sought a reconsideration of the decision but the same was
denied in the Court of Appeals resolution[14] of 16 July 1997.

Petitioners now seek the reversal of the Court of Appeals decision and the
reinstatement of the judgment of the trial court. Petitioners primarily argue that the
Court of Appeals erred in disregarding the factual findings and conclusions of the
trial court. They stress that since the action was based on tort, any finding of
negligence on the part of the private respondents would necessarily negate their
claim for damages, where said negligence was the proximate cause of the injury
sustained. The injury in the instant case was the death of ZHIENETH. The
proximate cause was ZHIENETHs act of clinging to the counter. This act in turn
caused the counter to fall on her. This and CRISELDAs contributory negligence,
through her failure to provide the proper care and attention to her child while
inside the store, nullified private respondents claim for damages. It is also for
these reasons that parents are made accountable for the damage or injury inflicted
on others by their minor children. Under these circumstances, petitioners could not
be held responsible for the accident that befell ZHIENETH.

Petitioners also assail the credibility of Gonzales who was already separated
from Syvels at the time he testified; hence, his testimony might have been
tarnished by ill-feelings against them.

For their part, private respondents principally reiterated their arguments that
neither ZHIENETH nor CRISELDA was negligent at any time while inside the
store; the findings and conclusions of the Court of Appeals are substantiated by
the evidence on record; the testimony of Gonzales, who heard ZHIENETH
comment on the incident while she was in the hospitals emergency room should
receive credence; and finally, ZHIENETHs part of the res gestae declaration that
she did nothing to cause the heavy structure to fall on her should be considered as
the correct version of the gruesome events.

We deny the petition.

The two issues to be resolved are: (1) whether the death of ZHIENETH was
accidental or attributable to negligence; and (2) in case of a finding of negligence,
whether the same was attributable to private respondents for maintaining a
defective counter or to CRISELDA and ZHIENETH for failing to exercise due
and reasonable care while inside the store premises.

An accident pertains to an unforeseen event in which no fault or negligence

attaches to the defendant. [15] It is a fortuitous circumstance, event or happening; an
event happening without any human agency, or if happening wholly or partly
through human agency, an event which under the circumstances is unusual or
unexpected by the person to whom it happens. [16]

On the other hand, negligence is the omission to do something which a

reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs, would do, or the doing of something which a prudent
and reasonable man would not do.[17] Negligence is the failure to observe, for the
protection of the interest of another person, that degree of care, precaution and
vigilance which the circumstances justly demand, whereby such other person
suffers injury.[18]

Accident and negligence are intrinsically contradictory; one cannot exist with
the other. Accident occurs when the person concerned is exercising ordinary care,
which is not caused by fault of any person and which could not have been
prevented by any means suggested by common prudence. [19]

The test in determining the existence of negligence is enunciated in the

landmark case of Picart v. Smith,[20] thus: Did the defendant in doing the alleged
negligent act use that reasonable care and caution which an ordinarily prudent
person would have used in the same situation? If not, then he is guilty of
negligence.[21]

We rule that the tragedy which befell ZHIENETH was no accident and that
ZHIENETHs death could only be attributed to negligence.
 We quote the testimony of Gerardo Gonzales who was at the scene of the
incident and accompanied CRISELDA and ZHIENETH to the hospital:

Q While at the Makati Medical Center, did you hear or notice anything while the child was being
treated?

A At the emergency room we were all surrounding the child. And when the doctor asked the child
what did you do, the child said nothing, I did not come near the counter and the counter just
fell on me.

Q (COURT TO ATTY. BELTRAN)

You want the words in Tagalog to be translated?

ATTY. BELTRAN

Yes, your Honor.

COURT

Granted. Intercalate wala po, hindi po ako lumapit doon. Basta bumagsak.[22]

This testimony of Gonzales pertaining to ZHIENETHs statement formed (and

should be admitted as) part of the res gestae under Section 42, Rule 130 of the
Rules of Court, thus:

Part of res gestae. Statements made by a person while a startling occurrence is

taking place or immediately prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as part of the res gestae. So, also,
statements accompanying an equivocal act material to the issue, and giving it a
legal significance, may be received as part of the res gestae.

It is axiomatic that matters relating to declarations of pain or suffering and

statements made to a physician are generally considered declarations and
admissions.[23] All that is required for their admissibility as part of the res gestae is
that they be made or uttered under the influence of a startling event before the
declarant had the time to think and concoct a falsehood as witnessed by the person
who testified in court. Under the circumstances thus described, it is unthinkable
for ZHIENETH, a child of such tender age and in extreme pain, to have lied to a
doctor whom she trusted with her life. We therefore accord credence to Gonzales
testimony on the matter, i.e., ZHIENETH performed no act that facilitated her
tragic death. Sadly, petitioners did, through their negligence or omission to secure
or make stable the counters base.

Gonzales earlier testimony on petitioners insistence to keep and maintain the

structurally unstable gift-wrapping counter proved their negligence, thus:

Q When you assumed the position as gift wrapper at the second floor, will you
please describe the gift wrapping counter, were you able to examine?

A Because every morning before I start working I used to clean that counter
and since it is not nailed and it was only standing on the floor, it was shaky.

xxx

Q Will you please describe the counter at 5:00 oclock [sic] in the afternoon on [sic] May 9 1983?

A At that hour on May 9, 1983, that counter was standing beside the verification counter. And
since the top of it was heavy and considering that it was not nailed, it can collapse at
anytime, since the top is heavy.

xxx

Q And what did you do?

A I informed Mr. Maat about that counter which is [sic] shaky and since Mr. Maat is fond
of putting display decorations on tables, he even told me that I would put some
decorations. But since I told him that it not [sic] nailed and it is shaky he told me
better inform also the company about it. And since the company did not do anything
about the counter, so I also did not do anything about the counter.[24] [Emphasis
supplied]

Ramon Guevarra, another former employee, corroborated the testimony of

Gonzales, thus:

Q Will you please described [sic] to the honorable Court the counter where you were assigned in
January 1983?

xxx

A That counter assigned to me was when my supervisor ordered me to carry that counter to
another place. I told him that the counter needs nailing and it has to be nailed because it
might cause injury or accident to another since it was shaky.
 Q When that gift wrapping counter was transferred at the second floor on February 12, 1983, will
you please describe that to the honorable Court?

A I told her that the counter wrapper [sic] is really in good [sic] condition; it was shaky. I told
her that we had to nail it.

Q When you said she, to whom are you referring to [sic]?

A I am referring to Ms. Panelo, sir.

Q And what was the answer of Ms. Panelo when you told her that the counter was shaky?

A She told me Why do you have to teach me. You are only my subordinate and you are to teach
me? And she even got angry at me when I told her that.

xxx

Q From February 12, 1983 up to May 9, 1983, what if any, did Ms. Panelo or any employee of the
management do to that (sic)

xxx

Witness:

None, sir. They never nailed the counter. They only nailed the counter after the accident
happened.[25] [Emphasis supplied]

Without doubt, petitioner Panelo and another store supervisor were personally
informed of the danger posed by the unstable counter. Yet, neither initiated any
concrete action to remedy the situation nor ensure the safety of the stores
employees and patrons as a reasonable and ordinary prudent man would have
done. Thus, as confronted by the situation petitioners miserably failed to discharge
the due diligence required of a good father of a family.

On the issue of the credibility of Gonzales and Guevarra, petitioners failed to

establish that the formers testimonies were biased and tainted with
partiality. Therefore, the allegation that Gonzales and Guevarras testimonies were
blemished by ill feelings against petitioners since they (Gonzales and Guevarra)
were already separated from the company at the time their testimonies were
offered in court was but mere speculation and deserved scant consideration.

It is settled that when the issue concerns the credibility of witnesses, the
appellate courts will not as a general rule disturb the findings of the trial court,
which is in a better position to determine the same. The trial court has the distinct
advantage of actually hearing the testimony of and observing the deportment of
the witnesses.[26] However, the rule admits of exceptions such as when its
evaluation was reached arbitrarily or it overlooked or failed to appreciate some
facts or circumstances of weight and substance which could affect the result of the
case.[27] In the instant case, petitioners failed to bring their claim within the
exception.

Anent the negligence imputed to ZHIENETH, we apply the conclusive

presumption that favors children below nine (9) years old in that they are
incapable of contributory negligence. In his book,[28]former Judge Cezar S. Sangco
stated:

In our jurisdiction, a person under nine years of age is conclusively presumed to

have acted without discernment, and is, on that account, exempt from criminal
liability. The same presumption and a like exemption from criminal liability
obtains in a case of a person over nine and under fifteen years of age, unless it is
shown that he has acted with discernment. Since negligence may be a felony and a
quasi-delict and required discernment as a condition of liability, either criminal or
civil, a child under nine years of age is, by analogy, conclusively presumed to be
incapable of negligence; and that the presumption of lack of discernment or
incapacity for negligence in the case of a child over nine but under fifteen years of
age is a rebuttable one, under our law. The rule, therefore, is that a child under
nine years of age must be conclusively presumed incapable of contributory
negligence as a matter of law. [Emphasis supplied]

Even if we attribute contributory negligence to ZHIENETH and assume that

she climbed over the counter, no injury should have occurred if we accept
petitioners theory that the counter was stable and sturdy. For if that was the truth, a
frail six-year old could not have caused the counter to collapse. The physical
analysis of the counter by both the trial court and Court of Appeals and a scrutiny
of the evidence[29]on record reveal otherwise, i.e., it was not durable after
all. Shaped like an inverted L, the counter was heavy, huge, and its top laden with
formica. It protruded towards the customer waiting area and its base was not
secured.[30]

CRISELDA too, should be absolved from any contributory

negligence. Initially, ZHIENETH held on to CRISELDAs waist, later to the latters
hand.[31] CRISELDA momentarily released the childs hand from her clutch when
she signed her credit card slip. At this precise moment, it was reasonable and usual
for CRISELDA to let go of her child. Further, at the time ZHIENETH was pinned
down by the counter, she was just a foot away from her mother; and the gift-
wrapping counter was just four meters away from CRISELDA. [32] The time and
distance were both significant. ZHIENETH was near her mother and did not loiter
as petitioners would want to impress upon us. She even admitted to the doctor
who treated her at the hospital that she did not do anything; the counter just fell on
her.

WHEREFORE, in view of all the foregoing, the instant petition is DENIED

and the challenged decision of the Court of Appeals of 17 June 1996 in C.A. G.R.
No. CV 37937 is hereby AFFIRMED.

Costs against petitioners.

SO ORDERED.

G.R. No. L-4977 March 22, 1910

DAVID TAYLOR, plaintiff-appellee,

vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant.

W. H. Lawrence, for appellant.

W. L. Wright, for appellee.

CARSON, J.:

An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor, a
minor, by his father, his nearest relative.

The defendant is a foreign corporation engaged in the operation of a street railway and an electric
light system in the city of Manila. Its power plant is situated at the eastern end of a small island in the
Pasig River within the city of Manila, known as the Isla del Provisor. The power plant may be
reached by boat or by crossing a footbridge, impassable for vehicles, at the westerly end of the
island.

The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years of
age, the son of a mechanical engineer, more mature than the average boy of his age, and having
considerable aptitude and training in mechanics.

On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of
age, crossed the footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an
employee of the defendant, who and promised to make them a cylinder for a miniature engine.
Finding on inquiry that Mr. Murphy was not in his quarters, the boys, impelled apparently by youthful
curiosity and perhaps by the unusual interest which both seem to have taken in machinery, spent
some time in wandering about the company's premises. The visit was made on a Sunday afternoon,
and it does not appear that they saw or spoke to anyone after leaving the power house where they
had asked for Mr. Murphy.

After watching the operation of the travelling crane used in handling the defendant's coal, they
walked across the open space in the neighborhood of the place where the company dumped in the
cinders and ashes from its furnaces. Here they found some twenty or thirty brass fulminating caps
scattered on the ground. These caps are approximately of the size and appearance of small pistol
cartridges and each has attached to it two long thin wires by means of which it may be discharged
by the use of electricity. They are intended for use in the explosion of blasting charges of dynamite,
and have in themselves a considerable explosive power. After some discussion as to the ownership
of the caps, and their right to take them, the boys picked up all they could find, hung them on stick,
of which each took end, and carried them home. After crossing the footbridge, they met a little girl
named Jessie Adrian, less than 9 years old, and all three went to the home of the boy Manuel. The
boys then made a series of experiments with the caps. They trust the ends of the wires into an
electric light socket and obtained no result. They next tried to break the cap with a stone and failed.
Manuel looked for a hammer, but could not find one. Then they opened one of the caps with a knife,
and finding that it was filled with a yellowish substance they got matches, and David held the cap
while Manuel applied a lighted match to the contents. An explosion followed, causing more or less
serious injuries to all three. Jessie, who when the boys proposed putting a match to the contents of
the cap, became frightened and started to run away, received a slight cut in the neck. Manuel had
his hand burned and wounded, and David was struck in the face by several particles of the metal
capsule, one of which injured his right eye to such an extent as to the necessitate its removal by the
surgeons who were called in to care for his wounds.

The evidence does definitely and conclusively disclose how the caps came to be on the defendant's
premises, nor how long they had been there when the boys found them. It appears, however, that
some months before the accident, during the construction of the defendant's plant, detonating caps
of the same size and kind as those found by the boys were used in sinking a well at the power plant
near the place where the caps were found; and it also appears that at or about the time when these
caps were found, similarly caps were in use in the construction of an extension of defendant's street
car line to Fort William McKinley. The caps when found appeared to the boys who picked them up to
have been lying for a considerable time, and from the place where they were found would seem to
have been discarded as detective or worthless and fit only to be thrown upon the rubbish heap.

No measures seems to have been adopted by the defendant company to prohibit or prevent visitors
from entering and walking about its premises unattended, when they felt disposed so to do. As
admitted in defendant counsel's brief, "it is undoubtedly true that children in their play sometimes
crossed the foot bridge to the islands;" and, we may add, roamed about at will on the uninclosed
premises of the defendant, in the neighborhood of the place where the caps were found. There is
evidence that any effort ever was made to forbid these children from visiting the defendant
company's premises, although it must be assumed that the company or its employees were aware of
the fact that they not infrequently did so.

Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the
interisland transports. Later he took up work in his father's office, learning mechanical drawing and
mechanical engineering. About a month after his accident he obtained employment as a mechanical
draftsman and continued in that employment for six months at a salary of P2.50 a day; and it
appears that he was a boy of more than average intelligence, taller and more mature both mentally
and physically than most boys of fifteen.

The facts set out in the foregoing statement are to our mind fully and conclusively established by the
evidence of record, and are substantially admitted by counsel. The only questions of fact which are
seriously disputed are plaintiff's allegations that the caps which were found by plaintiff on defendant
company's premises were the property of the defendant, or that they had come from its possession
and control, and that the company or some of its employees left them exposed on its premises at the
point where they were found.

The evidence in support of these allegations is meager, and the defendant company, apparently
relying on the rule of law which places the burden of proof of such allegations upon the plaintiff,
offered no evidence in rebuttal, and insists that plaintiff failed in his proof. We think, however, that
plaintiff's evidence is sufficient to sustain a finding in accord with his allegations in this regard.

It was proven that caps, similar to those found by plaintiff, were used, more or less extensively, on
the McKinley extension of the defendant company's track; that some of these caps were used in
blasting a well on the company's premises a few months before the accident; that not far from the
place where the caps were found the company has a storehouse for the materials, supplies and so
forth, used by it in its operations as a street railway and a purveyor of electric light; and that the
place, in the neighborhood of which the caps were found, was being used by the company as a sort
of dumping ground for ashes and cinders. Fulminating caps or detonators for the discharge by
electricity of blasting charges by dynamite are not articles in common use by the average citizen,
and under all the circumstances, and in the absence of all evidence to the contrary, we think that the
discovery of twenty or thirty of these caps at the place where they were found by the plaintiff on
defendant's premises fairly justifies the inference that the defendant company was either the owner
of the caps in question or had the caps under its possession and control. We think also that the
evidence tends to disclose that these caps or detonators were willfully and knowingly thrown by the
company or its employees at the spot where they were found, with the expectation that they would
be buried out of the sight by the ashes which it was engaged in dumping in that neighborhood, they
being old and perhaps defective; and, however this may be, we are satisfied that the evidence is
sufficient to sustain a finding that the company or some of its employees either willfully or through an
oversight left them exposed at a point on its premises which the general public, including children at
play, where not prohibited from visiting, and over which the company knew or ought to have known
that young boys were likely to roam about in pastime or in play.

Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which
these conclusions are based by intimidating or rather assuming that the blasting work on the
company's well and on its McKinley extension was done by contractors. It was conclusively proven,
however, that while the workman employed in blasting the well was regularly employed by J. G.
White and Co., a firm of contractors, he did the work on the well directly and immediately under the
supervision and control of one of defendant company's foremen, and there is no proof whatever in
the record that the blasting on the McKinley extension was done by independent contractors. Only
one witness testified upon this point, and while he stated that he understood that a part of this work
was done by contract, he could not say so of his own knowledge, and knew nothing of the terms and
conditions of the alleged contract, or of the relations of the alleged contractor to the defendant
company. The fact having been proven that detonating caps were more or less extensively employed
on work done by the defendant company's directions and on its behalf, we think that the company
should have introduced the necessary evidence to support its contention if it wished to avoid the not
unreasonable inference that it was the owner of the material used in these operations and that it was
responsible for tortious or negligent acts of the agents employed therein, on the ground that this
work had been intrusted to independent contractors as to whose acts the maxim respondent
superior should not be applied. If the company did not in fact own or make use of caps such as
those found on its premises, as intimated by counsel, it was a very simple matter for it to prove that
fact, and in the absence of such proof we think that the other evidence in the record sufficiently
establishes the contrary, and justifies the court in drawing the reasonable inference that the caps
found on its premises were its property, and were left where they were found by the company or
some of its employees.

Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor, upon
the provisions of article 1089 of the Civil Code read together with articles 1902, 1903, and 1908 of
that code.

ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit acts
and omissions or by those in which any kind of fault or negligence occurs.

ART. 1902 A person who by an act or omission causes damage to another when there is
fault or negligence shall be obliged to repair the damage so done.

ART. 1903 The obligation imposed by the preceding article is demandable, not only for
personal acts and omissions, but also for those of the persons for whom they should be
responsible.

The father, and on his death or incapacity the mother, is liable for the damages caused by
the minors who live with them.

xxx xxx xxx

Owners or directors of an establishment or enterprise are equally liable for damages caused
by their employees in the service of the branches in which the latter may be employed or on
account of their duties.

xxx xxx xxx

The liability referred to in this article shall cease when the persons mentioned therein prove
that they employed all the diligence of a good father of a family to avoid the damage.

ART. 1908 The owners shall also be liable for the damage caused

1 By the explosion of machines which may not have been cared for with due diligence, and
for kindling of explosive substances which may not have been placed in a safe and proper
place.

Counsel for the defendant and appellant rests his appeal strictly upon his contention that the facts
proven at the trial do not established the liability of the defendant company under the provisions of
these articles, and since we agree with this view of the case, it is not necessary for us to consider
the various questions as to form and the right of action (analogous to those raised in the case of
Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would, perhaps, be involved in a
decision affirming the judgment of the court below.

We agree with counsel for appellant that under the Civil Code, as under the generally accepted
doctrine in the United States, the plaintiff in an action such as that under consideration, in order to
establish his right to a recovery, must establish by competent evidence:

(1) Damages to the plaintiff.

(2) Negligence by act or omission of which defendant personally, or some person for whose
acts it must respond, was guilty.

(3) The connection of cause and effect between the negligence and the damage.

These proposition are, of course, elementary, and do not admit of discussion, the real difficulty
arising in the application of these principles to the particular facts developed in the case under
consideration.

It is clear that the accident could not have happened and not the fulminating caps been left exposed
at the point where they were found, or if their owner had exercised due care in keeping them in an
appropriate place; but it is equally clear that plaintiff would not have been injured had he not, for his
own pleasure and convenience, entered upon the defendant's premises, and strolled around thereon
without the express permission of the defendant, and had he not picked up and carried away the
property of the defendant which he found on its premises, and had he not thereafter deliberately cut
open one of the caps and applied a match to its contents.

But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his entry upon
defendant company's premises, and the intervention of his action between the negligent act of
defendant in leaving the caps exposed on its premises and the accident which resulted in his injury
should not be held to have contributed in any wise to the accident, which should be deemed to be
the direct result of defendant's negligence in leaving the caps exposed at the place where they were
found by the plaintiff, and this latter the proximate cause of the accident which occasioned the
injuries sustained by him.

In support of his contention, counsel for plaintiff relies on the doctrine laid down in many of the courts
of last resort in the United States in the cases known as the "Torpedo" and "Turntable" cases, and
the cases based thereon.

In a typical cases, the question involved has been whether a railroad company is liable for an injury
received by an infant of tender years, who from mere idle curiosity, or for the purposes of
amusement, enters upon the railroad company's premises, at a place where the railroad company
knew, or had good reason to suppose, children would be likely to come, and there found explosive
signal torpedoes left unexposed by the railroad company's employees, one of which when carried
away by the visitor, exploded and injured him; or where such infant found upon the premises a
dangerous machine, such as a turntable, left in such condition as to make it probable that children in
playing with it would be exposed to accident or injury therefrom and where the infant did in fact suffer
injury in playing with such machine.
In these, and in great variety of similar cases, the great weight of authority holds the owner of the
premises liable.

As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal question was
whether a railroad company was liable for in injury received by an infant while upon its premises,
from idle curiosity, or for purposes of amusement, if such injury was, under circumstances,
attributable to the negligence of the company), the principles on which these cases turn are that
"while a railroad company is not bound to the same degree of care in regard to mere strangers who
are unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from
responsibility to such strangers for injuries arising from its negligence or from its tortious acts;" and
that "the conduct of an infant of tender years is not to be judged by the same rule which governs that
of adult. While it is the general rule in regard to an adult that to entitle him to recover damages for an
injury resulting from the fault or negligence of another he must himself have been free from fault,
such is not the rule in regard to an infant of tender years. The care and caution required of a child is
according to his maturity and capacity only, and this is to be determined in each case by the
circumstances of the case."

The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and sharply
criticized in several state courts, and the supreme court of Michigan in the case of Ryan vs.
Towar (128 Mich., 463) formally repudiated and disapproved the doctrine of the Turntable cases,
especially that laid down in Railroad Company vs. Stout, in a very able decision wherein it held, in
the language of the syllabus: (1) That the owner of the land is not liable to trespassers thereon for
injuries sustained by them, not due to his wanton or willful acts; (2) that no exception to this rule
exists in favor of children who are injured by dangerous machinery naturally calculated to attract
them to the premises; (3) that an invitation or license to cross the premises of another can not be
predicated on the mere fact that no steps have been taken to interfere with such practice; (4) that
there is no difference between children and adults as to the circumstances that will warrant the
inference of an invitation or a license to enter upon another's premises.

Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in by the
courts in Connecticut and Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass., 349).
And the doctrine has been questioned in Wisconsin, Pennsylvania, New Hampshire, and perhaps in
other States.

On the other hand, many if not most of the courts of last resort in the United States, citing and
approving the doctrine laid down in England in the leading case of Lynch vs. Nurding (1 Q. B., 29,
35, 36), lay down the rule in these cases in accord with that announced in the Railroad Company vs.
Stout (supra), and the Supreme Court of the United States, in a unanimous opinion delivered by
Justice Harlan in the case of Union Pacific Railway Co. vs. McDonal and reconsidered the doctrine
laid down in Railroad Co. vs. Stout, and after an exhaustive and critical analysis and review of many
of the adjudged cases, both English and American, formally declared that it adhered "to the
principles announced in the case of Railroad Co. vs. Stout."

In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as follows: The
plaintiff, a boy 12 years of age, out of curiosity and for his own pleasure, entered upon and visited
the defendant's premises, without defendant's express permission or invitation, and while there, was
by accident injured by falling into a burning slack pile of whose existence he had no knowledge, but
which had been left by defendant on its premises without any fence around it or anything to give
warning of its dangerous condition, although defendant knew or had reason the interest or curiosity
of passers-by. On these facts the court held that the plaintiff could not be regarded as a mere
trespasser, for whose safety and protection while on the premises in question, against the unseen
danger referred to, the defendant was under no obligation to make provision.

We quote at length from the discussion by the court of the application of the principles involved to
the facts in that case, because what is said there is strikingly applicable in the case at bar, and would
seem to dispose of defendant's contention that, the plaintiff in this case being a trespasser, the
defendant company owed him no duty, and in no case could be held liable for injuries which would
not have resulted but for the entry of plaintiff on defendant's premises.

We adhere to the principles announced in Railroad Co. vs. Stout (supra). Applied to the case
now before us, they require us to hold that the defendant was guilty of negligence in leaving
unguarded the slack pile, made by it in the vicinity of its depot building. It could have
forbidden all persons from coming to its coal mine for purposes merely of curiosity and
pleasure. But it did not do so. On the contrary, it permitted all, without regard to age, to visit
its mine, and witness its operation. It knew that the usual approach to the mine was by a
narrow path skirting its slack pit, close to its depot building, at which the people of the village,
old and young, would often assemble. It knew that children were in the habit of frequenting
that locality and playing around the shaft house in the immediate vicinity of the slack pit. The
slightest regard for the safety of these children would have suggested that they were in
danger from being so near a pit, beneath the surface of which was concealed (except when
snow, wind, or rain prevailed) a mass of burning coals into which a child might accidentally
fall and be burned to death. Under all the circumstances, the railroad company ought not to
be heard to say that the plaintiff, a mere lad, moved by curiosity to see the mine, in the
vicinity of the slack pit, was a trespasser, to whom it owed no duty, or for whose protection it
was under no obligation to make provisions.

In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man dangerous traps, baited
with flesh, in his own ground, so near to a highway, or to the premises of another, that dogs
passing along the highway, or kept in his neighbors premises, would probably be attracted by
their instinct into the traps, and in consequence of such act his neighbor's dogs be so
attracted and thereby injured, an action on the case would lie. "What difference," said Lord
Ellenborough, C.J., "is there in reason between drawing the animal into the trap by means of
his instinct which he can not resist, and putting him there by manual force?" What difference,
in reason we may observe in this case, is there between an express license to the children of
this village to visit the defendant's coal mine, in the vicinity of its slack pile, and an implied
license, resulting from the habit of the defendant to permit them, without objection or
warning, to do so at will, for purposes of curiosity or pleasure? Referring it the case
of Townsend vs. Wathen, Judge Thompson, in his work on the Law of Negligence, volume 1,
page 305, note, well says: "It would be a barbarous rule of law that would make the owner of
land liable for setting a trap thereon, baited with stinking meat, so that his neighbor's dog
attracted by his natural instinct, might run into it and be killed, and which would exempt him
from liability for the consequence of leaving exposed and unguarded on his land a
dangerous machine, so that his neighbor's child attracted to it and tempted to intermeddle
with it by instincts equally strong, might thereby be killed or maimed for life."

Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of Powers vs.
Harlow (53 Mich., 507), said that (p. 515):
 Children, wherever they go, must be expected to act upon childlike instincts and impulses;
and others who are chargeable with a duty of care and caution toward them must calculate
upon this, and take precautions accordingly. If they leave exposed to the observation of
children anything which would be tempting to them, and which they in their immature
judgment might naturally suppose they were at liberty to handle or play with, they should
expect that liberty to be taken.

And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied invitation to visit
the premises of another, says:

In the case of young children, and other persons not fully sui juris, an implied license might
sometimes arise when it would not on behalf of others. Thus leaving a tempting thing for
children to play with exposed, where they would be likely to gather for that purpose, may be
equivalent to an invitation to them to make use of it; and, perhaps, if one were to throw away
upon his premises, near the common way, things tempting to children, the same implication
should arise. (Chap. 10, p. 303.)

The reasoning which led the Supreme Court of the United States to its conclusion in the cases
of Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs. McDonald (supra) is not less
cogent and convincing in this jurisdiction than in that wherein those cases originated. Children here
are actuated by similar childish instincts and impulses. Drawn by curiosity and impelled by the
restless spirit of youth, boys here as well as there will usually be found whenever the public is
permitted to congregate. The movement of machinery, and indeed anything which arouses the
attention of the young and inquiring mind, will draw them to the neighborhood as inevitably as does
the magnet draw the iron which comes within the range of its magnetic influence. The owners of
premises, therefore, whereon things attractive to children are exposed, or upon which the public are
expressly or impliedly permitted to enter or upon which the owner knows or ought to know children
are likely to roam about for pastime and in play, " must calculate upon this, and take precautions
accordingly." In such cases the owner of the premises can not be heard to say that because the child
has entered upon his premises without his express permission he is a trespasser to whom the owner
owes no duty or obligation whatever. The owner's failure to take reasonable precautions to prevent
the child from entering his premises at a place where he knows or ought to know that children are
accustomed to roam about of to which their childish instincts and impulses are likely to attract them
is at least equivalent to an implied license to enter, and where the child does enter under such
conditions the owner's failure to take reasonable precautions to guard the child against injury from
unknown or unseen dangers, placed upon such premises by the owner, is clearly a breach of duty,
responsible, if the child is actually injured, without other fault on its part than that it had entered on
the premises of a stranger without his express invitation or permission. To hold otherwise would be
expose all the children in the community to unknown perils and unnecessary danger at the whim of
the owners or occupants of land upon which they might naturally and reasonably be expected to
enter.

This conclusion is founded on reason, justice, and necessity, and neither is contention that a man
has a right to do what will with his own property or that children should be kept under the care of
their parents or guardians, so as to prevent their entering on the premises of others is of sufficient
weight to put in doubt. In this jurisdiction as well as in the United States all private property is
acquired and held under the tacit condition that it shall not be so used as to injure the equal rights
and interests of the community (see U. S. vs. Toribio,1 No. 5060, decided January 26, 1910), and
except as to infants of very tender years it would be absurd and unreasonable in a community
organized as is that in which we lived to hold that parents or guardian are guilty of negligence or
imprudence in every case wherein they permit growing boys and girls to leave the parental roof
unattended, even if in the event of accident to the child the negligence of the parent could in any
event be imputed to the child so as to deprive it a right to recover in such cases a point which we
neither discuss nor decide.

But while we hold that the entry of the plaintiff upon defendant's property without defendant's
express invitation or permission would not have relieved defendant from responsibility for injuries
incurred there by plaintiff, without other fault on his part, if such injury were attributable to the
negligence of the defendant, we are of opinion that under all the circumstances of this case the
negligence of the defendant in leaving the caps exposed on its premises was not the proximate
cause of the injury received by the plaintiff, which therefore was not, properly speaking, "attributable
to the negligence of the defendant," and, on the other hand, we are satisfied that plaintiffs action in
cutting open the detonating cap and putting match to its contents was the proximate cause of the
explosion and of the resultant injuries inflicted upon the plaintiff, and that the defendant, therefore is
not civilly responsible for the injuries thus incurred.

Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of plaintiff's
youth the intervention of his action between the negligent act of the defendant in leaving the caps
exposed on its premises and the explosion which resulted in his injury should not be held to have
contributed in any wise to the accident; and it is because we can not agree with this proposition,
although we accept the doctrine of the Turntable and Torpedo cases, that we have thought proper to
discuss and to consider that doctrine at length in this decision. As was said in case of Railroad Co.
vs. Stout (supra), "While it is the general rule in regard to an adult that to entitle him to recover
damages for an injury resulting from the fault or negligence of another he must himself have been
free from fault, such is not the rule in regard to an infant of tender years. The care and caution
required of a child is according to his maturity and capacity only, and this is to be determined in each
case by the circumstances of the case." As we think we have shown, under the reasoning on which
rests the doctrine of the Turntable and Torpedo cases, no fault which would relieve defendant of
responsibility for injuries resulting from its negligence can be attributed to the plaintiff, a well-grown
boy of 15 years of age, because of his entry upon defendant's uninclosed premises without express
permission or invitation' but it is wholly different question whether such youth can be said to have
been free from fault when he willfully and deliberately cut open the detonating cap, and placed a
match to the contents, knowing, as he undoubtedly did, that his action would result in an explosion.
On this point, which must be determined by "the particular circumstances of this case," the doctrine
laid down in the Turntable and Torpedo cases lends us no direct aid, although it is worthy of
observation that in all of the "Torpedo" and analogous cases which our attention has been directed,
the record discloses that the plaintiffs, in whose favor judgments have been affirmed, were of such
tender years that they were held not to have the capacity to understand the nature or character of
the explosive instruments which fell into their hands.

In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature
both mentally and physically than the average boy of his age; he had been to sea as a cabin boy;
was able to earn P2.50 a day as a mechanical draftsman thirty days after the injury was incurred;
and the record discloses throughout that he was exceptionally well qualified to take care of himself.
The evidence of record leaves no room for doubt that, despite his denials on the witness stand, he
well knew the explosive character of the cap with which he was amusing himself. The series of
experiments made by him in his attempt to produce an explosion, as described by the little girl who
was present, admit of no other explanation. His attempt to discharge the cap by the use of electricity,
followed by his efforts to explode it with a stone or a hammer, and the final success of his endeavors
brought about by the application of a match to the contents of the caps, show clearly that he knew
what he was about. Nor can there be any reasonable doubt that he had reason to anticipate that the
explosion might be dangerous, in view of the fact that the little girl, 9 years of age, who was within
him at the time when he put the match to the contents of the cap, became frightened and ran away.

True, he may not have known and probably did not know the precise nature of the explosion which
might be expected from the ignition of the contents of the cap, and of course he did not anticipate
the resultant injuries which he incurred; but he well knew that a more or less dangerous explosion
might be expected from his act, and yet he willfully, recklessly, and knowingly produced the
explosion. It would be going far to say that "according to his maturity and capacity" he exercised
such and "care and caution" as might reasonably be required of him, or that defendant or anyone
else should be held civilly responsible for injuries incurred by him under such circumstances.

The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to
understand and appreciate the nature and consequences of his own acts, so as to make it
negligence on his part to fail to exercise due care and precaution in the commission of such acts;
and indeed it would be impracticable and perhaps impossible so to do, for in the very nature of
things the question of negligence necessarily depends on the ability of the minor to understand the
character of his own acts and their consequences; and the age at which a minor can be said to have
such ability will necessarily depends of his own acts and their consequences; and at the age at
which a minor can be said to have such ability will necessarily vary in accordance with the varying
nature of the infinite variety of acts which may be done by him. But some idea of the presumed
capacity of infants under the laws in force in these Islands may be gathered from an examination of
the varying ages fixed by our laws at which minors are conclusively presumed to be capable of
exercising certain rights and incurring certain responsibilities, though it can not be said that these
provisions of law are of much practical assistance in cases such as that at bar, except so far as they
illustrate the rule that the capacity of a minor to become responsible for his own acts varies with the
varying circumstances of each case. Under the provisions of the Penal Code a minor over fifteen
years of age is presumed to be capable of committing a crime and is to held criminally responsible
therefore, although the fact that he is less than eighteen years of age will be taken into consideration
as an extenuating circumstance (Penal Code, arts. 8 and 9). At 10 years of age a child may, under
certain circumstances, choose which parent it prefers to live with (Code of Civil Procedure, sec.
771). At 14 may petition for the appointment of a guardian (Id., sec. 551), and may consent or refuse
to be adopted (Id., sec. 765). And males of 14 and females of 12 are capable of contracting a legal
marriage (Civil Code, art. 83; G. O., No. 68, sec. 1).

We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be
sensible of the danger to which he exposed himself when he put the match to the contents of the
cap; that he was sui juris in the sense that his age and his experience qualified him to understand
and appreciate the necessity for the exercise of that degree of caution which would have avoided the
injury which resulted from his own deliberate act; and that the injury incurred by him must be held to
have been the direct and immediate result of his own willful and reckless act, so that while it may be
true that these injuries would not have been incurred but for the negligence act of the defendant in
leaving the caps exposed on its premises, nevertheless plaintiff's own act was the proximate and
principal cause of the accident which inflicted the injury.

The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur sentire.
(Digest, book 50, tit. 17 rule 203.)
The Patidas contain the following provisions:

The just thing is that a man should suffer the damage which comes to him through his own
fault, and that he can not demand reparation therefor from another. (Law 25, tit. 5, Partida 3.)

And they even said that when a man received an injury through his own acts the grievance
should be against himself and not against another. (Law 2, tit. 7, Partida 2.)

According to ancient sages, when a man received an injury through his own acts the
grievance should be against himself and not against another. (Law 2, tit. 7 Partida 2.)

And while there does not appear to be anything in the Civil Code which expressly lays down the law
touching contributory negligence in this jurisdiction, nevertheless, the interpretation placed upon its
provisions by the supreme court of Spain, and by this court in the case of Rakes vs. Atlantic, Gulf
and Pacific Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at bar the right to recover
damages from the defendant, in whole or in part, for the injuries sustained by him.

The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia Civil, 391),
is directly in point. In that case the court said:

According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a
source of obligation when between such negligence and the injury there exists the relation of
cause and effect; but if the injury produced should not be the result of acts or omissions of a
third party, the latter has no obligation to repair the same, although such acts or omission
were imprudent or unlawful, and much less when it is shown that the immediate cause of the
injury was the negligence of the injured party himself.

The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or
negligence is not sufficient without proof that it, and no other cause, gave rise to the damage."

See also judgment of October 21, 1903.

To similar effect Scaevola, the learned Spanish writer, writing under that title in
his Jurisprudencia del Codigo Civil (1902 Anuario, p. 455), commenting on the decision of
March 7, 1902 of the Civil Code, fault or negligence gives rise to an obligation when between
it and the damage there exists the relation of cause and effect; but if the damage caused
does not arise from the acts or omissions of a third person, there is no obligation to make
good upon the latter, even though such acts or omissions be imprudent or illegal, and much
less so when it is shown that the immediate cause of the damage has been the recklessness
of the injured party himself.

And again

In accordance with the fundamental principle of proof, that the burden thereof is upon the
plaintiff, it is apparent that it is duty of him who shall claim damages to establish their
existence. The decisions of April 9, 1896, and March 18, July, and September 27, 1898, have
especially supported the principle, the first setting forth in detail the necessary points of the
proof, which are two: An act or omission on the part of the person who is to be charged with
the liability, and the production of the damage by said act or omission.
 This includes, by inference, the establishment of a relation of cause or effect between the act
or omission and the damage; the latter must be the direct result of one of the first two. As the
decision of March 22, 1881, said, it is necessary that the damages result immediately and
directly from an act performed culpably and wrongfully; "necessarily presupposing a legal
ground for imputability." (Decision of October 29, 1887.)

Negligence is not presumed, but must be proven by him who alleges it.
(Scavoela, Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)

(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)

Finally we think the doctrine in this jurisdiction applicable to the case at bar was definitely settled in
this court in the maturely considered case of Rakes vs. Atlantic, Gulf and Pacific Co. (supra),
wherein we held that while "There are many cases (personal injury cases) was exonerated," on the
ground that "the negligence of the plaintiff was the immediate cause of the casualty" (decisions of
the 15th of January, the 19th of February, and the 7th of March, 1902, stated in Alcubilla's Index of
that year); none of the cases decided by the supreme court of Spain "define the effect to be given
the negligence of its causes, though not the principal one, and we are left to seek the theory of the
civil law in the practice of other countries;" and in such cases we declared that law in this jurisdiction
to require the application of "the principle of proportional damages," but expressly and definitely
denied the right of recovery when the acts of the injured party were the immediate causes of the
accident.

The doctrine as laid down in that case is as follows:

Difficulty seems to be apprehended in deciding which acts of the injured party shall be
considered immediate causes of the accident. The test is simple. Distinction must be made
between the accident and the injury, between the event itself, without which there could have
been no accident, and those acts of the victim not entering into it, independent of it, but
contributing to his own proper hurt. For instance, the cause of the accident under review was
the displacement of the crosspiece or the failure to replace it. This produces the event giving
occasion for damagesthat is, the sinking of the track and the sliding of the iron rails. To this
event, the act of the plaintiff in walking by the side of the car did not contribute, although it
was an element of the damage which came to himself. Had the crosspiece been out of place
wholly or partly through his act or omission of duty, that would have been one of the
determining causes of the event or accident, for which he would have been responsible.
Where he contributes to the principal occurrence, as one of its determining factors, he can
not recover. Where, in conjunction with the occurrence, he contributes only to his own injury,
he may recover the amount that the defendant responsible for the event should pay for such
injury, less a sum deemed a suitable equivalent for his own imprudence.

We think it is quite clear that under the doctrine thus stated, the immediate cause of the explosion,
the accident which resulted in plaintiff's injury, was in his own act in putting a match to the contents
of the cap, and that having "contributed to the principal occurrence, as one of its determining factors,
he can not recover."

We have not deemed it necessary to examine the effect of plaintiff's action in picking up upon
defendant's premises the detonating caps, the property of defendant, and carrying the relation of
cause and effect between the negligent act or omission of the defendant in leaving the caps exposed
on its premises and the injuries inflicted upon the plaintiff by the explosion of one of these caps.
Under the doctrine of the Torpedo cases, such action on the part of an infant of very tender years
would have no effect in relieving defendant of responsibility, but whether in view of the well-known
fact admitted in defendant's brief that "boys are snappers-up of unconsidered trifles," a youth of the
age and maturity of plaintiff should be deemed without fault in picking up the caps in question under
all the circumstances of this case, we neither discuss nor decide.

Twenty days after the date of this decision let judgment be entered reversing the judgment of the
court below, without costs to either party in this instance, and ten days thereafter let the record be
returned to the court wherein it originated, where the judgment will be entered in favor of the
defendant for the costs in first instance and the complaint dismissed without day. So ordered.

[G.R. No. 122039. May 31, 2000]

VICENTE CALALAS, petitioner, vs. COURT OF APPEALS, ELIZA

JUJEURCHE SUNGA and FRANCISCO SALVA, respondents.

D E C I S I ON

MENDOZA, J.:

This is a petition for review on certiorari of the decision of the Court of

[1]

Appeals, dated March 31, 1991, reversing the contrary decision of the
Regional Trial Court, Branch 36, Dumaguete City, and awarding damages
instead to private respondent Eliza Jujeurche Sunga as plaintiff in an action
for breach of contract of carriage.

The facts, as found by the Court of Appeals, are as follows:

At 10 oclock in the morning of August 23, 1989, private respondent Eliza

Jujeurche G. Sunga, then a college freshman majoring in Physical Education
at the Siliman University, took a passenger jeepney owned and operated by
petitioner Vicente Calalas. As the jeepney was filled to capacity of about 24
passengers, Sunga was given by the conductor an "extension seat," a
wooden stool at the back of the door at the rear end of the vehicle. Sclaw

On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to

let a passenger off. As she was seated at the rear of the vehicle, Sunga gave
way to the outgoing passenger. Just as she was doing so, an Isuzu truck
driven by Iglecerio Verena and owned by Francisco Salva bumped the left
rear portion of the jeepney. As a result, Sunga was injured. She sustained a
fracture of the "distal third of the left tibia-fibula with severe necrosis of the
underlying skin." Closed reduction of the fracture, long leg circular casting,
and case wedging were done under sedation. Her confinement in the hospital
lasted from August 23 to September 7, 1989. Her attending physician, Dr.
Danilo V. Oligario, an orthopedic surgeon, certified she would remain on a
cast for a period of three months and would have to ambulate in crutches
during said period.

On October 9, 1989, Sunga filed a complaint for damages against Calalas,

alleging violation of the contract of carriage by the former in failing to exercise
the diligence required of him as a common carrier. Calalas, on the other hand,
filed a third-party complaint against Francisco Salva, the owner of the Isuzu
truck. Korte

The lower court rendered judgment against Salva as third-party defendant and
absolved Calalas of liability, holding that it was the driver of the Isuzu truck
who was responsible for the accident. It took cognizance of another case
(Civil Case No. 3490), filed by Calalas against Salva and Verena, for quasi-
delict, in which Branch 37 of the same court held Salva and his driver Verena
jointly liable to Calalas for the damage to his jeepney. Rtcspped

On appeal to the Court of Appeals, the ruling of the lower court was reversed
on the ground that Sungas cause of action was based on a contract of
carriage, not quasi-delict, and that the common carrier failed to exercise the
diligence required under the Civil Code. The appellate court dismissed the
third-party complaint against Salva and adjudged Calalas liable for damages
to Sunga. The dispositive portion of its decision reads:

WHEREFORE, the decision appealed from is hereby REVERSED

and SET ASIDE, and another one is entered ordering defendant-
appellee Vicente Calalas to pay plaintiff-appellant:

(1) P50,000.00 as actual and compensatory damages;

(2) P50,000.00 as moral damages;

(3) P10,000.00 as attorneys fees; and

(4) P1,000.00 as expenses of litigation; and

(5) to pay the costs.

 SO ORDERED.

Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490
that the negligence of Verena was the proximate cause of the accident
negates his liability and that to rule otherwise would be to make the common
carrier an insurer of the safety of its passengers. He contends that the
bumping of the jeepney by the truck owned by Salva was a caso fortuito.
Petitioner further assails the award of moral damages to Sunga on the ground
that it is not supported by evidence. Sdaadsc

The petition has no merit.

The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding
the driver and the owner of the truck liable for quasi-delict ignores the fact that
she was never a party to that case and, therefore, the principle of res
judicata does not apply. Missdaa

Nor are the issues in Civil Case No. 3490 and in the present case the same.
The issue in Civil Case No. 3490 was whether Salva and his driver Verena
were liable for quasi-delict for the damage caused to petitioners jeepney. On
the other hand, the issue in this case is whether petitioner is liable on his
contract of carriage. The first, quasi-delict, also known as culpa
aquiliana or culpa extra contractual, has as its source the negligence of the
tortfeasor. The second, breach of contract or culpa contractual, is premised
upon the negligence in the performance of a contractual obligation.

Consequently, in quasi-delict, the negligence or fault should be clearly

established because it is the basis of the action, whereas in breach of
contract, the action can be prosecuted merely by proving the existence of the
contract and the fact that the obligor, in this case the common carrier, failed to
transport his passenger safely to his destination. In case of death or injuries
[2]

to passengers, Art. 1756 of the Civil Code provides that common carriers are
presumed to have been at fault or to have acted negligently unless they prove
that they observed extraordinary diligence as defined in Arts. 1733 and 1755
of the Code. This provision necessarily shifts to the common carrier the
burden of proof. Slxmis

There is, thus, no basis for the contention that the ruling in Civil Case No.
3490, finding Salva and his driver Verena liable for the damage to petitioners
jeepney, should be binding on Sunga. It is immaterial that the proximate cause
of the collision between the jeepney and the truck was the negligence of the
truck driver. The doctrine of proximate cause is applicable only in actions for
quasi-delict, not in actions involving breach of contract. The doctrine is a
device for imputing liability to a person where there is no relation between him
and another party. In such a case, the obligation is created by law itself. But,
where there is a pre-existing contractual relation between the parties, it is the
parties themselves who create the obligation, and the function of the law is
merely to regulate the relation thus created. Insofar as contracts of carriage
are concerned, some aspects regulated by the Civil Code are those
respecting the diligence required of common carriers with regard to the safety
of passengers as well as the presumption of negligence in cases of death or
injury to passengers. It provides: Slxsc

Art. 1733. Common carriers, from the nature of their business and
for reasons of public policy, are bound to observe extraordinary
diligence in the vigilance over the goods and for the safety of the
passengers transported by them, according to all the
circumstances of each case.

Such extraordinary diligence in the vigilance over the goods is

further expressed in articles 1734, 1735, and 1746, Nos. 5,6, and
7, while the extraordinary diligence for the safety of the
passengers is further set forth in articles 1755 and 1756.

Art. 1755. A common carrier is bound to carry the passengers

safely as far as human care and foresight can provide, using the
utmost diligence of very cautious persons, with due regard for all
the circumstances.

Art. 1756. In case of death of or injuries to passengers, common

carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed extraordinary
diligence as prescribed by articles 1733 and 1755.

In the case at bar, upon the happening of the accident, the presumption of
negligence at once arose, and it became the duty of petitioner to prove that he
had to observe extraordinary diligence in the care of his passengers. Scslx

Now, did the driver of jeepney carry Sunga "safely as far as human care and
foresight could provide, using the utmost diligence of very cautious persons,
with due regard for all the circumstances" as required by Art. 1755? We do not
think so. Several factors militate against petitioners contention. Slx

First, as found by the Court of Appeals, the jeepney was not properly parked,
its rear portion being exposed about two meters from the broad shoulders of
the highway, and facing the middle of the highway in a diagonal angle. This is
a violation of the R.A. No. 4136, as amended, or the Land Transportation and
Traffic Code, which provides:

Sec. 54. Obstruction of Traffic. - No person shall drive his motor

vehicle in such a manner as to obstruct or impede the passage of
any vehicle, nor, while discharging or taking on passengers or
loading or unloading freight, obstruct the free passage of other
vehicles on the highway.

Second, it is undisputed that petitioners driver took in more passengers than

the allowed seating capacity of the jeepney, a violation of 32(a) of the same
law. It provides: Mesm

Exceeding registered capacity. - No person operating any motor

vehicle shall allow more passengers or more freight or cargo in
his vehicle than its registered capacity.

The fact that Sunga was seated in an "extension seat" placed her in a peril
greater than that to which the other passengers were exposed. Therefore, not
only was petitioner unable to overcome the presumption of negligence
imposed on him for the injury sustained by Sunga, but also, the evidence
shows he was actually negligent in transporting passengers. Calrky

We find it hard to give serious thought to petitioners contention that Sungas

taking an "extension seat" amounted to an implied assumption of risk. It is
akin to arguing that the injuries to the many victims of the tragedies in our
seas should not be compensated merely because those passengers assumed
a greater risk of drowning by boarding an overloaded ferry. This is also true of
petitioners contention that the jeepney being bumped while it was improperly
parked constitutes caso fortuito. A caso fortuito is an event which could not be
foreseen, or which, though foreseen, was inevitable. This requires that the
[3]

following requirements be present: (a) the cause of the breach is independent

of the debtors will; (b) the event is unforeseeable or unavoidable; (c) the event
is such as to render it impossible for the debtor to fulfill his obligation in a
normal manner, and (d) the debtor did not take part in causing the injury to the
creditor. Petitioner should have foreseen the danger of parking his jeepney
[4]

with its body protruding two meters into the highway. Kycalr

Finally, petitioner challenges the award of moral damages alleging that it is

excessive and without basis in law. We find this contention well taken.

In awarding moral damages, the Court of Appeals stated: Kyle

Plaintiff-appellant at the time of the accident was a first-year

college student in that school year 1989-1990 at the Silliman
University, majoring in Physical Education. Because of the injury,
she was not able to enroll in the second semester of that school
year. She testified that she had no more intention of continuing
with her schooling, because she could not walk and decided not
to pursue her degree, major in Physical Education "because of my
leg which has a defect already."

Plaintiff-appellant likewise testified that even while she was under

confinement, she cried in pain because of her injured left foot. As
a result of her injury, the Orthopedic Surgeon also certified that
she has "residual bowing of the fracture side." She likewise
decided not to further pursue Physical Education as her major
subject, because "my left leg x x x has a defect already."

Those are her physical pains and moral sufferings, the inevitable
bedfellows of the injuries that she suffered. Under Article 2219 of
the Civil Code, she is entitled to recover moral damages in the
sum of P50,000.00, which is fair, just and reasonable.

As a general rule, moral damages are not recoverable in actions for damages
predicated on a breach of contract for it is not one of the items enumerated
under Art. 2219 of the Civil Code. As an exception, such damages are
[5]

recoverable: (1) in cases in which the mishap results in the death of a

passenger, as provided in Art. 1764, in relation to Art. 2206(3) of the Civil
Code; and (2) in the cases in which the carrier is guilty of fraud or bad faith, as
provided in Art. 2220. [6]

In this case, there is no legal basis for awarding moral damages since there
was no factual finding by the appellate court that petitioner acted in bad faith
in the performance of the contract of carriage. Sungas contention that
petitioners admission in open court that the driver of the jeepney failed to
assist her in going to a nearby hospital cannot be construed as an admission
of bad faith. The fact that it was the driver of the Isuzu truck who took her to
the hospital does not imply that petitioner was utterly indifferent to the plight of
his injured passenger. If at all, it is merely implied recognition by Verena that
he was the one at fault for the accident. Exsm

WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995,
and its resolution, dated September 11, 1995, are AFFIRMED, with the
MODIFICATION that the award of moral damages is DELETED.

SO ORDERED.

G.R. No. L-7664 August 29, 1958

MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants,

vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.

Tomas Tria Tirona for appellants.

Government Corporate Counsel Ambrosio Padilla and Juan C. Jimenez for appellee.

BAUTISTA ANGELO, J.:

Plaintiffs spouses seek to recover from defendant, a government-owned corporation, the sum of
P50,000 as damages, P5,000 as funeral expenses, and P11,000 as attorneys' fees, for the death of
their son Dominador Ong in one of the swimming pools operated by defendant.

Defendant admits the fact that plaintiffs' son was drowned in one of its swimming pools but avers
that his death was caused by his own negligence or by unavoidable accident. Defendant also avers
that it had exercised due diligence in the selection of, and supervision over, its employees and that it
had observed the diligence required by law under the circumstances.

After trial, the lower court found that the action of plaintiffs is untenable and dismissed the complaint
without pronouncement as to costs. Plaintiffs took the case on appeal directly to this Court because
the amount involved exceeds the sum of P50,000.

Defendant owns and operates three recreational swimming pools at its Balara filters, Diliman,
Quezon City, to which people are invited and for which a nominal fee of P0.50 for adults and P0.20
for children is charged. The main pool it between two small pools of oval shape known as the
"Wading pool" and the "Beginners Pool." There are diving boards in the big pools and the depths of
the water at different parts are indicated by appropriate marks on the wall. The care and supervision
of the pools and the users thereof is entrusted to a recreational section composed of Simeon
Chongco as chief, Armando Rule, a male nurse, and six lifeguards who had taken the life-saving
course given by the Philippine Red Cross at the YMCA in Manila. For the safety of its patrons,
defendant has provided the pools with a ring buoy, toy roof, towing line, saving kit and a resuscitator.
There is also a sanitary inspector who is in charge of a clinic established for the benefit of the
patrons. Defendant has also on display in a conspicuous place certain rules and regulations
governing the use of the pools, one of which prohibits the swimming in the pool alone or without any
attendant. Although defendant does not maintain a full-time physician in the swimming pool
compound, it has however a nurse and a sanitary inspector ready to administer injections or operate
the oxygen resuscitator if the need should arise.

In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a 14-year old high school
student and boy scout, and his brothers Ruben and Eusebio, went to defendant's swimming pools.
This was not the first time that the three brothers had gone to said natatorium for they had already
been there four or five times before. They arrived at the natatorium at about 1:45 p.m. After paying
the requisite admission fee, they immediately went to one of the small pools where the water was
shallow. At about 4:35 p.m., Dominador Ong told his brothers that he was going to the locker room in
an adjoining building to drink a bottle of coke. Upon hearing this, Ruben and Eusebio went to the
bigger pool leaving Dominador in the small pool and so they did not see the latter when he left the
pool to get a bottle of coke. In that afternoon, there were two lifeguards on duty in the pool
compound, namely, Manuel Abao and Mario Villanueva. The tour of duty of Abao was from 8:00 to
12:00 in the morning and from 2:00 to 6:00 in the afternoon, and of Villanueva from 7:30 to 11:30
a.m. and from 12:30 to 4:30 p.m. Between 4:00 to 5:00 that afternoon, there were about twenty
bathers inside the pool area and Manuel Abao was going around the pools to observe the bathers
in compliance with the instructions of his chief.

Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a bather by the name of
Andres Hagad, Jr., that somebody was swimming under water for quite a long time. Another boy
informed lifeguard Manuel Abao of the same happening and Abao immediately jumped into the big
swimming pool and retrieved the apparently lifeless body of Dominador Ong from the bottom. The
body was placed at the edge of the pool and Abao immediately applied manual artificial respiration.
Soon after, male nurse Armando Rule came to render assistance, followed by sanitary inspector
Iluminado Vicente who, after being called by phone from the clinic by one of the security guards,
boarded a jeep carrying with him the resuscitator and a medicine kit, and upon arriving he injected
the boy with camphorated oil. After the injection, Vicente left on a jeep in order to fetch Dr. Ayuyao
from the University of the Philippines. Meanwhile, Abao continued the artificial manual respiration,
and when this failed to revive him, they applied the resuscitator until the two oxygen tanks were
exhausted. Not long thereafter, Dr. Ayuyao arrived with another resuscitator, but the same became of
no use because he found the boy already dead. The doctor ordered that the body be taken to the
clinic.

In the evening of the same day, July 5, 1952, the incident was investigated by the Police Department
of Quezon City and in the investigation boys Ruben Ong and Andres Hagad, Jr. gave written
statements. On the following day, July 6, 1952, an autopsy was performed by Dr. Enrique V. de los
Santos, Chief, Medico Legal Division, National Bureau of Investigation, who found in the body of the
deceased the following: an abrasion on the right elbow lateral aspect; contusion on the right
forehead; hematoma on the scalp, frontal region, right side; a congestion in the brain with petechial
subcortical hemorrhage, frontal lobe; cyanosis on the face and on the nails; the lung was soggy with
fine froth in the bronchioles; dark fluid blood in the heart; congestion in the visceral organs, and
brownish fluid in the stomach. The death was due to asphyxia by submersion in water.
The issue posed in this appeal is whether the death of minor Dominador Ong can be attributed to the
negligence of defendant and/or its employees so as to entitle plaintiffs to recover damages.

The present action is governed by Article 2176 in relation to Article 2080 of the new Civil Code. The
first article provides that "whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damages done." Such fault or negligence is called quasi-delict.
Under the second article, this obligation is demandable not only for one's own acts or omissions but
also for those of persons for whom one is responsible. In addition, we may quote the following
authorities cited in the decision of the trial court:

"The rule is well settled that the owners of resorts to which people generally are expressly or
by implication invited are legally bound to exercise ordinary care and prudence in the
management and maintenance of such resorts, to the end of making them reasonably safe
for visitors" (Larkin vs. Saltair Beach Co., 30 Utah 86, 83 Pac. 686).

"Although the proprietor of a natatorium is liable for injuries to a patron, resulting from lack of
ordinary care in providing for his safety, without the fault of the patron, he is not, however, in
any sense deemed to be the insurer of the safety of patrons. And the death of a patron within
his premises does not cast upon him the burden of excusing himself from any presumption
of negligence" (Bertalot vs. Kinnare. 72 Ill. App. 52, 22 A. L. R. 635; Flora vs. Bimini Water
Co., 161 Cal. 495, 119 Pac. 661). Thus in Bertalot vs. Kinnare, supra, it was held that there
could be no recovery for the death by drowning of a fifteen-year boy in defendant's
natatorium, where it appeared merely that he was lastly seen alive in water at the shallow
end of the pool, and some ten or fifteen minutes later was discovered unconscious, and
perhaps lifeless, at the bottom of the pool, all efforts to resuscitate him being without avail.

Since the present action is one for damages founded on culpable negligence, the principle to be
observed is that the person claiming damages has the burden of proving that the damage is caused
by the fault or negligence of the person from whom the damage is claimed, or of one of his
employees (Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517). The question
then that arises is: Have appellants established by sufficient evidence the existence of fault or
negligence on the part of appellee so as to render it liable for damages for the death of Dominador
Ong?

There is no question that appellants had striven to prove that appellee failed to take the necessary
precaution to protect the lives of its patrons by not placing at the swimming pools efficient and
competent employees who may render help at a moment's notice, and they ascribed such
negligence to appellee because the lifeguard it had on the occasion minor Ong was drowning was
not available or was attending to something else with the result that his help came late. Thus,
appellants tried to prove through the testimony of Andres Hagad, Jr. and Ruben Ong that when
Eusebio Ong and Hagad, Jr. detected that there was a drowning person in the bottom of the big
swimming pool and shouted to the lifeguard for help, lifeguard Manuel Abao did not immediately
respond to the alarm and it was only upon the third call that he threw away the magazine he was
reading and allowed three or four minutes to elapse before retrieving the body from the water. This
negligence of Abao, they contend, is attributable to appellee.

But the claim of these two witnesses not only was vehemently denied by lifeguard Abao, but is
belied by the written statements given by them in the investigation conducted by the Police
Department of Quezon City approximately three hours after the happening of the accident. Thus,
these two boys admitted in the investigation that they narrated in their statements everything they
knew of the accident, but, as found by the trial, nowhere in said statements do they state that the
lifeguard was chatting with the security guard at the gate of the swimming pool or was reading a
comic magazine when the alarm was given for which reason he failed to immediately respond to the
alarm. On the contrary, what Ruben Ong particularly emphasized therein was that after the lifeguard
heard the shouts for help, the latter immediately dived into the pool to retrieve the person under
water who turned out to be his brother. For this reason, the trial court made this conclusion: "The
testimony of Ruben Ong and Andres Hagad, Jr. as to the alleged failure of the lifeguard Abao to
immediately respond to their call may therefore be disregarded because they are belied by their
written statements. (Emphasis supplied.)

On the other hand, there is sufficient evidence to show that appellee has taken all necessary
precautions to avoid danger to the lives of its patrons or prevent accident which may cause their
death. Thus, it has been shown that the swimming pools of appellee are provided with a ring buoy,
toy roof, towing line, oxygen resuscitator and a first aid medicine kit. The bottom of the pools is
painted with black colors so as to insure clear visibility. There is on display in a conspicuous place
within the area certain rules and regulations governing the use of the pools. Appellee employs six
lifeguards who are all trained as they had taken a course for that purpose and were issued
certificates of proficiency. These lifeguards work on schedule prepared by their chief and arranged in
such a way as to have two guards at a time on duty to look after the safety of the bathers. There is a
male nurse and a sanitary inspector with a clinic provided with oxygen resuscitator. And there are
security guards who are available always in case of emergency.

The record also shows that when the body of minor Ong was retrieved from the bottom of the pool,
the employees of appellee did everything possible to bring him back to life. Thus, after he was
placed at the edge of the pool, lifeguard Abao immediately gave him manual artificial respiration.
Soon thereafter, nurse Armando Rule arrived, followed by sanitary inspector Iluminado Vicente who
brought with him an oxygen resuscitator. When they found that the pulse of the boy was abnormal,
the inspector immediately injected him with camphorated oil. When the manual artificial respiration
proved ineffective they applied the oxygen resuscitator until its contents were exhausted. And while
all these efforts were being made, they sent for Dr. Ayuyao from the University of the Philippines who
however came late because upon examining the body he found him to be already dead. All of the
foregoing shows that appellee has done what is humanly possible under the circumstances to
restore life to minor Ong and for that reason it is unfair to hold it liable for his death.

Sensing that their former theory as regards the liability of appellee may not be of much help,
appellants now switch to the theory that even if it be assumed that the deceased is partly to be
blamed for the unfortunate incident, still appellee may be held liable under the doctrine of "last clear
chance" for the reason that, having the last opportunity to save the victim, it failed to do so.

We do not see how this doctrine may apply considering that the record does not show how minor
Ong came into the big swimming pool. The only thing the record discloses is that minor Ong
informed his elder brothers that he was going to the locker room to drink a bottle of coke but that
from that time on nobody knew what happened to him until his lifeless body was retrieved. The
doctrine of last clear chance simply means that the negligence of a claimant does not preclude a
recovery for the negligence of defendant where it appears that the latter, by exercising reasonable
care and prudence, might have avoided injurious consequences to claimant notwithstanding his
negligence. Or, "As the doctrine usually is stated, a person who has the last clear chance or
opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or the
negligence of a third person which is imputed to his opponent, is considered in law solely
responsible for the consequences of the accident." (38 Am. Jur. pp. 900-902)

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of
antecedent negligence in planting himself in the wrong side of the road. But as we have
already stated, the defendant was also negligent; and in such case the problem always is to
discover which agent is immediately and directly responsible. It will be noted that the
negligent acts of the two parties were not contemporaneous, since the negligence of the
defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these
circumstances, the law is that a person who has the last clear chance to avoid the impending
harm and fails to do so is chargeable with the consequences, without reference to the prior
negligence of the other party. (Picart vs. Smith, 37 Phil., 809)

Since it is not known how minor Ong came into the big swimming pool and it being apparent that he
went there without any companion in violation of one of the regulations of appellee as regards the
use of the pools, and it appearing that lifeguard Aba__o responded to the call for help as soon as
his attention was called to it and immediately after retrieving the body all efforts at the disposal of
appellee had been put into play in order to bring him back to life, it is clear that there is no room for
the application of the doctrine now invoked by appellants to impute liability to appellee..

The last clear chance doctrine can never apply where the party charged is required to act
instantaneously, and if the injury cannot be avoided by the application of all means at hand
after the peril is or should have been discovered; at least in cases in which any previous
negligence of the party charged cannot be said to have contributed to the injury. O'Mally vs.
Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2, P2d 1063. (A.L.R. Digest, Vol. 8, pp. 955-956)

Before closing, we wish to quote the following observation of the trial court, which we find supported
by the evidence: "There is (also) a strong suggestion coming from the expert evidence presented by
both parties that Dominador Ong might have dived where the water was only 5.5 feet deep, and in
so doing he might have hit or bumped his forehead against the bottom of the pool, as a
consequence of which he was stunned, and which to his drowning. As a boy scout he must have
received instructions in swimming. He knew, or have known that it was dangerous for him to dive in
that part of the pool."

Wherefore, the decision appealed from being in accordance with law and the evidence, we hereby
affirm the same, without pronouncement as to costs.

Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Concepcion, Reyes, J. B. L., Endencia and
Felix, JJ., concur.

G.R. No. L-3422 June 13, 1952

HIDALGO ENTERPRISES, INC., petitioner,

vs.
GUILLERMO BALANDAN, ANSELMA ANILA and THE COURT OF APPEALS, respondents.

Quisumbing, Sycip, Quisumbing and Salazar for petitioner.

Antonio M. Moncado for respondents.
BENGZON, J.:

This is an appeal by certiorari, from a decision of the Court of Appeals requiring Hidalgo Enterprises,
Inc. to pay Guillermo Balandan and his wife, damages in the sum of P2,000 for the death of their son
Mario.

It appears that the petitioner Hidalgo Enterprises, Inc. "was the owner of an ice-plant factory in the
City of San Pablo, Laguna, in whose premises were installed two tanks full of water, nine feet deep,
for cooling purposes of its engine. While the factory compound was surrounded with fence, the tanks
themselves were not provided with any kind of fence or top covers. The edges of the tanks were
barely a foot high from the surface of the ground. Through the wide gate entrance, which is
continually open, motor vehicles hauling ice and persons buying said commodity passed, and any
one could easily enter the said factory, as he pleased. There was no guard assigned on the gate. At
about noon of April 16, 1948, plaintiff's son, Mario Balandan, a boy barely 8 years old, while playing
with and in company of other boys of his age entered the factory premises through the gate, to take
a bath in one of said tanks; and while thus bathing, Mario sank to the bottom of the tank, only to be
fished out later, already a cadaver, having been died of "asphyxia secondary to drowning."

The Court of Appeals, and the Court of First Instance of Laguna, took the view that the petitioner
maintained an attractive nuisance (the tanks), and neglected to adopt the necessary precautions to
avoid accidents to persons entering its premises. It applied the doctrine of attractive nuisance, of
American origin, recognized in this Jurisdiction in Taylor vs. Manila Electric 16 Phil., 8.

The doctrine may be stated, in short, as follows: One who maintains on his premises dangerous
instrumentalities or appliances of a character likely to attract children in play, and who fails to
exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a
child of tender years who is injured thereby, even if the child is technically a trespasser in the
premises. (See 65 C.J.S., p. 455.)

The principle reason for the doctrine is that the condition or appliance in question although its danger
is apparent to those of age, is so enticing or alluring to children of tender years as to induce them to
approach, get on or use it, and this attractiveness is an implied invitation to such children (65 C.J.S.,
p. 458).

Now, is a swimming pool or water tank an instrumentality or appliance likely to attract the little
children in play? In other words is the body of water an attractive nuisance?

The great majority of American decisions say no.

The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as
well as natural, in the absence of some unusual condition or artificial feature other than the
mere water and its location.

There are numerous cases in which the attractive nuisance doctrine has not been held not to
be applicable to ponds or reservoirs, pools of water, streams, canals, dams, ditches, culverts,
drains, cesspools or sewer pools, . . . (65 C.J.S., p. 476 et seg. citing decisions of California,
Georgia, Idaho, Illinois, Kansas, Iowa, Louisiana, Miss., Missouri, Montana, Oklahoma,
Pennsylvania, Tennessee, Texas, Nebraska, Wisconsin.)

In fairness to the Court of Appeals it should be stated that the above volume of Corpus Juris
Secundum was published in 1950, whereas its decision was promulgated on September 30, 1949.
The reason why a swimming pool or pond or reservoir of water is not considered an attractive
nuisance was lucidly explained by the Indiana Appellate Court as follows:

Nature has created streams, lakes and pools which attract children. Lurking in their waters is
always the danger of drowning. Against this danger children are early instructed so that they
are sufficiently presumed to know the danger; and if the owner of private property creates an
artificial pool on his own property, merely duplicating the work of nature without adding any
new danger, . . . (he) is not liable because of having created an "attractive nuisance."
Anderson vs. Reith-Riley Const. Co., N. E., 2nd, 184, 185; 112 Ind. App., 170.

Therefore, as petitioner's tanks are not classified as attractive nuisance, the question whether the
petitioner had taken reasonable precautions becomes immaterial. And the other issue submitted by
petitioner that the parents of the boy were guilty of contributory negligence precluding recovery,
because they left for Manila on that unlucky day leaving their son under the care of no responsible
individual needs no further discussion.

The appealed decision is reversed and the Hidalgo Enterprises, Inc. is absolved from liability. No
costs.

Feria, Padilla, Tuason, Montemayor, and Bautista Angelo, JJ., concur.

Separate Opinions

PABLO, J., disidente:

La recurrente tiene dos estanques de agua, de nueve pies de profundidad, como anexos
indispensables a su fabrica de hielo; estan constuidos dentro de un solar que esta cercado pero con
una puerta de entrada siempre abierta en donde pasan libremente los coches que distribuyen hielo
y las personas que lo compran de la fabrica; cualquiera puede entrar sin distincion alguna, no hay
ningun guardia en la puerta que impida la entrada de cualquiera persona. A dichos dos entanques
tiene libre acceso el publico.

Es evidente que la recurrente debio haber cercado dichos estanques como medida ordinaria de
precaucion para que los ninos de corta edad no pueden entrar, tanto mas cuanto que los bordes de
esos estanques solo tienen un pie de altura la superficie del terreno. El cerco puesto en el
perimento del solar, con puerta continuamente abierta, no es suficiente medida para impedir que los
ninos puedan meterse en los entanques. Ese cerco con su puerta abierta es como un velo
transparente con que se cubre una mujer semidesnuda en un teatro, pica la curiosidad y atrae la
atencion del publico.

Los nios son curiosos por naturaleza y los de ocho aos no tienen perfecto conocimiento de las
cosas. Alucinados por la natural atraccion de las aguas, se meteran en ellas con peligro de sus
vidas, a menos que exista algo que les impida.

Voto con la confirmacion de la decision apelada.