PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. Present:

178322

- versus -

QUISUMBING, J., Chairperson, CARPIO MORALES, CHICO-NAZARIO,* BRION, and PERALTA,** JJ. Promulgated: March 4, 2009

GENEROSO ROLIDA y MORENO @ KA DAVID/KA RAQUEL, Appellant.

x-------------------------------------------------- x DECISION CARPIO MORALES, J.: Along with Alex Malabana alias Ka Aldrin, Rodelio Verdagera alias Ka Abel, Nelson Cay alias Ka Noel, and one Ka Marcel, Generoso Rolida y Moreno alias Ka David/Ka Raquel (appellant) was charged before the Regional Trial Court (RTC) of Gumaca, Quezon with Murder in an Information reading: xxxx That on or about the 27th day of August, 2001, at Barangay San Isidro Ilaya, Municipality of General Luna, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with high powered firearms, M-14 and M-16, conspiring and confederating together and mutually helping one another, with intent to kill, with treachery and evident premeditation and taking advantage of their superior strength, did then and there willfully, unlawfully and feloniously attack, assault and shoot with said firearms, one Froilan Roman y de Gala, thereby inflicting upon the latter multiple gunshot wounds on different parts of his body, which directly caused his death.1[1] xxxx Only appellant was arraigned, however, as his co-accused had remained at large and the trial court ordered the case archived as to them.2[2] Appellant pleaded not guilty.3[3]

Through the combined testimonies of Marilyn Roman (Marilyn), the widow of Froilan Roman and daughters Pamela Roman (Pamela) and Maryann Roman (Maryann), the prosecution established the following version:4[4] At around 8:45 p.m. of August 27, 2001, while the victim and his family were asleep, somebody kicked the door of their house open. Four armed men immediately entered and went straight to the place where the victim and Marilyn were sleeping. Other men surrounded the house as the four who entered tied the hands of the victim with a rope, hit him on the chest with a rifle, and pulled him outside by his hair. While kneeling and with one gun poked at his neck, the victim, then a member of a Citizens Armed Forces Geographical Unit (CAFGU) in General Luna, Quezon, begged for his life for the sake of his family. One of his assailants replied that the victim had taken one life, hence, he must pay it with his own. The victims family thereafter heard gunshots, and the victim fell on the ground lifeless. The armed men then fired two shots in the air, exclaiming Mabuhay! Tagumpay ang NPA! (Long live the triumphant NPA!) and hurriedly left. The victims family positively identified appellant as one of the victims assailants. Marilyn recognized appellant as he had no cover on his face, while Pamela and Maryann remembered him because of the scar on his face. Marciano Endiape (Endiape), allegedly a former member of the New Peoples Army (NPA), also testified that the victim was assassinated for allegedly having guided military operatives in a raid on an NPA camp, which resulted in the death of two NPA members and the loss of their firearms.5[5] He further stated that the killing of the victim was planned in a meeting held on August 20, 2001 at an NPA camp; and that appellant was one of those who attended the meeting and eventually left for the victims residence in Pidac, General Luna, Quezon on August 24, 2001.6[6] He went on to declare that those persons, including appellant, returned to the camp only on August 28, 2001, exultantly shouting, Tagumpay na naman ang NPA dahil may napatay na namang kalaban (The NPA is triumphant again as it just killed another enemy.)7[7] By the account of Dr. Constancia Mecija, Municipal Health Officer of General Luna, Quezon, her post-mortem examination of the victim showed that the cause of his death was severe hemorrhage secondary to multiple gunshot wounds.8[8] Upon the other hand, appellant, denying any knowledge of the incident, claimed that at about 8:35 p.m. on August 27, 2001, he was sleeping at his house with his mother in Don Juan Verceles, San Francisco, Quezon; 9[9] and that he did not know his co-accused Alex Malabana and the victim, as well as prosecution witnesses Pamela and Endiape.10[10]
4

10

Branch 61 of the Gumaca, Quezon RTC crediting the version of the prosecution, held that the killing was attended by treachery, conspiracy, and evident premeditation, thus: xxxx The fact that high powered guns were used by the accused as testified to by the witness Pamela Roman (April 22, 2004, p. 4), the attack was made in the stillness of the night, the attack was so sudden and unexpected at the time the victim was asleep and what more he was tied with a rope and hit with their long firearm on his chest before he was shot successively which caused his instant death show clearly that treachery attended manifestly the killing in this case. xxxx As treachery was conclusively established in this case, abuse of superiority of strength is hereby absorbed. xxxx [T]he act of accused showed their unity of purpose, joint design to kill the victim following a consciously adopted plan. Conspiracy having been established the act of one is considered the act of all. [People v. Abendan, 360 SCRA 126 (2001)] xxxx Evident premeditation appears to have been thoroughly and sufficiently established in the case at bench as shown from the testimony of Marcelino (sic) Endiape, a former active member of the NPA who formerly belongs to the group SYP Rivas Buenavista, Quezon headed by Ka Marcel. The court relied heavily on his testimony being in a position to have acquired full knowledge of the same having been with the accused at the time he was an active member of NPA. xxxx x x x The NPAs commissioned to undertake the execution of Froilan Roman, Ka Marcel, Ka Aldrin, Ka David, Ka Noel, and Ka Abel left Brgy. Malaya, General Luna on August 14, 2001 for Pidac, General Luna, Quezon precisely to kill the object their mission (sic) and in the evening of August 28, 2001 they returned to Brgy. Malaya from Brgy. Pidac, General Luna with jubilation and shouted Tagumpay na naman ang NPA dahil may napatay na namang kalaban. The evidence shows that there was sufficient lapse of time between the determination and the execution to allow the accused to reflect upon the consequences of their act. In this case, they determined to commit the crime on August 24, 2001 and the killing of Froilan Roman was made in the evening of August 27, 2001. Evidently, there was indeed sufficient time for the accused to reflect on the consequences of the act. The essence of premeditation is that the execution of the criminal act is preceded by cool thought and reflection to carry out the criminal intent during the space of time

sufficient to arrive at a calm judgment. [People v. Bibat, 290 SCRA 29 (1998)]11[11] (Underscoring supplied) The trial court thus convicted appellant of Murder, by Judgment of May 30, 2005, disposing as follows: WHEREFORE AND IN VIEW OF ALL THE FOREGOING, the court finds accused GENEROSO ROLIDA alias Ka David and alias Ka Raquel guilty beyond reasonable doubt of the crime of MURDER defined and penalized under Article 248 of the Revised Penal Code as amended by Republic Act No. 7659 and hereby sentencing (sic) him to suffer the penalty of DEATH. Accused is ordered to pay the heirs of Froilan Roman the amount of P50,000.00 as civil indemnity; P50,000.00 as moral damages, exemplary damages in the amount of P30,000.00. Accused is further ordered to pay the amount of P18,320.00 as actual damages. In so far as ALEX MALABANA alias Ka Aldrin, Rodelio Verdagera alias Ka Abel, Nelson Cay alias Ka Noel, and one alias Ka Manuel (sic) are concerned, who are presently at large, case is hereby ordered ARCHIVED until their arrest. Let an alias warrant of arrest be issued for their apprehension.12[12] In his brief filed with the Court of Appeals to which the case was elevated on automatic review,13[13] appellant argued that he was mistakenly identified by the victims family which did not have ample opportunity to observe the faces of the malefactors in view of the rapid turn of events, as well as the shock and panic that had overcome them; 14[14] and that his alibi was not improbable, the location of his residence being borne out by the records; and that he did not flee, unlike his co-accused, indicates his innocent conscience.15
[15]

The Solicitor General countered that there was no doubt as to the identity of appellant as one of the malefactors since Pamela and Maryann positively identified him through the scar on his left cheek;16[16] and that appellants alibi cannot prosper considering his failure to prove that it was physically impossible for him to have been at the scene of the crime at the time of its commission.17[17] By Decision dated March 5, 2007,18[18] the appellate court affirmed that of the trial court, with modification in that the penalty was reduced to reclusion perpetua pursuant to
11

12

13

14

15

16

17

18

Republic Act (RA) No. 9346, and the award of exemplary damages was lowered to P25,000.00.19[19] Thus it disposed: WHEREFORE, the judgment of the court a quo finding the accused guilty beyond reasonable doubt of the crime of murder qualified by treachery and with the aggravating circumstance of evident premeditation is hereby affirmed with modification in the sense that the penalty of DEATH is modified to Reclusion Perpetua pursuant to Republic Act 9346 which prohibits the imposition of the death penalty. The award of P30,000.00 as exemplary damages is likewise modified to P25,000.00. The rest of the awards are affirmed. The alias warrants of arrest for the apprehension of Alex Malabana alias Ka Aldrin, Rogelio Verdagera alias Ka Abel, Nelia Cay alias Ka Noel and one alias Ka Marcel stay.

Hence, this appeal. In separate manifestations, appellant and the Solicitor General informed that they were no longer filing supplemental briefs, their respective positions having been adequately discussed in the Briefs they had filed with the appellate court.20[20] In finding the existence of conspiracy, the trial and appellate courts found the collective acts of appellant and his cohorts before, during, and after the shooting of the victim as indicating the pursuit of a common design to kill, hence, the act of one is the act of all. The trial and appellate courts also found the deliberate employment of high-powered guns and nocturnity to have obviated any opportunity for the victim to defend himself, hence their appreciation of the presence of treachery which absorbed the circumstance of abuse of superior strength. Relying on the testimony of Endiape, both courts held that evident premeditation attended the killing, there having been a sufficient interval for cool thought and reflection between the time appellant and his group determined to commit the crime on August 24, 2001 when they left for the victims residence, and the time that they actually executed the planned attack on August 27, 2001. The trial and appellate courts thus found appellant guilty beyond reasonable doubt of Murder qualified by treachery and aggravated by evident premeditation.

This Court finds no compelling reason to rule otherwise. Parenthetically, the Court notes that appellant did not even present his mother to corroborate his claim of alibi.

19

20

With respect to the penalty, the Court finds the appellate courts imposition of reclusion perpetua to be in accord with the mandate of R.A. No. 9346.21[21] It bears to stress that appellant is not eligible for parole.22[22] As for the award of damages, the Court sustains the appellate courts awards of P50,000 as moral damages and P25,000 as exemplary damages, but increases its award of civil indemnity from P50,000 to P75,000, and awards temperate damages of P25,000 in lieu of the actual damages proven in the amount of P18,320. The award of P50,000 as moral damages is in order in view of the violent death of the victim and the resultant grief of his family.23[23] The award of exemplary damages of P25,000 is in order too, the crime having been committed with one or more aggravating circumstances.24[24] In line with prevailing jurisprudence, civil indemnity ex delicto is, however, increased to P75,000.25[25] And since the actual damages proven during the trial amount to less than P25,000, the same having totaled only P18,320, the award of temperate damages of P25,000 in lieu thereof is justified.26[26] WHEREFORE, the March 5, 2007 Decision of the Court of Appeals affirming that of Branch 61 of the Gumaca, Quezon RTC is MODIFIED in that the award of civil indemnity is INCREASED to P75,000; that temperate damages in the amount of P25,000 are AWARDED in lieu of actual damages; and that appellant is not eligible for parole. In all other respects, the challenged Decision is AFFIRMED. SO ORDERED. EUGENE C. FIRAZA, Petitioner, G.R. No. 179319 Present: YNARES-SANTIAGO,* J., CARPIO MORALES, Acting Chairperson, BRION, DEL CASTILLO, and ABAD, JJ. Promulgated: September 18, 2009

- versus -

PEOPLE OF THE PHILIPPINES, Respondent.

21

22

23

24

25

26

x-----------------------------------------------------------x DECISION CARPIO MORALES, J. Petitioner, appointed as a confidential agent of the National Bureau of Investigation (NBI), Caraga Regional Office on August 18, 1999, was issued a firearm and a mission to gather and report to the NBI such information as may be relevant to investigations undertaken by it. In his private capacity, petitioner served as manager for RF Communications in connection with which he dealt with Christopher Rivas, Provincial Auditor of Surigao del Sur, for the establishment of a Public Calling Office in the Municipality of Lianga, Surigao del Sur. On August 11, 2000, in the course of a meeting between petitioner and Rivas at the latters restaurant regarding the delivery of a defective machine for the Public Calling Office, a heated exchange ensued during which petitioner is alleged to have pointed a gun at Rivas. Petitioner was thereupon accosted by P/Insp. Alberto A. Mullanida, Acting Chief of Police of Lianga, Surigao del Sur and PO2 Nilo Ronquillo, who discovered that his permit to carry firearm outside residence had expired more than a month earlier or on July 5, 2000. Hence, a criminal complaint was filed against petitioner before the 6th Municipal Circuit Trial Court (MCTC) of Barobo-Lianga, Barobo, Surigao del Sur for UNATHORIZED CARRYING OF LICENCE [sic] FIREARM OUTSIDE RESIDENCE, the accusatory portion of which reads: That on or about the 11th day of August 2000 at about 4:00 oclock in the afternoon more or less in Poblacion, Municipality of Lianga, Province of Surigao del Sur Philippines and within the jurisdiction of this Honorable Court the above named accused, willfully, unlawfully, and feloniously possess [sic] one (1) unit Pistol Caliber 45 with serial number 670320 entered inside the residence of Christopher Rivas at Lianga, Surigao del Sur with expired license or permit to carry outside residence renewed [sic] from the government authority concerned. CONTRARY TO LAW. (Violation of RA 8294 as amended). 27[1] (Emphasis and underscoring supplied) Petitioner, denying that any argument occurred between him and Rivas, claimed that while he was explaining to Rivas the defect in the machine subject of their meeting, P/Insp. Mullaneda and PO2 Ronquillo apprehended him and seized his firearm tucked inside his shirt, even as he identified himself as an NBI agent; and that he was prevented from presenting a Mission Order dated July 26, 2000 issued to him by the NBI, to prove his authority to carry firearms outside of his residence, due to the coercive manner by which the two approached him. By Decision of February 20, 2003, the MCTC convicted petitioner, disposing as follows:

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WHEREFORE, Court finds accused Eugene C. Firaza GUILTY beyond reasonable doubt of the crime Unauthorized Carrying of Licensed Firearm Outside Residence, penalized under Section 1 of Republic Act 8294. Accused Eugene C. Firaza is hereby sentenced to an imprisonment of one (1) month and ten days of Arresto Mayor. SO ORDERED. In convicting petitioner, the trial court noted the following facts:

1.

That accuseds permit to carry firearms outside residence, has already expired when he was apprehended on August 11, 2000; That the Mission Order (Exhibit 4) was not presented or shown to the apprehending policemen on August 11, 2000; That accuseds Mission Order was not issued by the NBI Director or Assistant/Deputy Director or by Regional Director of Caraga Region; That accused is only a confidential agent and as such is not included in the regular plantilla of the NBI, nor is receiving regular compensation for the services he is rendering; When apprehended, accused was not in actual performance of alleged mission but on business trip.28[2] (Underscoring supplied)

2.

3.

4.

5.

On appeal, the Regional Trial Court upheld petitioners conviction. On petition for review, the Court of Appeals, by Decision of April 20, 2007, 29[3] affirmed petitioners conviction. Before this Court, petitioner raises the following issues:

a.

Whether or not Petitioner can be convicted of an offense different from that charged in the Complaint.

b. c.

Whether or not the burden of proving a negative element of an offense lies with the prosecution; and Whether or not the firearm seized from petitioner after an unlawful search without a warrant is inadmissible in evidence. (Underscoring supplied)

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Petitioner prefaces his arguments in support of his appeal by claiming that the Complaint charged him with illegal possession of firearms, hence, he cannot be convicted of carrying firearms outside of residence, the phrase in the Complaint reading with expired license or permit to carry outside residence . . . being merely descriptive of the alleged unlicensed nature of the firearm. Petitioner concludes that since he had authority to carry firearm, it was error to convict him. He cites the appellate courts following disquisition as crediting his defense that he had authority to carry firearms, viz: It must be stated at the outset that petitioner was charged of violation of RA 8294 or Unauthorized Carrying of Licensed Firearm Outside of Residence. His conviction by the courts below is based on their finding that although petitioner had a mission order which authorized him to carry the firearm issued to him, the same already expired as of July 26, 2000. We qualify. The courts below committed an error when they said that the authority of petitioner to carry firearm outside residence expired on July 26, 2000, hence when petitioner carried his issued firearm on 18 August 2000, he did so without authority. Mission Order No. 00352000 dated July 26, 2000 issued to petitioner allowed him to carry his issued firearm Pistol Cal. 45 with him, which mission order is good for sixty (60) days from issuance thereof.30[4] x x x (Italics in the original, emphasis and underscoring supplied) Petitioners argument fails. Section 6, Rule 110 of the Rules of Court provides: SEC. 6. Sufficiency of complaint or information. A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. When an offense is committed by more than one person, all of them shall be included in the complaint or information. (Emphasis and underscoring supplied) The allegations in a Complaint or Information determine what offense is charged. The alleged acts or omissions complained of constituting the offense need not be in the terms of the statute determining the offense, but in such form as is sufficient to enable a person of common understanding to know what offense is being charged as well as the qualifying and aggravating circumstances and for the court to pronounce judgment.31[5] The earlier-quoted Complaint alleged that the accused willfully, unlawfully and feloniously possess [sic] one (1) unit Pistol Cal. 45 with serial number 670320 [and] entered .
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. . the residence of Christopher Rivas at Lianga, Surigao del Sur with expired license or permit to carry outside residence.32[6] The words used to indicate or describe the offense charged that petitioner unlawfully carried his firearm outside his residence because he had no permit for the purpose are clear. They are self-explanatory. Petitioner cannot seriously claim that his constitutional right to be informed of the nature and cause of the accusation against him was violated. For the transcript of stenographic notes of the proceedings before the trial court shows that he, through his counsel, was duly informed of the nature of the case against him: Court: You intend to file a motion for investigation? Atty. Cadiz: [herein petitioners counsel] Yes, Your Honor. Court: On what ground? Atty. Cadiz: On the ground that based on the evidence that we presented, Your Honor, like counter-affidavit, it seems to be the ground for the further proceedings of this case because the case filed against the accused is merely unauthorized(d) carrying of firearms outside the residence, and the accused is covered by mission order and the evidence submitted, Your Honor, which we take that it is not necessary to prosecute this case, because this case is summary in nature, Your Honor. We will submit a necessary motion for reinvestigation of this case.33[7] (Emphasis and underscoring supplied)

It bears noting that petitioner does not challenge his having been found guilty of violating Section 1 of P.D. No. 1866 (DECREE CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE, DEALING IN, ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION OR EXPLOSIVES) as amended by R.A. No. 8294 which provides:

SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm or ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed.
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xxxx The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor. (Italics in the original; emphasis and underscoring supplied) Petitioner, however, justifies, his carrying of the firearm outside his residence with the 60-day July 26, 2000 Mission Order issued to him by the NBI. Petitioner is mistaken. Permit to carry firearm is not the same as permit to carry licensed firearm outside ones residence. Under the Implementing Rules and Regulations of P.D. No. 1866, a Mission Order is defined as a written directive or order issued by government authority as enumerated in Section 5 hereof to persons who are under his supervision and control for a definite purpose or objective during a specified period and to such place or places as therein mentioned which may entitle the bearer thereof to carry his duly issued or licensed firearms outside of residence when so specified therein. The Mission Order issued to petitioner authorized him to carry firearms in connection with confidential (illegible) cases assigned to [him]. Admittedly, petitioner was at Rivas restaurant in connection with a private business transaction. Additionally, the Mission Order did not authorize petitioner to carry his duly issued firearm outside of his residence. AT ALL EVENTS, Sayco v. People,34[8] citing Section 6(a) of The Implementing Rules and Regulations of P.D. No. 1866 and Memorandum Circular No. 8 dated October 16, 1986 issued by the Department (then Ministry) of Justice, should put to rest any nagging doubts on the liability of petitioner, a confidential civilian agent who was not shown to be in the regular plantilla of the NBI. First, special or confidential civilian agents who are not included in the regular plantilla of any government agency involved in law enforcement or receiving regular compensation for services rendered are not exempt from the requirement under P.D. No. 1866, as amended by R.A. No. 8294, of a regular license to possess firearms and a permit to carry the same outside of residence. xxxx Third, said special or confidential civilian agents do not qualify for mission orders to carry firearms (whether private-owned or government-owned) outside of their residence. x x x x (Italics in the original; underscoring supplied) As for petitioners claim that he was searched without a warrant to thus render the firearm seized inadmissible in evidence, the same fails. For even assuming arguendo that, as claimed by petitioner, his firearm was tucked inside his shirt, the plain view doctrine, of which the following requirements which must concur, viz: (1) the law enforcement officer has a prior justification for the intrusion, (2) the
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discovery of the evidence in plain view is inadvertent, and, (3) the illegality of the evidence observed in plain view is apparent to the apprehending officer,35[9] justified the intervention by the police officers in petitioners and Rivas heated arguments in the course of which they noticed the suspicious bulging object on petitioners waist to draw them to check what it was. WHEREFORE, the Petition for Review is DENIED. SO ORDERED.

G.R. No. 176364

September 18, 2009

JUANITO R. RIMANDO, Petitioner, vs. COMMISSION ON ELECTIONS and NORMA O. MAGNO, Respondents. DECISION LEONARDO-DE CASTRO, J.: Before the Court is a petition for certiorari under Rule 65 of the Rules of Court with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction to reverse and set aside the following issuances of the Commission on Elections (COMELEC) En Banc: 1) Resolution1 promulgated on October 11, 2005 and 2) Resolution2 promulgated on January 5, 2007 in Election Offense (E.O.) Case No. 01-130 for Violation of the Omnibus Election Code. The first assailed Resolution granted private respondents Motion for Reconsideration and directed the COMELECs Law Department to file the proper information against petitioner for violation of Article XXII, Section 261, paragraph (s) of the Omnibus Election Code, while the second Resolution denied the petitioners motion for reconsideration. The factual antecedents: On July 13, 2001, herein private respondent lodged a Complaint3 with the COMELEC, Office of the Provincial Election Supervisor, Santa Cruz Laguna, accusing Jacinto Carag, Jonry Enaya and herein petitioner Juanito R. Rimando of violating Section 2, paragraph (e) and Section 3, paragraph (d) of COMELEC Resolution No. 33284 in relation to Section 261, paragraph (s) of the Omnibus Election Code5 and Section 32 of Republic Act (R.A.) No. 7166.6 The Complaint included the following narration of facts:7 That on or about February 27, 2001, and/or during the election period from January 2, 2001 to June 13, 2001, in Quezon City and Santa Rosa, Laguna, and within the jurisdiction of this Honorable Commission, xxx JUANITO R. RIMANDO, being then the President and General Manager of the Illustrious Security and Investigation Agency, Inc. despite the COMELEC denial on February 19, 2001 of his/its application for a Firearms & Other Deadly Weapons Ban Exemption, in conspiring with one another, did then and there, willfully and unlawfully, allow, permit and/or sanction his/its SECURITY GUARDS JACINTO CARAG AND JONRY ENAYA, to work as such as they in fact unlawfully and willfully did at the Santa Rosa Homes, Santa Rosa, Laguna, using 12 GA with Firearms License Nos. 0002946J0048708 and 0002946J00478992, knowing fully well that they had no prior written COMELEC authority to
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do so under said Section 2, paragraph e and Section 3, paragraph d COMELEC RESOLUTION 3328; that on February 27, 2001, respondent-Security Guard JACINTO CARAG, without any justifiable cause, with intent to kill, taking advantage of nighttime, with treachery and use of firearm, did then there, willfully, feloniously and unlawfully shoot to death with a shotgun JONATHAN MAGNO, a 19-year old unarmed and defenseless nautical student in his school uniform that said respondent-Security Guard CARAG immediately fled from the scene of the crime and is still at large, and that the fatal weapon though recovered by the aforenamed agency has not yet been surrendered by said respondent RIMANDO to the police authorities, to the damage and prejudice of the heirs of said victim represented by the undersigned mother. xxx xxx xxx In his Counter-Affidavit,8 petitioner denied having violated COMELEC Resolution No. 3328 and averred that on the day of the shooting incident, security guards Carag and Enaya were within the vicinity of Sta. Rosa Homes in Santa Rosa, Laguna, where they were assigned to provide security to the residents thereof and provided with licensed firearms which they never brought outside the subdivision. Attached to his Counter-Affidavit was Memorandum 31-20009 of the Security Agencies and Guards Supervision Division, Civil Security Group, PNP, which petitioner contended only prohibited private security agencies, company security forces, government security forces and their security guards from bearing guns outside the immediate vicinity of their places of work without written authority from the COMELEC. In a Resolution10 dated October 8, 2001, the Provincial Election Supervisor of Santa Cruz, Laguna, dismissed private respondents complaint against petitioner and his security guards based on a finding that the licensed firearms were carried and used by security guards Enaya and Carag within their place of work, for which no exemption and/or permit was needed in accordance with Section 2(e) of COMELEC Resolution No. 3328. Therefrom, private respondent Magno appealed11 to the COMELEC at Intramuros, Manila. Citing Section 3(d) of COMELEC Resolution No. 3328, she argued that prior written authority from the COMELEC was necessary before firearms could legally be carried even in the place of assignment during the election period. On May 6, 2002, the COMELEC En Banc rendered a Resolution12 affirming the dismissal of the complaint against security guards Jonry Enaya and Jacinto Carag, but directing its Law Department to file the proper information against petitioner Juanito Rimando for violation of Article XXII, Section 261, paragraph (s) of the Omnibus Election Code. In said Resolution, the COMELEC En Banc, noting the "seeming" conflict between Section 2(e) and Section 3(d) of COMELEC Resolution No. 3328, interpreted Section 261(s) of the Omnibus Election Code as requiring a permit from the Commission before the security guards of a security agency can bear firearms in their place of assignment during the election gun ban. Moreover, the COMELEC found that as President and General Manger of the security agency, it was petitioners responsibility to apply for such a permit from the COMELEC. Thus, the COMELEC ruled in its May 6, 2002 Resolution:13 As President and General Manager, respondent Rimando is aware of this requirement as shown in the records that he actually applied for an exemption from the Committee on Firearms and Security Personnel of the Commission. However, said application was denied on the ground that it lacked the endorsement of the CSG Director as evidenced by the recommendations made by the Law Department. xxx xxx xxx We therefore hold respondent Rimando liable for violation of the COMELEC Gun Ban in his capacity as the President and General Manager of the agency. His liability falls squarely on his failure to secure a permit from the Commission as provided under the supplementary statement, "Provided further, That in the last case prior written approval of the Commission

shall be obtained." This supplemental provision explicitly reveals the role of a security agency head in the procurement of COMELEC permit delineating his responsibility over his subordinates who only perform their duties as mandated of them by the agency. It would be a mockery of justice if by reason of respondent Rimandos failure to secure a permit from the COMELEC all security guards employed in his agency, inclusive of herein respondents Carag and Jacinto, be charged with violation of the COMELEC Gun Ban. This principle on the criminal liability of managers of security agencies and their employees has been laid down in Cuenca vs. People of the Philippines (G.R. No. L-27586, June 26, 1970). In said case, the Supreme Court absolved the security guard of the crime of illegal possession of firearms and instead ordered the prosecution of the security guards agencys manager for his failure to acquire the necessary permit for the firearms used by his agency. xxx xxx xxx Petitioner filed a Motion for Reconsideration14 contending that 1) the aforesaid Resolution went beyond the scope of the law when it held petitioner, as President of the security agency, criminally liable for an act that was not prohibited under Section 261 (s) of the Omnibus Election Code; 2) there was no conflict between Sections 2 and 3 of COMELEC Resolution No. 3382 and if ever there was, the same should be resolved in his favor since penal laws were construed strictly against the State and in favor of the accused; 3) the application for exemption filed by petitioners security agency with the COMELEC through the PNP-SAGD was for the authority to transport firearms and not to bear arms inside or within the vicinity of the place of work of petitioners security personnel; and 4) since no election offense was committed, the filing of a criminal case against petitioner was unwarranted and contrary to law. In its Resolution15 dated January 30, 2004, the COMELEC En Banc granted petitioners motion for reconsideration and accordingly reversed and set aside its May 6, 2002 Resolution with the following ratiocination: "Section 261. Prohibited Acts. The following shall be guilty of an election offense: xxx (s) Wearing of uniforms and bearing arms.- During the campaign period, on the day before and on election day, any member of x x x [a] privately-owned or operated security, investigative, protective or intelligence agencies, "who x x x bear arms outside the immediate vicinity of his place of work; Provided, That this prohibition shall not apply x x x when guarding private residences, buildings or offices; Provided, further, that in the last case prior written approval of the Commission shall be obtained. Xxx" The aforequoted provision lays down the following parameters for its application, to wit: 1. Bearing of firearms beyond the immediate vicinity of ones place of work is prohibited; 2. One may carry his firearm beyond the immediate vicinity of his place of work when he is guarding the residence of private persons or private residences or offices provided he has prior written authority from the Comelec. The confusion in the interpretation of this proscription lies in the peculiar circumstances under which security guards perform their duties. There are security guards hired to escort

individuals. Since they are mobile, their place of work cannot be determined with exactitude hence, the need for an authority from the Comelec for them to carry their firearms. There are also guards hired to secure the premises of offices, or residences. And because these offices adjoin other offices or that these residences adjoin other houses, the actual place of work or its immediate vicinity cannot be fixed with ease, there is also a need for these guards to secure authority from the Comelec. Lastly, there are guards assigned to secure all the houses in a subdivision, or all offices in one compound, or all factories within a complex, or all stores within a mall. In this case, the place of work of the guards therein detailed can be easily determined by the visible boundaries. And because the place of work can be determined, the Gun Ban exemption is required only when the firearms are brought outside said subdivision, or compound, or complex, or mall. The following provisions of Comelec Resolution No. 3328 which is the Rules and regulations governing the Bearing of Firearms during the election period for the May 2001 elections should likewise be noted: "Sec. 2. Prohibitions During the election period from Jan. 2 to June 13, 2001, it shall be unlawful for xxx xxx (e) Any members of xxx privately owned or operated security, investigative, protective or intelligence agencies to bear firearms outside the immediate vicinity of his place of work xxx xxx "Sec. 3. Exceptions The provisions in Sec. 2 hereof shall not apply in the following instances: xxx (d). Members of x x x privately owned or operated security, investigative, protective or intelligence agencies in the specific area of their assignment of their duties with prior written authority from the Commission." Interpreting the provisions aforequoted in relation to this case, we arrive at the following important points: 1. One does not need authority from the Commission when the firearm is carried within the immediate vicinity of his place of work; 2. If his place of work cannot be determined but he has an assignment to carry out in accordance with his duty, authority from the Commission is required. In the instant case, the shooting incident happened within the premises of Sta. Rosa Homes, a subdivision being guarded by the security agency headed by the respondent. It is very clear therefore that the carrying of firearm was done within the premises of the guards place of work. Under the law, the act is exempted from the Gun Ban rule. Laws which are penal in nature, like Section 261 of the Omnibus Election Code, should be interpreted liberally in favor of respondents. xxx While it is our duty to conduct preliminary investigation for election offenses and that this kind of investigation only requires

substantial evidence, the Commission must carry out this task prudently to the end that persons are not unnecessarily dragged into court hearings. Furthermore, we have already dismissed the case against the security guards. In the interest of justice, we also have to dismiss the case against the head of their security agency. 16 Private respondent filed a motion for reconsideration17 of the January 30, 2004 Resolution. In the herein first assailed Resolution18 dated October 11, 2005, the COMELEC En Banc rendered judgment, thus: WHEREFORE, complainants Motion for Reconsideration is hereby GRANTED, and the Resolution of the Commission promulgated on 30 January 2004 is hereby RECONSIDERED. The Law department is hereby directed to file the proper information against respondent Ret. Brig. Gen. JUANITO RIMANDO for violation of Article XXII, Section 261, paragraph (s) of the Omnibus Election Code. The Law Department is further ORDERED to ensure the effective prosecution thereof. SO ORDERED.19 In again changing its disposition of this case, the COMELEC En Banc explained:20 The focal issue involved in the instant case is whether or not respondent Rimando violated the COMELEC Gun Ban enforced during the 2001 election period. To settle the issue once and for all, We deem it proper to spell out the elements of the offense provided for in Section 261 (s) of the Omnibus Election Code, to wit: (1) The offender is a member of security or police organization of government agencies, commissions, councils, bureaus, offices or government-owned or controlled corporations, or privately owned or operated security, investigative, protective or intelligence agencies; (2) He wears his uniform or uses his insignia, decorations or regalia, or bear arms outside the immediate vicinity of his place of work; (3) That he committed the same during the campaign period, on the day before election day, or on election day; (4) The offender does not fall under any of these exceptions: 4.1. He is in pursuit of a person who has committed or is committing a crime in the premises he is guarding; 4.2. He is escorting or providing security for the transport of payrolls, deposits or other valuables; 4.3. He is guarding the residence of private persons or guarding private residences, buildings or offices; Provided, that prior written approval of the Commission shall be obtained. The situation subject of this case falls within sub-paragraph 4.3. above.

Simply put, one way of committing the offense of violation of the gun ban is when the offender is in possession of a gun while guarding the residence of private persons, or guarding private residences, buildings or offices, without the necessary written approval or permission from the Commission. The above interpretation of the law is consistent with Section 2, paragraph (e) and Section 3, paragraph (d) of Resolution No. 3328. xxx There is therefore no question that a violation of the gun ban was indeed committed. The only remaining issue is whether or not respondent Rimando can be held liable therefor. There is no dispute that the security agency concerned, as represented by respondent Rimando, is required by law to secure the necessary permit from the Commission. In fact, the records show that the said agency represented by respondent Rimando did in fact apply for exemption from the gun ban, but the same was denied for failure to comply with all the requirements. Can respondent Rimando be held criminally liable for such failure to secure the necessary exemption from the gun ban? It is Our studied opinion that the answer is in the affirmative. In the case of Cuenca vs. People of the Philippines, G.R. No. L-27586, June 26, 1970, the Supreme Court ruled that Appellant security guard of the Bataan Veterans Security Agency, which was duly licensed to operate as such security agency, cannot be held guilty of the crime of illegal possession of firearm and ammunitions owing to the failure of the owner, manager and/or operator of the said security agency to comply with his duty to obtain such license before he got said firearm and ammunitions and delivered the same to his employee, herein appellant. xxx The owner, manager and/or operator of the security agency who failed to secure the requisite license in the case at bar, Jose Forbes, as the owner and operator of the Bataan Veterans Security Agency should be prosecuted for illegal possession of firearms and/or such other crime as may have been committed in consequence of the breach of the laws and regulations regarding the operation of a security agency and use and issuance of firearms and ammunitions. Petitioner moved for reconsideration of the October 11, 2005 Resolution. In its herein second impugned Resolution21 promulgated on January 5, 2007, the COMELEC En Banc emphasized that in light of the peculiar circumstances surrounding the case, it was ruling pro hac vice i.e. its ruling in the instant case should not be taken as a precedent for future cases of similar nature, but only as a ruling with regard to the herein case and denied petitioners Motion for Reconsideration, to wit:221avvphi1 WHEREFORE, premises considered, the Commission (en banc) RESOLVED, as it is hereby RESOLVES, to DENY the instant Motion for Reconsideration for LACK OF MERIT. ACCORDINGLY, we uphold the October 11, 2005 en banc Resolution as our FINAL Resolution in the instant case. The Law Department (this Commission) is hereby DIRECTED to file the proper information against Ret. Brig. Gen. JUANITO R. RIMANDO for violation of Article XXII, Section 261 paragraph (s) of the Omnibus Election Code and other pertinent election laws.

The Law Department (this Commission) is further ORDERED to ensure the effective prosecution thereof. SO ORDERED.23 Ascribing to public respondent COMELEC En Banc grave abuse of discretion and/or ruling without or in excess of jurisdiction for rendering the assailed Resolutions dated October 11, 2005 and January 5, 2007, petitioner has come to us for relief on the following grounds:24 I PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION AND/OR WITHOUT OR IN EXCESS OF JURISDICTION IN MAKING CRIMINAL AN ACT OF BEARING ARMS WITHIN THE IMMEDIATE VICINITY OF THE PLACE OF WORK WITHOUT COMELEC AUTHORITY, EVEN WHEN IT IS CLEARLY NOT MADE SO UNDER SECTION 261(s) OF THE OMNIBUS ELECTION CODE. II ASSUMING ARGUENDO THAT THE ACT CONSTITUTE AN ELECTION OFFENSE, NEVERTHELESS, PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION AND/OR WITHOUT OR IN EXCESS OF JURISDICTION IN HOLDING PETITIONER CRIMINALLY LIABLE FOR THE ACTS OF OTHER PERSONS, I.E., THE SECURITY GUARDS WHO WERE THE ONES WHO PERSONALLY CARRIED THE FIREARMS, JUST BECAUSE PETITIONER WAS THEN THE HEAD OF THE SECURITY AGENCY CONCERNED, WHEN IT IS NOT CLEARLY MADE SO UNDER SECTION 261 (s) OF THE OMNIBUS ELECTION CODE. III PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION AND/OR WITHOUT OR IN EXCESS OF JURISDICTION IN DISREGARDING THE TIME-HONORED DOCTRINE OF "NULLUM CRIMEN, NULLA POENA SINE LEGE." In its Comment,25 private respondent averred that the resolutions of the COMELEC En Banc, being the government office principally charged with the enforcement of the Omnibus Election Code, should be given full faith and credit. The petition is impressed with merit. Public respondents interpretation of Section 261 (s) of the Omnibus Election Code to the effect that there was a violation of the election gun ban in this case because of the absence of a permit from the COMELEC to carry firearms within the place of work was without basis in law. Section 261 (s) of the Omnibus Election Code reads: Section 261. Prohibited Acts. The following shall be guilty of an election offense: xxxx (s) Wearing of uniforms and bearing arms.- During the campaign period, on the day before and on election day, any member of security or police organization of government agencies, commissions, councils, bureaus, offices or government-owned or controlled

corporations or privately-owned or operated security, investigative, protective or intelligence agencies, who wears his uniform or uses his insignia, decorations or regalia, or bears arms outside the immediate vicinity of his place of work; Provided, That this prohibition shall not apply when said member is in pursuit of a person who has committed or is committing a crime in the premises he is guarding; or when escorting or providing security for the transport of payrolls, deposits, or other valuables; or when guarding the residence of private persons or when guarding private residences, buildings or offices; Provided, further, that in the last case prior written approval of the Commission shall be obtained. The Commission shall decide all applications for authority under this paragraph within fifteen days from the date of the filing of such application. (Emphasis ours) A perusal of Section 261 (s) in its entirety would show that, as a rule, the bearing of arms by a member of security or police organization of a government office or of a privately owned security agency outside the immediate vicinity of ones place of work is prohibited. Implicitly, the bearing of arms by such person within the immediate vicinity of his place of work is not prohibited and does not require prior written approval from the Commission. However, Section 261 (s) also lays down exceptions to this rule and states that the general prohibition shall not apply in three instances: (a) when any of the persons enumerated therein is in pursuit of another person who has committed or is committing a crime in the premises the former is guarding; (b) when such person is escorting or providing security for the transport of payrolls, deposits, or other valuables; and (c) when he is guarding private residences, buildings or offices. It is only in the case of the third exception that it is provided that prior written approval from the COMELEC shall be obtained. In the case at bar, the cause of the confusion appears to be the fact that the security guards who were being charged with violation of the election gun ban were bearing firearms within the immediate vicinity of their place of work, but their place of work happened to be a residential subdivision where they were guarding the residences of private persons. Indeed, this seeming conflict between the general rule (which allows the bearing of arms within the immediate vicinity of the security personnels place of work) and the exception (which states that prior written approval from the COMELEC is necessary when security personnel are guarding private residences or offices) can be harmonized if we interpret the exceptions as pertaining to instances where the security personnel are outside the immediate vicinity of their place of work or where the boundaries of their place of work cannot be easily determined. Applying this interpretation to the case at bar, prior written approval from the COMELEC is only required when a member of a security agency is guarding private residences outside the immediate vicinity of his place of work, or where the exact area of his assignment is not readily determinable. Verily, the correct interpretation of Section 261 (s) is found in the January 30, 2004 Resolution of the COMELEC En Banc which held:26 [Section 261 (s) of the Omnibus Election Code] lays down the following parameters for its application, to wit: 1. Bearing of firearms beyond the immediate vicinity of ones place of work is prohibited; 2. One may carry his firearm beyond the immediate vicinity of his place of work when he is guarding the residence of private persons or private residences or offices provided he has prior written authority from the Comelec.

The confusion in the interpretation of this proscription lies in the peculiar circumstances under which security guards perform their duties. There are security guards hired to escort individuals. Since they are mobile, their place of work cannot be determined with exactitude hence, the need for an authority from the Comelec for them to carry their firearms. There are also guards hired to secure the premises of offices, or residences. And because these offices adjoin other offices or that these residences adjoin other houses, the actual place of work or its immediate vicinity cannot be fixed with ease, there is also a need for these guards to secure authority from the Comelec. Lastly, there are guards assigned to secure all the houses in a subdivision, or all offices in one compound, or all factories within a complex, or all stores within a mall. In this case, the place of work of the guards therein detailed can be easily determined by the visible boundaries. And because the place of work can be determined, the Gun Ban exemption is required only when the firearms are brought outside said subdivision, or compound, or complex, or mall. (Emphasis ours) Indeed, the aforesaid interpretation would also harmonize Sections 2(e) and 3(d) of COMELEC Resolution No. 3328, which pertinently provide: Sec. 2. Prohibitions During the election period from Jan. 2 to June 13, 2001, it shall be unlawful for: xxxx e) Any member of xxx privately owned or operated security, investigative, protective or intelligence agencies to bear firearms outside the immediate vicinity of his place of work; xxx xxxx Sec. 3. Exceptions The prohibitions in Section 2 hereof shall not apply in the following instances: xxxx d). Members of xxx privately owned or operated security, investigative, protective or intelligence agencies in the specific area of their assignment of their duties with prior written authority from the Commission. The exemption also applies to these personnel when: xxx 3) Guarding private residence, buildings or offices with prior written authority of the Commission; xxx x x x (Emphasis supplied) From the foregoing provisions of COMELEC Resolution No. 3328, one of the prohibited acts is for a member of a privately owned or operated security agency to bear firearms outside the immediate vicinity of his place of work. Such prohibition shall not apply 1) when the member of the security agency is in the actual performance of his duty in the specific area of his assignment with prior written authority from the Commission, and 2) when such member is guarding private residences, buildings or offices with prior written authority from the

Commission. However, these two instances presuppose that the member of the security agency was undertaking his duties in such a manner that the boundaries of his place of work cannot be determined with exactitude. This was the interpretation of COMELEC Resolution No. 3328 adopted in the same January 30, 2004 Resolution of the COMELEC En Banc. To quote:27 1. One does not need authority from the Commission when the firearm is carried within the immediate vicinity of his place of work; 2. If his place of work cannot be determined but he has an assignment to carry out in accordance with his duty, authority from the Commission is required. Here, it is undisputed that security guards Carag and Enaya were bearing licensed firearms while performing their assigned task as guards inside the subdivision, which was their place of work. That being the case, there was no need to secure a written authority from the COMELEC under Section 261(s) of the Omnibus Election Code. Hence, there was no violation at all of that particular provision. We, thus, concur with petitioner that he did not commit an election offense on February 27, 2001, the day the shooting incident happened within the premises of Sta. Rosa Homes at Santa Rosa, Laguna. To begin with, under Section 261(s) of the Omnibus Election Code, the offender is, among others, a member of a privately owned or operated security, investigative, protective or intelligence agency, who either (a) wears his uniform or uses his insignia, decorations or regalia, or (b) bears arms outside the immediate vicinity of his place of work during the election period, except under certain circumstances or when authorized by the COMELEC to do so. Ineluctably, such circumstances can only apply to security guards Enaya and Carag but not to petitioner. Petitioner should not be made responsible for the acts of another, more so, when the law does not make him expressly so responsible. In United States v. Abad Santos,28 it was explicitly held that: Courts will not hold one person criminally responsible for the acts of another, committed without his knowledge or consent, unless there is a statute requiring it so plain in its terms that there is no doubt of the intention of the Legislature. Criminal statutes are to be strictly construed. No person should be brought within their terms who is not clearly within them, nor should any act be pronounced criminal which is not clearly made so by the statute. (Emphasis ours) We likewise held in People v. Deleverio that:29 It is a basic rule of statutory construction that penal statutes are to be liberally construed in favor of the accused. Courts must not bring cases within the provision of a law which are not clearly embraced by it. No act can be pronounced criminal which is not clearly made so by statute; so, too, no person who is not clearly within the terms of a statute can be brought within them. Any reasonable doubt must be resolved in favor of the accused. (Emphasis Ours) It may not be amiss to point out that in order to buttress its ruling regarding petitioners liability for failing to secure a permit, the COMELEC En Banc, in its October 11, 2005 Resolution, found that petitioner, as the representative of the security agency concerned, was aware that an exemption from the COMELEC must necessarily be obtained. True, petitioner applied for an exemption from the gun ban, but as revealed in petitioners

security agencys Letter attached to its Application for Exemption,30 the request for exemption involved the transport and conveyance of licensed firearms and ammunitions, which were integral to the conduct of the security agencys business and not for the bearing of arms within the place of work of the security guards. Evidently, petitioner did not see the need to apply for an exemption for his security guards, considering that in a memorandum guideline issued by the Security Agencies and Guards Division, PNP-SAGD, what was prohibited, among others, was to bear guns outside the immediate vicinity of the place of work. Pertinently, Memorandum 31-200031 states: Guidelines ReCOMELEC GUN BAN During Election Period (December 12, 2000) 1. References: a. Provisions on Omnibus election code b. COMELEC Resolution Nos. 3258 dated September 28, 2000 and 3328 dated November 20, 2000. 2. xxx The following circumstances are prohibited, unless with written authority from COMELEC: xxx b. Detailed security personnel of PSAs//CSFs/GSFs and their security guards/personnel are prohibited to bear guns outside the immediate vicinity of their place of work. xxx (Emphasis ours) Even assuming for the sake of argument that Section 261(s) required petitioners security agency to secure prior written approval from the COMELEC for its security guards to bear arms in their place of work (which was a residential subdivision), the failure of the President or General Manager of the security agency to secure such approval is not itself defined as an election offense. What is punished or prohibited under Section 261(s) is merely the bearing of arms by a member of a security agency outside the immediate vicinity of his place of work without the approval of the COMELEC as required under particular circumstances. To put it alternatively, the last proviso in Section 261(s) is not a penal provision. Said proviso reads: xxx Provided further that in the last case, prior written approval of the Commission shall be obtained.xxx A penal law, as defined by this Court, is an act of the legislature that prohibits certain acts and establishes penalties for its violation. It also defines crime, treats of its nature and provides for its punishment.32 Here, the abovequoted proviso does not prohibit certain acts or provide penalties for its violation; neither does it describe the nature of a crime and its punishment. Consequently, the abovequoted phrase cannot be considered a penal provision.a1f

Moreover, even if we read Section 3(d) of COMELEC Resolution No. 3328 as requiring members of private security agencies to secure prior written authority from the COMELEC to bear arms even within the vicinity of their places of work and we assume that the COMELEC may validly do so despite the fact that such authorization is not required under Section 261(s) of the Omnibus Election Code, but rather an added regulatory measure, the same is likewise not a penal provision. At most, it is an administrative requirement to be complied with by the concerned persons. As aptly opined by Commissioner Romeo A. Brawner in his Dissent to the assailed January 5, 2007 Resolution:33 xxx The requirement to secure the Commission's permit to secure exemption from the gun ban is in its present formulation no more than an administrative process described in the law. If this Commission believes that it is necessary to criminalize the failure to secure its approval, then representation should be made for such purpose. (Emphasis ours) Lastly, the COMELECs reliance on Cuenca v People34 in its October 11, 2005 Resolution to hold petitioner criminally liable is plainly misplaced. Commissioner Brawner in his Dissent properly distinguished Cuenca from the present case and we quote:35 One. What is involved in the case of Cuenca was a simple case of illegal possession of firearm totally unrelated to election while the case at bench is a charge for violation of an election law. Two. The operative act constituting the offense found by the Supreme Court was the omission of the security agency headed by Jose Forbes to secure a license for the firearm he issued to his security Guard Ernesto Cuenca. While in the present case, there is no dispute at all that the firearms issued by respondent Rimando to his security guards were duly licensed. Three. The accused in Cuenca was the security guard and not the security agency head while in this case, the remaining respondent is the head of the security agency.1avvph!1 Four. The issue in Cuenca was whether the security guard was in possession of a licensed firearm or not while the issue in this case is whether the head of the agency who failed to secure a permit for exemption from the Commission is guilty of an election offense or not. It may likewise be noted that mere possession of unlicensed firearms is already punishable by statute as a crime. Hence, the owner, manager or operator of the security agency that obtains unlicensed firearms and issues the same to security guards in its employ is undeniably criminally liable. Moreover, the law on illegal possession of firearms has been amended to specifically penalize the owner, president, manager, director, or other responsible officer of any public or private firm or entity who knowingly allows the use of unlicensed firearms by his personnel.36 To reiterate, under Section 261 (s) of the Omnibus Election Code, the punishable act is the bearing of arms outside the immediate vicinity of ones place of work during the election period and not the failure of the head or responsible officer of the security agency to obtain prior written COMELEC approval.

Incidentally, private respondent also asserts that since the incident happened in a street inside a subdivision, a written authority from the COMELEC should have nonetheless been obtained under R.A. 7166, Section 32 which in effect modified Section 261 of the Omnibus Election Code. Suffice it to say that Section 261(s) was not the one modified by Section 32 of R.A. No. 7166, but Section 261(q). As noted in Los Banos v. Pedro:37 SEC. 261. Prohibited Acts. The following shall be guilty of an election offense: xxxx (q) Carrying firearms outside residence or place of business. Any person who, although possessing a permit to carry firearms, carries any firearms outside his residence or place of business during the election period, unless authorized in writing by the Commission [on Elections]: Provided, That a motor vehicle, water or air craft shall not be considered residence or place of business or extension thereof. This prohibition shall not apply to cashiers and disbursing officers while in the performance of their duties or to persons who by nature of their official duties, profession, business or occupation habitually carry large sums of money or valuables. This section was subsequently amended under Republic Act (R.A.) No. 7166, the Synchronized Election Law of 1991, to read: SEC. 32. Who May Bear Firearms. During the election period, no person shall bear, carry or transport firearms or other deadly weapons in public places, including any building, street, park, private vehicle or public conveyance, even if licensed to possess or carry the same, unless authorized in writing by the Commission. The issuance of firearm licenses shall be suspended during the election period In any event, there is likewise nothing in R.A. 7166 that expressly penalizes the mere failure to secure written authority from the COMELEC as required in Section 32 thereof. Such failure to secure an authorization must still be accompanied by other operative acts, such as the bearing, carrying or transporting of firearms in public places during the election period. All told, petitioner should be absolved of any criminal liability, consistent with the doctrine of nullum crimen, nulla poena sine lege - there is no crime when there is no law punishing it.38 Thus, the Court finds that respondent COMELEC acted with grave abuse of discretion in issuing the questioned Resolutions. WHEREFORE, The Resolutions of the COMELEC En Banc issued on October 11, 2005 and January 5, 2007 in Election Case No. 01-130 are hereby REVERSED and SET ASIDE. SO ORDERED. EN BANC

ATTY. REYNANTE B. ORCEO, Petitioner,

G.R. No. 190779 Present: PUNO, C.J.,* CARPIO,** CORONA, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ.

- versus -

COMMISSION ON ELECTIONS, Promulgated: Respondent. March 26, 2010 x---- ------------------------------------------------------------------------------------x DECISION PERALTA, J.: This is a petition for certiorari36[1] questioning the validity of Resolution No. 8714 insofar as it provides that the term firearm includes airsoft guns and their replicas/imitations, which results in their coverage by the gun ban during the election period this year. Resolution No. 8714 is entitled Rules and Regulations on the: (1) Bearing, Carrying or Transporting of Firearms or other Deadly Weapons; and (2) Employment, Availment or Engagement of the Services of Security Personnel or Bodyguards, During the Election Period for the May 10, 2010 National and Local Elections. The Resolution was promulgated by the Commission on Elections (COMELEC) on December 16, 2009, and took effect on December 25, 2009. Resolution No. 8714 contains the implementing rules and regulations of Sec. 32 (Who May Bear Firearms) and Section 33 (Security Personnel and Bodyguards) of Republic Act (R.A.) No. 7166, entitled An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes. Section 1 of Resolution No. 8714 prohibits an unauthorized person from bearing, carrying or transporting firearms or other deadly weapons in public places, including all

36

public buildings, streets, parks, and private vehicles or public conveyances, even if licensed to possess or carry the same, during the election period. Under Section 2 (b) of Resolution No. 8714, the term firearm includes airgun, airsoft guns, and their replica/imitation in whatever form that can cause an ordinary person to believe that they are real. Hence, airsoft guns and their replicas/imitations are included in the gun ban during the election period from January 10, 2010 to June 9, 2010. Petitioner claims that he is a real party-in-interest, because he has been playing airsoft since the year 2000. The continuing implementation of Resolution No. 8714 will put him in danger of sustaining direct injury or make him liable for an election offense37[2] if caught in possession of an airsoft gun and its replica/imitation in going to and from the game site and playing the sport during the election period. Petitioner contends that the COMELEC gravely abused its discretion amounting to lack or excess of jurisdiction in including airsoft guns and their replicas/imitations in the definition of firearm in Resolution No. 8714, since there is nothing in R.A. No. 7166 that mentions airsoft guns and their replicas/imitations. He asserts that the intendment of R.A. No. 7166 is that the term firearm refers to real firearm in its common and ordinary usage. In support of this assertion, he cites the Senate deliberation on the bill, 38[3] which later became R.A. No. 7166, where it was clarified that an unauthorized person caught carrying a firearm during the election period is guilty of an election offense under Section 261 (q) of the Omnibus Election Code. Further, petitioner alleges that there is no law that covers airsoft guns. By including airsoft guns in the definition of firearm, Resolution No. 8714, in effect, criminalizes the sport, since the possession of an airsoft gun or its replica/imitation is now an election offense, although there is still no law that governs the use thereof. Petitioner prays that the Court render a decision as follows: (1) Annulling Resolution No. 8714 insofar as it includes airsoft guns and their replicas/imitations within the meaning of firearm, and declaring the Resolution as invalid; (2) ordering the COMELEC to desist from further implementing Resolution No. 8714 insofar as airsoft guns and their replicas/imitations are concerned; (3) ordering the COMELEC to amend Resolution No. 8714 by removing airsoft guns and their replicas/imitations within the meaning of firearm; and (4) ordering the COMELEC to issue a Resolution directing the Armed Forces of the Philippines, Philippine National Police and other law enforcement agencies deputized by the COMELEC to desist from further enforcing Resolution No. 8714 insofar as airsoft guns and their replicas/imitations are concerned. The main issue is whether or not the COMELEC gravely abused its discretion in including airsoft guns and their replicas/imitations in the term firearm in Section 2 (b) of R.A. No. 8714. The Court finds that the COMELEC did not commit grave abuse of discretion in this case. R.A. No. 7166 (An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes)39[4] provides:
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SEC. 32. Who May Bear Firearms. During the election period, no person shall bear, carry or transport firearms or other deadly weapons in public places, including any building, street, park, private vehicle or public conveyance, even if licensed to possess or carry the same, unless authorized in writing by the Commission. The issuance of firearms licenses shall be suspended during the election period. Only regular members or officers of the Philippine National Police, the Armed Forces of the Philippines and other law enforcement agencies of the Government who are duly deputized in writing by the Commission for election duty may be authorized to carry and possess firearms during the election period: Provided, That, when in the possession of firearms, the deputized law enforcement officer must be: (a) in full uniform showing clearly and legibly his name, rank and serial number, which shall remain visible at all times; and (b) in the actual performance of his election duty in the specific area designated by the Commission. xxxx SEC. 35. Rules and Regulations. The Commission shall issue rules and regulations to implement this Act. Said rules shall be published in at least two (2) national newspapers of general circulation.

Pursuant to Section 35 of R.A. No. 7166, the COMELEC promulgated Resolution No. 8714, which contains the implementing rules and regulations of Sections 32 and 33 of R.A. No. 7166. The pertinent portion of the Resolution states: NOW, THEREFORE, pursuant to the powers vested in it by the Constitution of the Republic of the Philippines, the Omnibus Election Code (B.P. Blg. 881), Republic Acts Nos. 6646, 7166, 8189, 8436, 9189, 9369 and other elections laws, the Commission RESOLVED, as it hereby RESOLVES, to promulgate the following rules and regulations to implement Sections 32 and 33 of Republic Act No. 7166 in connection with the conduct of the May 10, 2010 national and local elections: SECTION 1. General Guiding Principles. During the election period: (a) no person shall bear, carry or transport firearms or other deadly weapons in public places, including all public buildings, streets, parks, and private vehicles or public conveyances, even if licensed to possess or carry the same; and (b) no candidate for public office, including incumbent public officers seeking election to any public office, shall employ, avail himself of or engage the services of security personnel or bodyguards, whether or not such bodyguards are regular members or officers of the Philippine National Police (PNP), the Armed Forces of the Philippines (AFP) or other law enforcement agency of the Government. The transport of firearms of those who are engaged in the manufacture, importation, exportation, purchase, sale of firearms, explosives and their spare parts or those involving the transportation of firearms, explosives and their spare parts, may, with prior notice to the Commission, be authorized by the Director General of the PNP provided that the firearms,

explosives and their spare parts are immediately transported to the Firearms and Explosives Division, CSG, PNP. SEC. 2. Definition of Terms. As used in this Resolution:

(a) Election Period refers to the election period prescribed in Comelec Resolution No. 8646 dated 14 July 2009 which is from 10 January 2010 to 09 June 2010; (b) Firearm shall refer to the "firearm" as defined in existing laws, rules and regulations. The term also includes airgun, airsoft guns, and their replica/imitation in whatever form that can cause an ordinary person to believe that they are real; (c) Deadly weapon includes bladed instrument, handgrenades or other explosives, except pyrotechnics. xxxx
SEC. 4. Who May Bear Firearms. Only the following persons who are in the regular plantilla of the PNP or AFP or other law enforcement agencies are authorized to bear, carry or transport firearms or other deadly weapons during the election period:

(a)

Regular member or officer of the PNP, the AFP and other law enforcement agencies of the Government, provided that when in the possession of firearm, he is: (1) in the regular plantilla of the said agencies and is receiving regular compensation for the services rendered in said agencies; and (2) in the agency-prescribed uniform showing clearly and legibly his name, rank and serial number or, in case rank and serial number are inapplicable, his agency-issued identification card showing clearly his name and position, which identification card shall remain visible at all times; (3) duly licensed to possess firearm and to carry the same outside of residence by means of a valid mission order or letter order; and (4) in the actual performance of official law enforcement duty, or in going to or returning from his residence/barracks or official station. xxxx (b) Member of privately owned or operated security, investigative, protective or intelligence agencies duly authorized by the PNP, provided that when in the possession of firearm, he is: (1) in the agency-prescribed uniform with his agencyissued identification card prominently displayed and visible at all times, showing clearly his name and position; and (2) in the actual performance of duty at his specified place/area of duty. xxxx SEC. 8. Enforcement. Any person who, not wearing the authorized uniform mentioned herein, bears, carries or transports firearm or other deadly weapon, shall be presumed unauthorized to carry firearms and subject to arrest.40[5]

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Petitioner contends that under R.A. No. 7166, the term firearm connotes real firearm. Moreover, R.A. No. 7166 does not mention airsoft guns and their replicas/imitations. Hence, its implementing rules and regulations contained in Resolution No. 8714 should not include airsoft guns and their replicas/imitations in the definition of the term firearm. The Court is not persuaded. Holy Spirit Homeowners Association, Inc. v. Defensor41[6] held: Where a rule or regulation has a provision not expressly stated or contained in the statute being implemented, that provision does not necessarily contradict the statute. A legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by providing the details thereof. All that is required is that the regulation should be germane to the objects and purposes of the law; that the regulation be not in contradiction to, but in conformity with, the standards prescribed by the law.42[7] Evidently, the COMELEC had the authority to promulgate Resolution No. 8714 pursuant to Section 35 of R.A. No. 7166. It was granted the power to issue the implementing rules and regulations of Sections 32 and 33 of R.A. No. 7166. Under this broad power, the COMELEC was mandated to provide the details of who may bear, carry or transport firearms or other deadly weapons, as well as the definition of firearms, among others. These details are left to the discretion of the COMELEC, which is a constitutional body that possesses special knowledge and expertise on election matters, with the objective of ensuring the holding of free, orderly, honest, peaceful and credible elections. In its Comment,43[8] the COMELEC, represented by the Office of the Solicitor General, states that the COMELECs intent in the inclusion of airsoft guns in the term firearm and their resultant coverage by the election gun ban is to avoid the possible use of recreational guns in sowing fear, intimidation or terror during the election period. An ordinary citizen may not be able to distinguish between a real gun and an airsoft gun. It is fear subverting the will of a voter, whether brought about by the use of a real gun or a recreational gun, which is sought to be averted. Ultimately, the objective is to ensure the holding of free, orderly, honest, peaceful and credible elections this year. Contrary to petitioners allegation, there is a regulation that governs the possession and carriage of airsoft rifles/pistols, namely, Philippine National Police (PNP) Circular No. 11 dated December 4, 2007, entitled Revised Rules and Regulations Governing the Manufacture, Importation, Exportation, Sale, Possession, Carrying of Airsoft Rifles/Pistols and Operation of Airsoft Game Sites and Airsoft Teams. The Circular defines an airsoft gun as follows: Airsoft Rifle/Pistol x x x includes battery operated, spring and gas type powered rifles/pistols which discharge plastic or rubber pellets only as bullets or ammunition. This differs from replica as the latter does not fire plastic or rubber pellet.

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PNP Circular No. 11 classifies the airsoft rifle/pistol as a special type of air gun, which is restricted in its use only to sporting activities, such as war game simulation. 44[9] Any person who desires to possess an airsoft rifle/pistol needs a license from the PNP, and he shall file his application in accordance with PNP Standard Operating Procedure No. 13, which prescribes the procedure to be followed in the licensing of firearms.45[10] The minimum age limit of the applicant is 18 years old.46[11] The Circular also requires a Permit to Transport an airsoft rifle/pistol from the place of residence to any game or exhibition site.47[12] A license to possess an airsoft gun, just like ordinary licenses in other regulated fields, does not confer an absolute right, but only a personal privilege to be exercised under existing restrictions, and such as may thereafter be reasonably imposed.48[13] The inclusion of airsoft guns and airguns in the term firearm in Resolution No. 8714 for purposes of the gun ban during the election period is a reasonable restriction, the objective of which is to ensure the holding of free, orderly, honest, peaceful and credible elections. However, the Court excludes the replicas and imitations of airsoft guns and airguns from the term firearm under Resolution No. 8714, because they are not subject to any regulation, unlike airsoft guns. Petitioner further contends that Resolution No. 8714 is not in accordance with the State policies in these constitutional provisions: Art. II, Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. x x x Art. XV, Sec. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. Art. II, Sec. 17. The State shall give priority to x x x sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development. Petitioner asserts that playing airsoft provides bonding moments among family members. Families are entitled to protection by the society and the State under the Universal Declaration of Human Rights. They are free to choose and enjoy their recreational activities. These liberties, petitioner contends, cannot be abridged by the COMELEC. In its Comment, the COMELEC, through the Solicitor General, states that it adheres to the aforementioned state policies, but even constitutional freedoms are not absolute, and they may be abridged to some extent to serve appropriate and important interests.
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As a long-time player of the airsoft sport, it is presumed that petitioner has a license to possess an airsoft gun. As a lawyer, petitioner is aware that a licensee of an airsoft gun is subject to the restrictions imposed upon him by PNP Circular No. 11 and other valid restrictions, such as Resolution No. 8714. These restrictions exist in spite of the aforementioned State policies, which do not directly uphold a licensees absolute right to possess or carry an airsoft gun under any circumstance. Petitioners allegation of grave abuse of discretion by respondent COMELEC implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, the exercise of power in an arbitrary manner by reason of passion, prejudice or personal hostility, and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.49[14] The Court holds that the COMELEC did not gravely abuse its discretion in including airsoft guns and airguns in the term firearm in Resolution No. 8714 for purposes of the gun ban during the election period, with the apparent objective of ensuring free, honest, peaceful and credible elections this year. However, the replicas and imitations of airsoft guns and airguns are excluded from the term firearm in Resolution No. 8714. WHEREFORE, the petition is PARTLY GRANTED insofar as the exclusion of replicas and imitations of airsoft guns from the term firearm is concerned. Replicas and imitations of airsoft guns and airguns are hereby declared excluded from the term firearm in Resolution No. 8714. The petition is DISMISSED in regard to the exclusion of airsoft guns from the term firearm in Resolution No. 8714. Airsoft guns and airguns are covered by the gun ban during the election period. No costs. SO ORDERED. TEOFILO EVANGELISTA, Petitioner,

G.R. No. 163267 Present:

- versus-

CARPIO, J., Chairperson, BRION, DEL CASTILLO, ABAD, and PEREZ, JJ.

THE PEOPLE OF THE PHILIPPINES, Promulgated: Respondent. May 5, 2010 x-------------------------------------------------------------------x DECISION DEL CASTILLO, J.: To be guilty of the crime of illegal possession of firearms and ammunition, one does not have to be in actual physical possession thereof. The law does not punish physical possession alone
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but possession in general, which includes constructive possession or the subjection of the thing to the owners control.50[1] This Petition for Review on Certiorari51[2] assails the October 15, 2003 Decision52[3] of the Court of Appeals (CA) in CA-G.R. CR No. 21805 which affirmed the January 23, 1998 Decision53[4] of the Regional Trial Court (RTC) of Pasay City, Branch 109 convicting petitioner Teofilo Evangelista for violation of Section 1, Presidential Decree (PD) No. 1866,54[5] as amended, as well as the April 16, 2004 Resolution which denied petitioners Motion for Reconsideration. Factual Antecedents In an Information55[6] dated January 31, 1996, petitioner was charged with violation of Section 1 of PD 1866 allegedly committed as follows: That on or about the 30th day of January 1996, at the Ninoy Aquino International Airport, Pasay City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there, wilfully, unlawfully and feloniously have in his possession, custody and control the following items: 1. One (1) Unit 9mm Jericho Pistol, Israel with SN F-36283 with one (1) magazine;

2. One (1) Unit Mini-Uzi 9mm Israel Submachine gun with SN 931864 with two (2) magazines; 3. Nineteen (19) 9mm bullets. without the corresponding permit or license from competent authority. CONTRARY TO LAW. After posting his bail, petitioner filed on February 14, 1996 an Urgent Motion for (a) Suspension of Proceedings and (b) the Holding of A Preliminary Investigation. 56[7] The RTC granted the motion and, accordingly, the State Prosecutor conducted the preliminary investigation. In a Resolution57[8] dated March 6, 1996, the State Prosecutor found no probable cause to indict petitioner and thus recommended the reversal of the resolution finding probable cause and the dismissal of the complaint. Thereafter, a Motion to Withdraw Information58[9] was filed but it was denied by the trial court in an Order59[10] dated March 26, 1996, viz:
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52 53 54

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Acting on the Motion to Withdraw Information filed by State Prosecutor Aida Macapagal on the ground that [there exists] no probable cause to indict the accused, the Information having been already filed in Court, the matter should be left to the discretion of the Court to assess the evidence, hence, for lack of merit, the same is hereby denied. Let the arraignment of the accused proceed. When arraigned on March 26, 1996, petitioner pleaded not guilty to the charge. Thereafter, trial ensued. Version of the Prosecution In the morning of January 30, 1996, Maximo Acierto, Jr. (Acierto), a Customs Police assigned at the Ninoy Aquino International Airport (NAIA) District Command, was informed by his superior that a certain passenger of Philippine Airlines (PAL) Flight No. 657 would be arriving from Dubai bringing with him firearms and ammunitions. Shortly after lunch, Acierto, together with Agents Cuymo and Fuentabella, proceeded to the tube area where they were met by a crewmember who introduced to them herein petitioner. Acierto asked petitioner if he brought firearms with him and the latter answered in the affirmative adding that the same were bought in Angola. Thereupon, Acierto was summoned to the cockpit by the pilot, Capt. Edwin Nadurata (Capt. Nadurata), where the firearms and ammunitions were turned over to him. Petitioner was then escorted to the arrival area to get his luggage and thereafter proceeded to the examination room where the luggage was examined and petitioner was investigated. In open court, Acierto identified the firearms and ammunitions. During the investigation, petitioner admitted before Special Agent Apolonio Bustos (Bustos) that he bought the subject items in Angola but the same were confiscated by the Dubai authorities, which turned over the same to a PAL personnel in Dubai. Upon inquiry, the Firearms and Explosive Office (FEO) in Camp Crame certified that petitioner is neither registered with said office 60[11] nor licensed holder of aforesaid firearms and ammunitions. Bustos likewise verified from the Bureau of Customs, but his effort yielded no record to show that the firearms were legally purchased. Among the documents Bustos had gathered during his investigation were the Arrival Endorsement Form61[12] and Customs Declaration Form.62[13] A referral letter63[14] was prepared endorsing the matter to the Department of Justice. Bustos admitted that petitioner was not assisted by counsel when the latter admitted that he bought the firearms in Angola. SPO4 Federico Bondoc, Jr. (SPO4 Bondoc), a member of the Philippine National Police (PNP) and representative of the FEO, upon verification, found that petitioner is not a licensed/registered firearm holder. His office issued a certification64[15] to that effect which he identified in court as Exhibit A.

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After the prosecution rested its case, petitioner, with leave of court, filed his Demurrer to Evidence,65[16] the resolution of which was deferred pending submission of petitioners evidence.66[17] Version of the Defense The defense presented Capt. Nadurata whose brief but candid and straightforward narration of the event was synthesized by the CA as follows: x x x On January 30, 1996, he was approached by the PAL Station Manager in Dubai, who informed him that a Filipino contract worker from Angola who is listed as a passenger of PAL flight from Dubai to Manila, was being detained as he was found in possession of firearms; that if said passenger will not be able to board the airplane, he would be imprisoned in Dubai; and that the Arabs will only release the passenger if the Captain of PAL would accept custody of the passenger [herein petitioner] and the firearms. Capt. Nadurata agreed to take custody of the firearms and the passenger, herein appellant, so that the latter could leave Dubai. The firearms were deposited by the Arabs in the cockpit of the airplane and allowed the appellant to board the airplane. Upon arrival in Manila, Capt. Nadurata surrendered the firearms to the airport authorities. Meanwhile, in view of the unavailability of the defenses intended witness, Nilo Umayaw (Umayaw), the PAL Station Manager in Dubai, the prosecution and the defense agreed and stipulated on the following points: 1. That PAL Station Manager Mr. Nilo Umayaw was told by a Dubai Police that firearms and ammunitions were found in the luggage of a Filipino passenger coming from Angola going to the Philippines; 2. That he was the one who turned over the subject firearms to Captain Edwin Nadurata, the Pilot in command of PAL Flight 657; 3. That the subject firearms [were] turned over at Dubai;

4. That the said firearms and ammunitions were confiscated from the accused Teofilo Evangelista and the same [were] given to the PAL Station Manager who in turn submitted [them] to the PAL Pilot, Capt. Edwin Nadurata who has already testified;

5.

That [these are] the same firearms involved in this case.67[18]

Ruling of the Regional Trial Court On February 4, 1997, the RTC rendered its Decision, the dispositive portion of which reads: In view of all the foregoing, the Court finds accused TEOFILO E. EVANGELISTA guilty beyond reasonable doubt for violation of Sec. 1, P.D. 1866 as amended (Illegal Possession of Firearms and Ammunitions: (One (1) Unit Mini-Uzi 9mm Israel submachine gun with SN-931864 with two (2) magazines and nineteen (19) 9mm

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bullets) and hereby sentences him to imprisonment of Seventeen (17) Years and Four (4) Months to Twenty (20) Years. The above-mentioned firearms are hereby ordered forfeited in favor of the government and is ordered transmitted to the National Bureau of Investigation, Manila for proper disposition. SO ORDERED.68[19] On April 4, 1997, petitioner filed a Motion for New Trial 69[20] which the RTC granted.70[21] Forthwith, petitioner took the witness stand narrating his own version of the incident as follows: On January 28, 1996, he was at Dubai International Airport waiting for his flight to the Philippines. He came from Luwanda, Angola where he was employed as a seaman at Oil International Limited. While at the airport in Dubai, Arab policemen suddenly accosted him and brought him to their headquarters where he saw guns on top of a table. The Arabs maltreated him and forced him to admit ownership of the guns. At this point, PAL Station Manager Umayaw came and talked to the policemen in Arabian dialect. Umayaw told him that he will only be released if he admits ownership of the guns. When he denied ownership of the same, Umayaw reiterated that he (petitioner) will be released only if he will bring the guns with him to the Philippines. He declined and insisted that the guns are not his. Upon the request of Umayaw, petitioner was brought to the Duty Free area for his flight going to the Philippines. When he was inside the plane, he saw the Arab policemen handing the guns to the pilot. Upon arrival at the NAIA, he was arrested by the Customs police and brought to the arrival area where his passport was stamped and he was made to sign a Customs Declaration Form without reading its contents. Thereafter, he was brought to a room at the ground floor of the NAIA where he was investigated. During the investigation, he was not represented by counsel and was forced to accept ownership of the guns. He denied ownership of the guns and the fact that he admitted having bought the same in Angola. Ruling of the Regional Trial Court After new trial, the RTC still found petitioner liable for the offense charged but modified the penalty of imprisonment. The dispositive portion of the Decision dated January 23, 1998 reads: In view of all the foregoing, the Court finds accused TEOFILO E. EVANGELISTA guilty beyond reasonable doubt for violation of Sec. 1, P.D. 1866 as amended (Illegal Possession of Firearms and Ammunitions: One (1) Unit 9mm Jerico Pistol, Israel with SN F-36283 with one (1) magazine; One (1) Unit Mini-Uzi 9mm Israel submachine gun with SN-931864 with two (2) magazines and nineteen (19) 9mm bullets and hereby sentences him to imprisonment of Six (6) Years and One (1) Day to Eight (8) Years and a fine of P30,000.00. The above-mentioned firearms are hereby ordered forfeited in favor of the government and [are] ordered transmitted to the National Bureau of Investigation, Manila for proper disposition. SO ORDERED.71[22]

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Ruling of the Court of Appeals On appeal, the CA affirmed the findings of the trial court in its Decision dated October 15, 2003. It ruled that the stipulations during the trial are binding on petitioner. As regards possession of subject firearms, the appellate court ruled that Capt. Naduratas custody during the flight from Dubai to Manila was for and on behalf of petitioner. Thus, there was constructive possession. Petitioner moved for reconsideration72[23] but it was denied by the appellate court in its April 16, 2004 Resolution. Hence, this petition. Issues Petitioner assigns the following errors: a. b. The Court of Appeals gravely erred in not acquitting Evangelista from the charge of Presidential Decree No. 1866, Illegal Possession of Firearms. The Court of Appeals gravely erred in not holding that Evangelista was never in possession of any firearm or ammunition within Philippine jurisdiction and he therefore could not have committed the crime charged against him. The Court of Appeals gravely erred in holding that Evangelista committed a continuing crime. The Court of Appeals gravely erred in disregarding the results of the preliminary investigation.73[24]

c. d.

We find the appeal devoid of merit. At the outset, we emphasize that under Rule 45 of the Rules of Court, a petition for review on certiorari shall only raise questions of law considering that the findings of fact of the CA are, as a general rule, conclusive upon and binding on the Supreme Court. 74[25] In this recourse, petitioner indulges us to calibrate once again the evidence adduced by the parties and to re-evaluate the credibility of their witnesses. On this ground alone, the instant petition deserves to be denied outright. However, as the liberty of petitioner is at stake and following the principle that an appeal in a criminal case throws the whole case wide open for review, we are inclined to delve into the merits of the present petition. In his bid for acquittal, petitioner argues that he could not have committed the crime imputed against him for he was never in custody and possession of any firearm or ammunition when he arrived in the Philippines. Thus, the conclusion of the appellate court that he was in constructive possession of the subject firearms and ammunitions is erroneous.
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We are not persuaded. As correctly found by the CA: Appellants argument that he was never found in possession of the subject firearms and ammunitions within Philippine jurisdiction is specious. It is worthy to note that at the hearing of the case before the court a quo on October 8, 1996, the defense counsel stipulated that the subject firearms and ammunitions were confiscated from appellant and the same were given to PAL Station Manager Nilo Umayaw who, in turn, turned over the same to Capt. Edwin Nadurata. Such stipulation of fact is binding on appellant, for the acts of a lawyer in the defense of a case are the acts of his client. Granting that Nilo Umayaw was merely told by the Dubai authorities that the firearms and ammunitions were found in the luggage of appellant and that Umayaw had no personal knowledge thereof, however, appellants signature on the Customs Declaration Form, which contains the entry 2 PISTOL guns SENT SURRENDER TO PHILIPPINE AIRLINE, proves that he was the one who brought the guns to Manila. While appellant claims that he signed the Customs Declaration Form without reading it because of his excitement, however, he does not claim that he was coerced or persuaded in affixing his signature thereon. The preparation of the Customs Declaration Form is a requirement for all arriving passengers in an international flight. Moreover, it cannot be said that appellant had already been arrested when he signed the Customs Declaration Form. He was merely escorted by Special Agent Acierto to the arrival area of the NAIA. In fact, appellant admitted that it was only after he signed the Customs Declaration Form that he was brought to the ground floor of NAIA for investigation. Consequently, appellant was in constructive possession of the subject firearms. As held in People v. Dela Rosa, the kind of possession punishable under PD 1866 is one where the accused possessed a firearm either physically or constructively with animus possidendi or intention to possess the same. Animus possidendi is a state of mind. As such, what goes on into the mind of the accused, as his real intent, could be determined solely based on his prior and coetaneous acts and the surrounding circumstances explaining how the subject firearm came to his possession. Appellants witness, Capt. Nadurata, the PAL pilot of Flight No. PR 657 from Dubai to Manila on January 30, 1996, testified that he accepted custody of the firearms and of appellant in order that the latter, who was being detained in Dubai for having been found in possession of firearms, would be released from custody. In other words, Capt. Naduratas possession of the firearm during the flight from Dubai to Manila was for and on behalf of appellant.75[26] We find no cogent reason to deviate from the above findings, especially considering petitioners admission during the clarificatory questioning by the trial court: Court: So, it is clear now in the mind of the Court, that the firearms and ammunitions will also be with you on your flight to Manila, is that correct? A: Yes, your honor. Court: [You] made mention of that condition, that the Dubai police agreed to release you provided that you will bring the guns and ammunitions with you? Is that the condition of the Dubai Police? A: Yes, your honor. Court: The condition of his release was that he will have to bring the guns and ammunitions to the Philippines and this arrangement was made by the PAL
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Supervisor at Dubai and it was Mr. Umayaw the PAL Supervisor, who interceded in his behalf with the Dubai Police for his flight in the Philippines. 76
[27]

To us, this constitutes judicial admission of his possession of the subject firearms and ammunitions. This admission, the veracity of which requires no further proof, may be controverted only upon a clear showing that it was made through palpable mistake or that no admission was made.77[28] No such controversion is extant on record. Moreover, we cannot ignore the Customs Declaration Form wherein it appeared that petitioner brought the firearms with him upon his arrival in the Philippines. While there was no showing that he was forced to sign the form, petitioner can only come up with the excuse that he was excited. Hardly can we accept such pretension. We are likewise not swayed by petitioners contention that the lower court erroneously relied on the Customs Declaration Form since it is not admissible in evidence because it was accomplished without the benefit of counsel while he was under police custody. The accomplishment of the Customs Declaration Form was not elicited through custodial investigation. It is a customs requirement which petitioner had a clear obligation to comply. As correctly observed by the CA, the preparation of the Customs Declaration Form is a requirement for all arriving passengers in an international flight. Petitioner was among those passengers. Compliance with the constitutional procedure on custodial investigation is, therefore, not applicable in this case. Moreover, it is improbable that the customs police were the ones who filled out the declaration form. As will be noted, it provides details that only petitioner could have possibly known or supplied. Even assuming that there was prior accomplishment of the form which contains incriminating details, petitioner could have easily taken precautionary measures by not affixing his signature thereto. Or he could have registered his objection thereto especially when no life threatening acts were being employed against him upon his arrival in the country. Obviously, it was not only the Customs Declaration Form from which the courts below based their conclusion that petitioner was in constructive possession of subject firearms and ammunitions. Emphasis was also given on the stipulations and admissions made during the trial. These pieces of evidence are enough to show that he was the owner and possessor of these items. Petitioner contends that the trial court has no jurisdiction over the case filed against him. He claims that his alleged possession of the subject firearms transpired while he was at the Dubai Airport and his possession thereof has ceased when he left for the Philippines. He insists that since Dubai is outside the territorial jurisdiction of the Philippines and his situation is not one of the exceptions provided in Article 2 of the Revised Penal Code, our criminal laws are not applicable. In short, he had not committed a crime within the Philippines. Indeed it is fundamental that the place where the crime was committed determines not only the venue of the action but is an essential element of jurisdiction. 78[29] In order for the courts to acquire jurisdiction in criminal cases, the offense should have been committed or any one of its essential ingredients should have taken place within the territorial jurisdiction of the court. If the

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evidence adduced during the trial shows that the offense was committed somewhere else, the court should dismiss the action for want of jurisdiction.79[30] Contrary to the arguments put forward by petitioner, we entertain no doubt that the crime of illegal possession of firearms and ammunition for which he was charged was committed in the Philippines. The accomplishment by petitioner of the Customs Declaration Form upon his arrival at the NAIA is very clear evidence that he was already in possession of the subject firearms in the Philippines. And more than mere possession, the prosecution was able to ascertain that he has no license or authority to possess said firearms. It bears to stress that the essence of the crime penalized under PD 1866, as amended, is primarily the accuseds lack of license to possess the firearm. The fact of lack or absence of license constitutes an essential ingredient of the offense of illegal possession of firearm. Since it has been shown that petitioner was already in the Philippines when he was found in possession of the subject firearms and determined to be without any authority to possess them, an essential ingredient of the offense, it is beyond reasonable doubt that the crime was perpetrated and completed in no other place except the Philippines. Moreover, the jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information. In this case, the information specifically and categorically alleged that on or about January 30, 1996 petitioner was in possession, custody and control of the subject firearms at the Ninoy Aquino International Airport, Pasay City, Philippines, certainly a territory within the jurisdiction of the trial court. In contrast, petitioner failed to establish by sufficient and competent evidence that the present charge happened in Dubai. It may be well to recall that while in Dubai, petitioner, even in a situation between life and death, firmly denied possession and ownership of the firearms. Furthermore, there is no record of any criminal case having been filed against petitioner in Dubai in connection with the discovered firearms. Since there is no pending criminal case when he left Dubai, it stands to reason that there was no crime committed in Dubai. The age-old but familiar rule that he who alleges must prove his allegation applies.80[31] Petitioner finally laments the trial courts denial of the Motion to Withdraw Information filed by the investigating prosecutor due to the latters finding of lack of probable cause to indict him. He argues that such denial effectively deprived him of his substantive right to a preliminary investigation. Still, petitioners argument fails to persuade. There is nothing procedurally improper on the part of the trial court in disregarding the result of the preliminary investigation it itself ordered. Judicial action on the motion rests in the sound exercise of judicial discretion. In denying the motion, the trial court just followed the jurisprudential rule laid down in Crespo v. Judge Mogul81[32] that once a complaint or information is filed in court, any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests on the sound discretion of the court. The court is not dutifully bound by such finding of the investigating prosecutor. In Solar Team Entertainment, Inc v. Judge How82[33] we held:
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It bears stressing that the court is however not bound to adopt the resolution of the Secretary of Justice since the court is mandated to independently evaluate or assess the merits of the case, and may either agree or disagree with the recommendation of the Secretary of Justice. Reliance alone on the resolution of the Secretary of Justice would be an abdication of the trial courts duty and jurisdiction to determine prima facie case. Consequently, petitioner has no valid basis to insist on the trial court to respect the result of the preliminary investigation it ordered to be conducted. In fine, we find no reason not to uphold petitioners conviction. The records substantiate the RTC and CAs finding that petitioner possessed, albeit constructively, the subject firearms and ammunition when he arrived in the Philippines on January 30, 1996. Moreover, no significant facts and circumstances were shown to have been overlooked or disregarded which if considered would have altered the outcome of the case. In the prosecution for the crime of illegal possession of firearm and ammunition, the Court has reiterated the essential elements in People v. Eling83[34] to wit: (1) the existence of subject firearm; and, (2) the fact that the accused who possessed or owned the same does not have the corresponding license for it. In the instant case, the prosecution proved beyond reasonable doubt the elements of the crime. The existence of the subject firearms and the ammunition were established through the testimony of Acierto. Their existence was likewise admitted by petitioner when he entered into stipulation and through his subsequent judicial admission. Concerning petitioners lack of authority to possess the firearms, SPO4 Bondoc, Jr. testified that upon verification, it was ascertained that the name of petitioner does not appear in the list of registered firearm holders or a registered owner thereof. As proof, he submitted a certification to that effect and identified the same in court. The testimony of SPO4 Bondoc, Jr. or the certification from the FEO would suffice to prove beyond reasonable doubt the second element.84[35] A final point. Republic Act (RA) No. 829485[36] took effect on June 6, 1997 or after the commission of the crime on January 30, 1996. However, since it is advantageous to the petitioner, it should be given retrospective application insofar as the penalty is concerned. Section 1 of PD 1866, as amended by RA 8294 provides: Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. x x x The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested.

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Prision mayor in its minimum period ranges from six years and one day to eight years. Hence, the penalty imposed by the RTC as affirmed by the CA is proper. WHEREFORE, the petition is DENIED. The assailed Decision of the Court of Appeals in CAG.R. CR No. 21805 affirming the January 23, 1998 Decision of the Regional Trial Court of Pasay City, Branch 109 dated January 23, 1998, convicting petitioner Teofilo Evangelista of violation of Section 1 of Presidential Decree No. 1866, as amended, and sentencing him to suffer the penalty of imprisonment of six years and one day to eight years and to pay a fine of P30,000.00 is AFFIRMED. SO ORDERED. PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, G.R. No. 186128 Present: CARPIO MORALES, J., Chairperson, BRION, BERSAMIN, ABAD, and VILLARAMA, JR., JJ. Promulgated:

- versus -

SUSAN LATOSA y CHICO, Accused-Appellant.

June 23, 2010 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION VILLARAMA, JR., J.: This is an appeal from the Decision86[1] dated April 23, 2008 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02192 which affirmed the April 12, 2006 Decision87[2] of the Regional Trial Court (RTC) of Pasig City, Branch 159, convicting appellant Susan Latosa y Chico of parricide. Appellant was charged with parricide in an information88[3] which reads, That, on or about the 5th of February 2002, in the Municipality of Taguig, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then the legitimate wife of one Felixberto Latosa y Jaudalso, armed with and using an unlicensed gun, with intent to kill, did then and there willfully, unlawfully and feloniously shoot her husband, Felixberto Latosa y Jaudalso, hitting him on the head, thereby causing the latter to sustain gunshot wound which directly caused his death. CONTRARY TO LAW.

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Upon arraignment on June 25, 2002, appellant, with the assistance of counsel, pleaded not guilty. Trial thereafter ensued. The prosecutions evidence established the following version: On February 5, 2002, at around 2:00 in the afternoon, appellant and her husband Major Felixberto Latosa, Sr. (Felixberto) together with two (2) of their children, Sassymae Latosa (Sassymae) and Michael Latosa (Michael), were at their house in Fort Bonifacio. Felixberto, Sr. was then asleep89[4] when Sassymae saw appellant take Felixberto Sr.s gun from the cabinet and leave. She asked her mother where she was going and if she could come along, but appellant refused.90[5] Moments later, appellant returned and told Sassymae to buy ice cream at the commissary. Appellant gave her money and asked her to leave. 91[6] After Sassymae left, appellant instructed Michael to follow his sister, but he refused as he was hungry. Appellant insisted and further told Michael not to make any noise as his father was sleeping. Nevertheless, appellant went back inside the house and turned up the volume of the television and the radio to full.92[7] Shortly after that, she came out again and gave Michael some money to buy food at the grocery. Instead of buying food, Michael bought ice candy and returned to the barracks located at the back of their house. Michael thereupon saw his friend Mac-Mac Nisperos who told him that he saw appellant running away from their house. Michael did not pay any attention to his friends comment, and simply continued eating his ice candy. Moments later, a certain Sgt. Ramos arrived and asked if something had happened in their house. Michael replied in the negative then entered their house. At that point, he saw his father lying on the bed with a hole in the left portion of his head and a gun at his left hand. Michael immediately went outside and informed Sgt. Ramos about what happened. Sgt. Ramos told him that appellant had reported the shooting incident to the Provost Marshall office.93[8] Then, Sassymae arrived and saw her father with a bullet wound on his head and a gun near his left hand.94[9] Felixberto Latosa, Jr., one (1) of the legitimate sons of appellant and the victim, also testified that sometime in December 2001, their father told him and his siblings over dinner about a threat to their lives by a certain Efren Sta. Inez.95[10]

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Appellant, testifying on her own behalf, on the other hand claimed that when Felixberto, Sr. woke up, he asked her to get his service pistol from the cabinet adjacent to their bed. As she was handing the pistol to him it suddenly fired, hitting Felixberto, Sr. who was still lying down. Shocked, she ran quickly to Felixberto, Sr.s office and asked for help. 96 [11] She also claimed that when Felixberto, Sr. asked her for his gun, she was on her way out of the house to follow her children who left for the market on an errand she had earlier given Sassymae. She claimed that she wanted to drive for them because it was hot. She ran after them but after a few minutes, when she realized that she did not have with her the keys to their jeep, she went back to their house. Felixberto, Sr. then asked again for his gun, and it was then that it fired as she was handing it to him.97[12] Appellant further described herself as a good mother and a good provider for their six (6) children whom she raised by herself while Felixberto, Sr. was in Mindanao. She claimed that they testified against her because they were manipulated by her brother-in-law, Francisco Latosa.98[13] She denied that Sassymae saw her holding a gun when she asked her to buy ice cream, alleging that Michael and Sassymae saw her holding the gun only when she placed it inside the cabinet before they proceeded to the hospital.99[14] Appellant also denied her childrens testimony100[15] that she was having an affair with a certain Col. Efren Sta. Inez (Sta. Inez), a policeman. She claimed that she first met Sta. Inez when her youngest brother was killed on June 6, 2001 by unidentified men. Sta. Inez was the one (1) who assisted her. She was alone at that time since her husband informed her that he could not leave his post in Mindanao for he had to rush some papers. She allegedly only saw Sta. Inez twice but admitted that Sta. Inez went to the precinct when he learned of the shooting incident.101[16] She also denied that she was terminated from her job at the Philippine Public Safety College due to immorality for having said affair. She claimed that she was terminated because she had incurred numerous absences from her work as she grieved the death of her youngest brother and had lost interest in her work after his death.102[17] The RTC found appellant guilty beyond reasonable doubt for killing her husband Felixberto, Sr. The dispositive portion of the decision reads: WHEREFORE, in view of the foregoing, this Court finds the accused SUSAN LATOSA Y CHICO GUILTY beyond reasonable doubt of the crime of parricide under Art. 246 of the Revised Penal Code as amended by RA 7659 in rel. to Sec. 1[,] 3rd par. PD 1866 as amended by RA 8294 and Sec. 5, RA 8294 and hereby sentences the said accused to suffer the penalty of reclusion
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perpetua and to further indemnify the victim the amount of P50,000 as civil indemnity[,] P50,000 as moral damages and P25,000 as exemplary damages. SO ORDERED.103[18] The RTC held that the claim of accidental shooting was inconsistent with the evidence considering the location of the gunshot wound, which was at the left temple of Felixberto, Sr., and the fact that the gun was found near Felixberto, Sr.s left hand despite his being right-handed. The trial court found that appellant planned the killing by asking her two (2) children to leave the house and, after the shooting, placing the gun near the victims left hand to suggest that the death was suicide. But appellant overlooked the fact that Felixberto, Sr. was right-handed. The trial court noted that despite the grueling crossexamination of the defense counsel, the Latosa children never wavered in their testimonies about what they knew regarding the circumstances surrounding the shooting incident. Their testimonies bore the hallmarks of truth as they were consistent on material points. The RTC found it inconceivable that the children would testify against their own mother or concoct a story of parricide unless they were impelled by their passion to condemn an injustice done to their father.104[19] The RTC, in finding appellant guilty, considered the following circumstantial evidence established by the prosecution: (1) shortly before the shooting, appellant asked her two (2) children to do errands for her which were not usually asked of them; (2) at the time of the shooting, only the appellant and Felixberto, Sr. were in the house; (3) appellant was seen running away from the house immediately after the shooting; (4) when Michael went inside their house, he found his father with a hole in the head and a gun in his left hand; (5) the medico-legal report showed that the cause of death was intracranial hemorrhage due to the gunshot wound on the head with the point of entry at the left temporal region; (6) the Firearms Identification Report concluded that appellant fired two (2) shots; (7) Felixberto, Sr. was right-handed and the gun was found near his left hand; (8) Sassymae testified that she heard Sta. Inez tell appellant bakit mo inamin. Sana pinahawak mo kay Major iyong baril saka mo pinutok; (9) appellants children testified that they were informed by Felixberto, Sr. regarding the threat of appellants paramour, Sta. Inez, to the whole family; and (10) Francisco Latosa presented a memorandum showing that appellant was terminated from her teaching job by reason of immorality.105[20] On appeal, the CA upheld the decision of the RTC. The CA held that since appellant admitted having killed her husband albeit allegedly by accident, she has the burden of proving the presence of the exempting circumstance of accident to relieve herself of criminal responsibility. She must rely on the strength of her own evidence and not on the weakness of the prosecution, for even if this be weak, it cannot be disbelieved after the appellant has admitted the killing.106[21] The CA, however, found appellants version of accidental shooting not credible. Citing the case of People v. Reyes,107[22] the CA held that appellants claim of accidental shooting was negated by the following facts: (1) a revolver is not prone to accidental firing
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as pressure on the trigger is necessary to make the gun fire, cocked or uncocked; and (2) when handing a gun to a person, the barrel or muzzle is never pointed to that person. In this case, appellant held the gun in one (1) hand and extended it towards her husband who was still lying in bed. Assuming that appellant was not aware of the basic firearm safety rule that the firearms muzzle is never pointed to a person, she failed to explain why the gun would accidentally fire, when it should not have fired unless there was pressure on the trigger. The location of Felixberto, Sr.s wound also showed that the shooting was not accidental. Appellant did not dispute that Felixberto, Sr. was lying down during the shooting and that after the incident, the gun was found near his left hand. The CA found that it was contrary to human nature that a newly awakened military man would suddenly ask his wife, who was busy doing other things, to bring his firearm, and patiently wait for her to come back to their house, when the gun was just inside an adjacent cabinet only two (2) meters away from his bed.108[23] The dispositive portion of the CA decision reads as follows: WHEREFORE, premises considered, the assailed decision of the Regional Trial Court of Pasig City, Branch 159, in Criminal Case No. 122621-H finding SUSAN LATOSA y CHICO guilty beyond reasonable doubt of the crime of parricide under Article 246 of the Revised Penal Code and sentencing her to suffer the penalty of reclusion perpetua and ordering her to pay the heirs of Felixberto Latosa the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as exemplary damages is AFFIRMED. SO ORDERED.109[24] Undaunted, appellant filed a Notice of Appeal on May 12, 2008.110[25] Appellant argues that the circumstantial evidence presented by the prosecution was insufficient to prove that she intentionally killed her husband. She insists that the gun fired accidentally while she was giving it to Felixberto, Sr. Since she had no experience in handling firearms, she was not able to foresee that it would fire accidentally and hit her husband. After her husband was hit, she immediately rushed to his office and asked for assistance.111[26] The only issue the Court has to resolve in this case is whether the exempting circumstance of accident was established by appellant. The basis of appellants defense of accidental shooting is Article 12, paragraph 4 of the Revised Penal Code, as amended, which provides:

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ART. 12. Circumstances which exempt from criminal liability. The following are exempt from criminal liability: xxxx 4. Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it. Thus, it was incumbent upon appellant to prove with clear and convincing evidence, the following essential requisites for the exempting circumstance of accident, to wit: 1. She was performing a lawful act; 2. With due care; 3. She caused the injury to her husband by mere accident; 4. Without fault or intention of causing it.112[27] To prove the circumstance she must rely on the strength of her own evidence and not on the weakness of that of the prosecution, for even if this be weak, it can not be disbelieved after the accused has admitted the killing.113[28] However, by no stretch of imagination could the pointing of the gun towards her husbands head and pulling the trigger be considered as performing a lawful act with due care. As correctly found by the CA, which we quote in full: Appellants version that she accidentally shot her husband is not credible. Appellants manner of carrying the caliber .45 pistol negates her claim of due care in the performance of an act. The location of the wound sustained by the victim shows that the shooting was not merely accidental. The victim was lying down and the fact that the gun was found near his left hand was not directly disputed by her. We find it contrary to human nature that a newly awakened military man would suddenly ask his wife for his firearm, and even patiently wait for her return to the house, when the said firearm was just inside the cabinet which, according to appellant, was just about two meters away from his bed. xxxx In the case at bench, appellant held the gun in one hand and extended it towards her husband who was still lying in bed. Assuming arguendo that appellant has never learned how to fire a gun and was merely handing the firearm over to the deceased, the muzzle is never pointed to a person, a basic firearms safety rule which appellant is deemed to have already known since she admitted, during trial, that she sometimes handed over the gun to her husband. Assuming further that she was not aware of this basic rule, it needed explaining why the gun would accidentally fire, when it should not, unless there was pressure on the trigger.114[29]

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There is no merit in appellants contention that the prosecution failed to prove by circumstantial evidence her motive in killing her husband. Intent to kill and not motive is the essential element of the offense on which her conviction rests. Evidence to prove intent to kill in crimes against persons may consist, inter alia, in the means used by the malefactors, the nature, location and number of wounds sustained by the victim, the conduct of the malefactors before, at the time, or immediately after the killing of the victim, the circumstances under which the crime was committed and the motives of the accused. If the victim dies as a result of a deliberate act of the malefactors, intent to kill is presumed.115
[30]

In the instant case, the following circumstantial evidence considered by the RTC and affirmed by the CA satisfactorily established appellants intent to kill her husband and sustained her conviction for the crime, to wit: The prosecution established the following circumstantial evidence: (1) Susan Latosa, the accused, asked her twins to do errands for her. She first asked Sassymae to go to Commissary to buy ice cream, thereafter, she asked Michael to follow his sister at the Commissary which according to the prosecution witnesses was not the usual thing the accused would do; (2) Thereafter, it was only the accused and the victim who were left alone in the house; (3) After the witness Michael, son of the accused and the victim left and proceeded at the barracks located at the back of their house, Susan Latosa was seen running away from the house by Michaels friend named Macmac; (4) Immediately thereafter, Michael Latosa went inside the room of their barracks and saw his father with sort of a hole in the head, blood on the nose and had a gun in his left hand (TSN, May 5, 2003, pp. 7-8, 12-13); (5) The cause of death of the victim Felixberto Latosa was intracranial hemorrhage due to gunshot wound of the head (per Medico-legal Report No. M-052-2002, Exh. P); (6) Susan Latosas paraffin test yielded positive result for the presence of gunpowder nitrate in her right hand; xxx (8) The point of entry of the gunshot wound found on the victim was located at the left temporal region as evidenced by Medico Legal Report No. M-052-2002 (Exhibit P); (9) The victim was a right-handed and the gun was found on the latters left hand; (10) Sassymae Latosa [testified] that she heard Col. Sta. Inez [tell] her mother, bakit mo inamin. Sana pinahawak mo kay Major iyong baril saka mo pinutok. (TSN, May 19, 2002, p. 13); and (11) The children testified that they were informed by the victim regarding the threat of Sta. Inez to the whole family who alleged[ly] has an
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amorous relationship with their mother. Francisco Latosa presented a memorandum that accused was terminated from her teaching job by reason of immorality.116[31] Moreover, the Court finds no cogent reason to review much less depart now from the findings of the RTC as affirmed by the CA that appellants version is undeserving of credence. It is doctrinally settled that the assessments of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court, because of its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct and attitude under grilling examination. These are the most significant factors in evaluating the sincerity of witnesses and in unearthing the truth, especially in the face of conflicting testimonies. Through its observations during the entire proceedings, the trial court can be expected to determine, with reasonable discretion, whose testimony to accept and which witness to believe. Verily, findings of the trial court on such matters will not be disturbed on appeal unless some facts or circumstances of weight have been overlooked, misapprehended or misinterpreted so as to materially affect the disposition of the case.117[32] We find none in this case. One last note. On the matter of damages, the CA awarded exemplary damages in the amount of P25,000.00. We increase the award to P30,000.00 in light of prevailing jurisprudence118[33] fixing the award of exemplary damages to said amount. WHEREFORE, the appeal of Susan Latosa y Chico is DISMISSED. The April 23, 2008 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02192 is hereby AFFIRMED with MODIFICATION. The amount of exemplary damages is increased to P30,000.00. With costs against the accused-appellant. SO ORDERED. G.R. No. 176066 August 11, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ESTELA TUAN y BALUDDA, Accused-Appellant. DECISION LEONARDO-DE CASTRO, J.: For review is the Decision1 dated September 21, 2006 of the Court of Appeals in CA-G.R. CR.H.C. No. 00381, which affirmed with modification the Decision2 dated April 9, 2002 of the Regional Trial Court (RTC), Branch 6, Baguio City, finding accused-appellant Estela Tuan y Baludda guilty in Criminal Case No. 17619-R, of illegal possession of marijuana under Article II, Section 8 of Republic Act No. 6425, otherwise known as "The Dangerous Drugs Act of 1972," as amended; and in Criminal Case No. 17620-R, of violating Presidential Decree No. 1866, otherwise known as the "Illegal Possession of Firearms," as amended.
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On April 5, 2000, two separate Informations were filed before the RTC against accusedappellant for illegal possession of marijuana and illegal possession of firearm. The Informations read: Criminal Case No. 17619-R The undersigned Public Prosecutor accuses ESTELA TUAN Y BALUDDA of the crime of VIOLATION OF SEC. 8, ART. II OF REPUBLIC ACT 6425, AS AMENDED (Illegal Possession of Marijuana), committed as follows: That on or about 24th day of January 2000, at Barangay Gabriela Silang, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully and unlawfully have in her possession, custody, and control the following, to wit: a) Nine (9) bricks of dried Marijuana leaves with an approximate total weight of 18.750 kgs., and b) One (1) plastic bag containing dried Marijuana leaves weighing approximately .3 kg. without any authority of law to do so in violation of the above-cited provision of law.3 Criminal Case No. 17620-R The undersigned Public Prosecutor accuses ESTELA TUAN Y BALUDDA of the crime of VIOLATION OF PRESIDENTIAL DECREE 1866, AS AMENDED (Illegal Possession of Firearm), committed as follows: That on or about the 24th day of January 2000, at Barangay Gabriela Silang, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully and unlawfully have in her possession, custody, and control one (1) Cal. .357 S & W revolver, a high-powered firearm, without any license, permit or authority duly issued by the government to possess or keep the same in violation of the above-cited law.4 Upon her arraignment on April 18, 2000, accused-appellant, assisted by her counsel de parte, pleaded "NOT GUILTY" to both charges.5 Pre-trial and trial proper then ensued. During trial, the prosecution presented four witnesses: Senior Police Officer (SPO) 1 Modesto F. Carrera (Carrera), Police Officer (PO) 2 Jaime Chavez (Chavez), SPO2 Fernando Fernandez (Fernandez), and Forensic Chemist II Marina Carina Madrigal (Madrigal). The events, as recounted by the prosecution, are as follows: At around nine oclock in the morning on January 24, 2000, two male informants namely, Jerry Tudlong (Tudlong) and Frank Lad-ing (Lad-ing) arrived at the office of the 14th Regional CIDG (Criminal Investigation and Detention Group) at DPS Compound, Marcoville, Baguio City, and reported to SPO2 Fernandez, Chief of the Station Drug Enforcement Unit (SDEU), that a certain "Estela Tuan" had been selling marijuana at Barangay Gabriela Silang, Baguio City. Present at that time were Police Superintendent Isagani Neres, Regional Officer of the 14th Regional CIDG; Chief Inspector Reynaldo Piay, Deputy Regional Officer; and other police officers.6

SPO2 Fernandez set out to verify the report of Tudlong and Lad-ing. At around one oclock in the afternoon of the same day, he gave Tudlong and Lad-ing P300.00 to buy marijuana, and then accompanied the two informants to the accused-appellants house. Tudlong and Lading entered accused-appellants house, while SPO2 Fernandez waited at the adjacent house. After thirty minutes, Tudlong and Lad-ing came out of accused-appellants house and showed SPO2 Fernandez the marijuana leaves they bought. After returning to the CIDG regional office, SPO2 Fernandez requested the laboratory examination of the leaves bought from accused-appellant. When said laboratory examination yielded positive results for marijuana, SPO2 Fernandez prepared an Application for Search Warrant for accusedappellants house. SPO2 Fernandez, together with Tudlong and Lad-ing, filed the Application for a Search Warrant before Judge Iluminada Cabato-Cortes (Judge Cortes) of the Municipal Trial Court in Cities (MTCC), Baguio City, Branch IV, at about one oclock in the afternoon on January 25, 2000. Two hours later, at around three oclock, Judge Cortes personally examined SPO2 Fernandez, Tudlong, and Lad-ing, after which, she issued a Search Warrant, being satisfied of the existence of probable cause. The Search Warrant read: TO ANY PEACE OFFICER: GREETINGS: It appearing to the satisfaction of the undersigned of the existence of facts upon which the application for Search Warrant is based, after personally examining by searching questions under oath SPO2 Fernando V. Fernandez of the CAR Criminal Investigation and Detection Group with office address at DPS Compound, Utility Road, Baguio City and his witnesses namely: Frank Lad-ing of Happy Hallow, Baguio City and Jerry Tudlong, of Barangay Kitma, Baguio City, after having been duly sworn to, who executed sworn statements and deposition as witneses, that there is a probable cause to believe that a Violation of R.A. 6425 as amended by R.A. 7659 has been committed and that there are good and sufficient reasons to believe that Estela Tuan, has in her possession and control at her resident at Brgy. Gabriela Silang, Baguio City, the following: - Undetermined Quantity of Marijuana Dried Leaves and/or Marijuana Hashish xxxx which are subject of the offense which should be seized and brought to the undersigned. You are hereby commanded to make an immediate search at anytime in the day the house of the accused Estela Tuan at Brgy. Gabriela Silang, Baguio City, and forthwith seize and take possession of the following: - Undetermined Quantity of Marijuana Dried Leaves and/or Marijuana Hashish x x x nothing follows x x x and bring said items to the undersigned to be dealt with as the law directs. This Search Warrant shall be valid for ten (10) days from date of issue, thereafter, it shall be void.

The officers must conduct the search and seize the above-mentioned personal items in the presence of the lawful occupant thereof or any member of her family or in the absence of the latter, in the presence of two witnesses of sufficient age and discretion residing in the same locality. The officers seizing the items must give a detailed receipt for the same to the lawful occupant of the house in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of the 2 witnesses mentioned, leave a receipt in the place in which the seized items were found; thereafter, deliver the items seized to the undersigned judge together with a true inventory thereof duly verified under oath. Baguio City, Philippines, this 25th day of January, 2000. (SGD)ILUMINADA CABATO-CORTES Executive Judge MTCC, Branch IV7 Upon receipt of the Search Warrant, SPO2 Fernandez, his team supervisor Police Senior Inspector Rodolfo Castel, SPO1 Carrera, Police Senior Inspector Ricarte Marquez and PO2 Chavez implemented the warrant. Before going to the accused-appellants house, SPO2 Fernandez invited barangay officials to be present when the Search Warrant was to be served, but since no one was available, he requested one Eliza Pascual (Pascual), accusedappellants neighbor, to come along. The CIDG team thereafter proceeded to accused-appellants house. Even though accusedappellant was not around, the CIDG team was allowed entry into the house by Magno Baludda (Magno), accused-appellants father, after he was shown a copy of the Search Warrant. SPO2 Fernandez and Police Senior Inspector Ricarte Marquez guarded the surroundings of the house,8 while SPO1 Carrera and PO2 Chavez searched inside. SPO1 Carrera and PO2 Chavez began searching the rooms on the first floor in the presence of Magno and Pascual. They continued their search on the second floor. They saw a movable cabinet in accused-appellants room, below which they found a brick of marijuana and a firearm. At around six oclock that evening, accused-appellant arrived with her son. The police officers asked accused-appellant to open a built-in cabinet, in which they saw eight more bricks of marijuana.9 PO2 Chavez issued a receipt for the items confiscated from accused-appellant10 and a certification stating that the items were confiscated and recovered from the house and in accused-appellants presence. The nine bricks of marijuana were brought to the National Bureau of Investigation (NBI) for examination. The defense, on the other hand, had an entirely different version of what transpired that day. It presented four witnesses, namely, accused-appellant herself; Beniasan Tuan (Beniasan), accused-appellants husband; Magno, accused-appellants father; and Mabini Maskay (Maskay), the Barangay Captain of Barangay Gabriela Silang.1avvphi1 In her testimony, accused-appellant declared that she worked as a vendor at Hangar Market. Sometime in January 2000, while she was selling vegetables at Hangar Market, her son arrived with two police officers who asked her to go home because of a letter from the court.11 At about six oclock in the afternoon, she and her husband Beniasan reached their

residence and found a green paper bag with marijuana in their sala. According to the police officers, they got the bag from a room on the first floor of accused-appellants house. Accused-appellant explained that the room where the bag of marijuana was found was previously rented by boarders. The boarders padlocked the room because they still had things inside and they had paid their rent up to the end of January 2000.12 The police officers also informed accused-appellant that they got a gun from under a cabinet in the latters room, which accused-appellant disputed since her room was always left open and it was where her children play.13 Accused-appellant alleged that a Search Warrant was issued for her house because of a quarrel with her neighbor named Lourdes Estillore (Estillore). Accused-appellant filed a complaint for the demolition of Estillores house which was constructed on the road.14 Beniasan supported the testimony of his wife, accused-appellant. He narrated that he and accused-appellant were at their Hangar Market stall when two police officers came and asked them to go home. Beniasan and accused-appellant arrived at their residence at around six oclock in the evening and were shown the marijuana the police officers supposedly got from the first floor of the house. The police officers then made Beniasan sign a certification of the list of items purportedly confiscated from the house.15 Magno testified that he resided at the first floor of accused-appellants residence. He was present when the search was conducted but denied that the Search Warrant was shown to him.16 He attested that the confiscated items were found from the vacant room at the first floor of accused-appellants house which was previously occupied by boarders. Said room was padlocked but was forced open by the police officers. In the course of the police officers search, they pulled something from under the bed that was wrapped in green cellophane, but Magno did not know the contents thereof.17 The police officers also searched the rooms of accused-appellant and her children at the second floor of the house, during which they allegedly found a gun under the cabinet in accused-appellants room. Magno claimed that he did not personally witness the finding of the gun and was merely informed about it by the police officers.18 Maskay, the Barangay Captain of Barangay Gabriela Silang, Baguio City, was the last to testify for the defense. He corroborated accused-appellants allegation that the latter had a quarrel with Estillore, and this could be the reason behind the filing of the present criminal cases. He further remembered that the members of the CIDG went to his office on January 24, 2000 to ask about the location of accused-appellants house.19 The RTC, in its Decision dated April 9, 2002, found accused-appellant guilty as charged and adjudged thus: WHEREFORE, judgment is hereby rendered as follows: 1. In Criminal Case No. 17619-R, the Court finds the accused Estela Tuan guilty beyond reasonable doubt of the offense of illegal possession of marijuana (nine [9] bricks of dried marijuana leaves with an approximate weight of 18.750 kilograms and the one [1] plastic bag containing the dried marijuana weighing about .3 kilograms) in violation of Section 8, Article II of Republic Act No. 6425 as amended by Section 13 of Republic Act 7659 as charged in the information and sentences her to the penalty of reclusion perpetua and to pay a fine of P500,000.00 without subsidiary imprisonment in case of insolvency. The nine (9) bricks of dried marijuana leaves with an approximate weight of 18.750 kilograms and one (1) plastic bag containing dried marijuana leaves weighing approximately .3 kilograms (Exhibit F, F-1, F-1-A to F-1-J) are ordered confiscated and forfeited in favor of the State to be destroyed immediately in accordance with law.

The accused Estela Tuan being a detention prisoner is entitled to be credited 4/5 of her preventive imprisonment in the service of her sentence in accordance with Article 29 of the Revised Penal Code; and 2. In Criminal Case No. 17620-R, the Court finds the accused Estela Tuan guilty beyond reasonable doubt of the offense of illegal possession of firearms (one [1] caliber .357 S & W revolver), a high powered firearm, without any license, permit or authority issued by the Government to keep the same in violation of Section 1, Republic Act No. 8294 which amended Section 1 of PD 1866 as charged in the information and hereby sentences her, applying the Indeterminate Sentence Law, to imprisonment ranging from 4 years 9 months and 10 days of prision correccional in its maximum period as Minimum to 6 years and 8 months of prision mayor in its minimum period as Maximum and a fine of P30,000.00 without subsidiary imprisonment in case of insolvency. The firearm caliber .357 S & W revolver without serial number is ordered forfeited in favor of the State to be disposed of immediately in accordance with law. The accused Estela Tuan being a detention prisoner is entitled to be credited 4/5 of her preventive imprisonment in the service of her sentence in accordance with Article 29 of the Revised Penal Code.20 The records of the two criminal cases were forwarded to this Court by the RTC, but the Court issued a Resolution21 dated October 13, 2004 transferring said records to the Court of Appeals pursuant to People v. Mateo.22 On September 21, 2006, the Court of Appeals promulgated its Decision. The Court of Appeals held that the contested search and consequent seizure of the marijuana bricks were done pursuant to the Search Warrant validly issued by the MTCC. There was no showing of procedural defects or lapses in the issuance of said Search Warrant as the records support that the issuing judge determined probable cause only after conducting the searching inquiry and personal examination of the applicant and the latters witnesses, in compliance with the requirements of the Constitution. Hence, the appellate court affirmed the conviction of accused-appellant for illegal possession of marijuana. The Court of Appeals, however, modified the appealed RTC judgment by acquitting accusedappellant of the charge for illegal possession of firearm. According to the appellate court, the records were bereft of evidence that the gun supposedly confiscated from accusedappellant was unlicensed. The absence of a firearm license was simply presumed by the police officers because the gun was a defective paltik with no serial number. That the said condition of the gun did not dispense with the need for the prosecution to establish that it was unlicensed through the testimony or certification of the appropriate officer from the Board of the Firearms and Explosives Bureau of the Philippine National Police. In the end, the Court of Appeals decreed: WHEREFORE, premises considered, the instant appeal is PARTLY GRANTED. The assailed Decision of the RTC of Baguio City, Branch 6, dated April 9, 2002, is hereby MODIFIED such that the conviction of accused-appellant for Violation of Section 8, Art. II, RA 6425, as amended, is AFFIRMED while her conviction for Violation of PD 1866, as amended, is REVERSED and SET ASIDE. Accused-appellant is accordingly ACQUITTED of the latter offense.23

In its Resolution dated October 20, 2006, the Court of Appeals gave due course to accusedappellants Partial Notice of Appeal and accordingly forwarded the records of the case to this Court. This Court then issued a Resolution24 dated February 28, 2007 directing the parties to file their respective supplemental briefs, if they so desired, within 30 days from notice. Accusedappellant25 opted not to file a supplemental brief and manifested that she was adopting her arguments in the Appellants Brief since the same had already assiduously discussed her innocence of the crime charged. The People26 likewise manifested that it would no longer file a supplemental brief as the issues have all been addressed in its Appellees Brief. Accused-appellant raised the following assignment of errors in her Brief:
27

THE TRIAL COURT GRAVELY ERRED IN GIVING FULL FAITH AND CREDENCE TO THE INCREDIBLE AND CONTRADICTORY TESTIMONIES OF THE POLICE OFFICERS. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIMES CHARGED DESPITE FAILURE OF THE PROSECUTION TO PROVE HER GUILT BEYOND REASONABLE DOUBT. THE TRIAL COURT ERRED IN NOT CONSIDERING AS VOID THE SEARCH WARRANT ISSUED AGAINST THE ACCUSED-APPELLANT. Given that accused-appellant was already acquitted of the charge of violation of Presidential Decree No. 1866 on the ground of reasonable doubt in Criminal Case No. 17620-R, her instant appeal relates only to her conviction for illegal possession of prohibited or regulated drugs in Criminal Case No. 17619-R. The Court can no longer pass upon the propriety of accused-appellants acquittal in Criminal Case No. 17620-R because of the rule that a judgment acquitting the accused is final and immediately executory upon its promulgation, and that accordingly, the State may not seek its review without placing the accused in double jeopardy. Such acquittal is final and unappealable on the ground of double jeopardy whether it happens at the trial court or on appeal at the Court of Appeals.28 In a prosecution for violation of the Dangerous Drugs Law, such as Criminal Case No. 17619R, a case becomes a contest of credibility of witnesses and their testimonies. In such a situation, this Court generally relies upon the assessment by the trial court, which had the distinct advantage of observing the conduct or demeanor of the witnesses while they were testifying. Hence, its factual findings are accorded respect even finality absent any showing that certain facts of weight and substance bearing on the elements of the crime have been overlooked, misapprehended or misapplied.29 The Court finds no reason to deviate from the general rule in the case at bar. Illegal possession of prohibited or regulated drugs is committed when the following elements concur: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possesses the said drug.30 All the foregoing elements were duly proven to exist in Criminal Case No. 17619-R. The search conducted by SPO1 Carrera and PO2 Chavez in accused-appellants house yielded nine bricks of marijuana. Marijuana is a prohibited drug, thus, accused-appellants possession thereof could not have been authorized by law in any way. Accused-appellant evidently possessed the marijuana freely and consciously, even offering the same for sale.

The bricks of marijuana were found in accused-appellants residence over which she had complete control. In fact, some of the marijuana were found in accused-appellants own room. Accused-appellant challenges the judgment of the RTC, affirmed by the Court of Appeals, finding her guilty of illegal possession of marijuana, by pointing out certain inconsistencies in the testimonies of prosecution witnesses that supposedly manifested their lack of credibility, i.e., the date of the test buy and the manner by which the doors of the rooms of the house were opened. These alleged inconsistencies and contradictions pertain to minor details and are so inconsequential that they do not in any way affect the credibility of the witnesses nor detract from the established fact of illegal possession of marijuana by accused-appellant at her house. The Court has previously held that discrepancies and inconsistencies in the testimonies of witnesses referring to minor details, and not in actuality touching upon the central fact of the crime, do not impair their credibility. Testimonies of witnesses need only corroborate each other on important and relevant details concerning the principal occurrence.31 Inconsistencies as to minor details and collateral matters do not affect the credibility of the witnesses nor the veracity or weight of their testimonies. Such minor inconsistencies may even serve to strengthen their credibility as they negate any suspicion that the testimonies have been rehearsed.32 Accused-appellant further questions the non-presentation as witnesses of Lad-ing and Tudlong, the informants, and Pascual, the neighbor who supposedly witnessed the implementation of the Search Warrant, during the joint trial of Criminal Case Nos. 17619-R and 17620-R before the RTC. This Court though is unconvinced that such non-presentation of witnesses is fatal to Criminal Case No. 17619-R. The prosecution has the exclusive prerogative to determine whom to present as witnesses. The prosecution need not present each and every witness but only such as may be needed to meet the quantum of proof necessary to establish the guilt of the accused beyond reasonable doubt. The testimonies of the other witnesses may, therefore, be dispensed with if they are merely corroborative in nature. The Court has ruled that the non-presentation of corroborative witnesses does not constitute suppression of evidence and is not fatal to the prosecutions case.33 Although Criminal Case No. 17619-R involves illegal possession of marijuana, the following pronouncement of this Court in People v. Salazar,34 relating to the illegal sale of the same drug, still rings true: Neither is her right to confront witnesses against her affected by the prosecution's failure to present the informer who pointed to her as a drug pusher. The presentation of an informant in an illegal drugs case is not essential for conviction nor is it indispensable for a successful prosecution because his testimony would be merely corroborative and cumulative. In a case involving the sale of illegal drugs, what should be proven beyond reasonable doubt is the fact of the sale itself. Hence, like the non-presentation of the marked money used in buying the contraband, the non-presentation of the informer on the witness stand would not necessarily create a hiatus in the prosecutions' evidence. (Emphasis ours.) Lastly, accused-appellant insists that the items allegedly seized from her house are inadmissible as evidence because the Search Warrant issued for her house was invalid for failing to comply with the constitutional and statutory requirements. Accused-appellant

specifically pointed out the following defects which made said Search Warrant void: (1) the informants, Lad-ing and Tudlong, made misrepresentation of facts in the Application for Search Warrant filed with the MTCC; (2) Judge Cortes of the MTCC failed to consider the informants admission that they themselves were selling marijuana; and (3) the Search Warrant failed to particularly describe the place to be searched because the house was a two-storey building composed of several rooms. The right of a person against unreasonable searches and seizure is recognized and protected by no less than the Constitution, particularly, Sections 2 and 3(2) of Article III which provide: SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. SEC. 3. x x x (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. (Emphases ours.) Accordingly, Sections 4 and 5, Rule 126 of the Revised Rules on Criminal Procedure laid down the following requisites for the issuance of a valid search warrant: SEC. 4. Requisites for issuing search warrant. A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. SEC. 5. Examination of complainant; record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. Therefore, the validity of the issuance of a search warrant rests upon the following factors: (1) it must be issued upon probable cause; (2) the probable cause must be determined by the judge himself and not by the applicant or any other person; (3) in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and (4) the warrant issued must particularly describe the place to be searched and persons or things to be seized.35 There is no dispute herein that the second and third factors for a validly issued search warrant were complied with, i.e., personal determination of probable cause by Judge Cortes; and examination, under oath or affirmation, of SPO2 Fernandez and the two informants, Lading and Tudlong, by Judge Cortes. What is left for the Court to determine is compliance with the first and fourth factors, i.e., existence of probable cause; and particular description of the place to be searched and things to be seized. In People v. Aruta,36 the Court defined probable cause as follows:

Although probable cause eludes exact and concrete definition, it generally signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he is charged. It likewise refers to the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the item(s), article(s) or object(s) sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of our rules of evidence of which his knowledge is technically nil. Rather, he relies on the calculus of common sense which all reasonable men have in abundance. The same quantum of evidence is required in determining probable cause relative to search. Before a search warrant can be issued, it must be shown by substantial evidence that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched. A magistrates determination of probable cause for the issuance of a search warrant is paid great deference by a reviewing court, as long as there was substantial basis for that determination. Substantial basis means that the questions of the examining judge brought out such facts and circumstances as would lead a reasonably discreet and prudent man to believe that an offense has been committed, and the objects in connection with the offense sought to be seized are in the place sought to be searched.37 Such substantial basis exists in this case. Judge Cortes found probable cause for the issuance of the Search Warrant for accusedappellants residence after said judges personal examination of SPO2 Fernandez, the applicant; and Lad-ing and Tudlong, the informants. SPO2 Fernandez based his Application for Search Warrant not only on the information relayed to him by Lad-ing and Tudlong. He also arranged for a test buy and conducted surveillance of accused-appellant. He testified before Judge Cortes: COURT: Q. You are applying for a Search Warrant and you alleged in your application that Estela Tuan of Brgy. Gabriela Silang, Baguio City, is in possession of dried marijuana leaves and marijuana hashish, how did you come to know about this matter? A. Through the two male persons by the name of Frank Lad-ing and Jerry Tudlong, Your Honor. Q. When did these two male persons report to your office? A. January 22, Your Honor. Q. This year? A. Yes, your honor. Q. To whom did they report?

A. To me personally, Your Honor. Q. How did they report the matter? A. They reported that a certain Estela Tuan is selling dried Marijuana leaves and marijuana hashish, Your Honor. Q. What else? A. She is not only selling marijuana but also selling vegetables at the Trading Post in La Trinidad, Your Honor. Q. They just told you, she is selling marijuana and selling vegetables, that is already sufficient proof or sufficient probable cause she is in possession of marijuana, what else did they report? A. That they are also selling marijuana in large volume at their house. Q. What did you do when you asked them regarding that matter? A. They had a test buy and they were able to buy some commodities yesterday, Your honor. Q. Who bought? A. Tudlong and Lad-ing, Your Honor. Q. How did you go about it? A. I accompanied the said persons and kept watch over them and gave them money after which, they were able to purchase and when they purchased the said items or drugs, they were even informed that if you wanted to sell then you could come and get. Your Honor. COURT: Q. Where is that P300.00? A. It is with them, Your Honor. Q. You did not entrap her? A. No, Your Honor, because it is only a test buy. Q: And that was January 22. Why did you not apply immediately for search warrant? A: Because we still have to look at the area and see to it that there are really some buyers or people who would go and leave the place, Your Honor. Q: What did you observe?

A: Well, there are persons who would go inside and after going inside, they would come out bringing along with them something else. Q: Did you not interview these people? A: No, Your Honor. We did not bother.38 Lad-ing and Tudlong affirmed before Judge Cortes that they were the ones who informed SPO2 Fernandez that accused-appellant was keeping and selling marijuana at her house, and that they took part in the test buy. Lad-ing narrated: COURT: Q: Mr. Lad-ing, you said that you are working at the Trading Post. What kind of work do you have there? A: I am a middleman of the vegetable dealers, Your Honor. COURT: Q: Did you come to know of this person Estela Tuan? A: Yes, Your Honor, because there was an incident wherein we were conducting our line of business when they came and joined us and we became partners, Your Honor. Q: You said, they, how many of you? A: A certain Jerry Tudlong, Estela Tuan and myself, Your Honor. Q: In other words, Estela Tuan went with you and later on she became your partner in that business? A: Yes, Your Honor. Q: And so what happened when she became a partner of your business? A: When we were about to divide our profit, we then went at their residence at Gabriela Silang, Baguio City, Your Honor. Q: What happened? A: While we then sitted ourselves at the sala, she told us that if we wanted to earn some more, she told us that she has in her possession marijuana which could be sold, Your Honor. Q: And so, what happened? A: After which, she showed the marijuana, Your Honor.

Q: Where was the marijuana? A: It was placed in a cellophane, in a newspaper, Your Honor. Q: How big? A: A dimension of 10 x 4 inches, Your Honor. Q: With that size, where did she show you the box of this cellophane? A: At the place where we were sitted at the receiving room, Your Honor. Q: In other words, she went to get it and then presented or showed it to you? A: Yes, Your Honor. Q: Where did she go, if you know? A: Because at the sala, there is a certain room located at the side that is the place where she got the same, Your Honor. Q: Where is this house of Estela Tuan located, is it along the road or inside the road or what? A: It is near the road but you have to walk in a little distance, Your Honor. Q: Will you describe the place where Estela Tuan is residing? A: Well, it is a two storey house, the walls are made of galvanized iron Sheets, Your Honor. COURT: Q: Do you know who are staying there? A: I do not know who is living with her, however, that is her residence, Your Honor. Q: How many times did you go there? A: It was my second time to go at that time we were sent by PO Fernandez to purchase marijuana, Your Honor. Q: Where is the marijuana now? A: It is in the possession of PO Fernandez, Your Honor. Q: Where is the marijuana placed? A: In a newspaper, Your Honor.

Q: What happened next? A: We handed to her the amount of P300.00, your Honor. Q: And she gave you that marijuana? A: Yes, Your Honor. xxxx Q: How many rooms are there in the first floor of the house of Estela Tuan? A: Three rooms, Your Honor, it has a dining room and beside the place is the receiving room where we sitted ourselves, Your Honor. Q: When you already bought marijuana from her, what did she tell you, if any? A; Well, if we would be interested to buy more, I still have stocks here, Your Honor.39 Tudlong recounted in more detail what happened during the test buy: COURT: Q: My question is, when she told you that she has some substance for sale for profit and you mentioned marijuana, did you talk immediately with Frank or what did you do? A: We reported the matter to the Criminal Investigation and Detection Group, your Honor. xxxx Q: What time? A: We went to the office at 9:00 9:30 oclock in the morning, Your Honor. Q: When you went there, what did you do? A: The amount of P300.00 was given to Frank and we were instructed to purchase, Your Honor. Q: Did you go? A: Yes, Your Honor. xxxx Q: Will you tell what happened when you went to the house of the woman?

A: Well, we were allowed to go inside the house after which, we were made to sit down at the receiving area or sala, Your Honor. Q: When you went there, you were allowed to enter immediately? A: Yes, Your Honor. Q: Who allowed you to enter? A: The female person, Your Honor. Q: What happened when you were asked to be sitted? A: During that time, Frank and the female person were the ones conferring, Your Honor. Q: Did you hear what they were talking about? A: That Frank was purchasing marijuana, Your Honor. Q: What did the woman tell you? A: After we handed the money, a plastic which was transparent, was then handed to Frank, it was a plastic and there was a newspaper inside, Your Honor. xxxx Q: So, you did not actually see what is in the newspaper? A: No, Your Honor, however, I know that that is marijuana. Q: Why? A: Because that was our purpose, to buy marijuana, Your Honor. Q: And you have not gotten marijuana without Estela Tuan informing you? A: Yes, Your Honor. Q: Will you tell us what kind of materials were used in the house of Estela Tuan? A: Two storey, the walls are made of GI sheets, Your Honor.\ Q: Is the house beside the road or do you have to walk? A: It is near the road. Upon reaching the road, you still have to walk a short distance, Your Honor. Q: Where did Estela Tuan get the newspaper placed in a transparent plastic?

A: She got it from a room because were then made to wait at the sala, Your Honor. Q: Did she tell you how much she can sell marijuana? A: She told us, Your Honor. Q: What? A: Well, the marijuana that we purchased was worth P300.00[.] However, we could divide it into two small packs and we could sell it at P20.00 per piece so that you can also have some gain. COURT: Q: After that, to whom did you sell? A: We did not sell the marijuana, Your Honor. Q: I thought you are going to sell marijuana and so you went there? A: We were just instructed by PO Fernandez to verify what we are telling him was true, Your Honor.40 Accused-appellants contention that MTCC Judge Cortes failed to consider the informants admission that they themselves were selling marijuana is utterly without merit. First, even after carefully reviewing the testimonies of Lad-ing and Tudlong before Judge Cortes, this Court did not find a categorical admission by either of the two informants that they themselves were selling marijuana. In fact, Tudlong expressly denied that he and Lad-ing sold the marijuana, having only bought the same from the accused-appellant for the test buy. Moreover, even if the informants were also selling marijuana, it would not have affected the validity of the Search Warrant for accused-appellants house. The criminal liabilities of accused-appellant and the informants would be separate and distinct. The investigation and prosecution of one could proceed independently of the other. Equally without merit is accused-appellants assertion that the Search Warrant did not describe with particularity the place to be searched. A description of the place to be searched is sufficient if the officer serving the warrant can, with reasonable effort, ascertain and identify the place intended and distinguish it from other places in the community. A designation or description that points out the place to be searched to the exclusion of all others, and on inquiry unerringly leads the peace officers to it, satisfies the constitutional requirement of definiteness.41 In the case at bar, the address and description of the place to be searched in the Search Warrant was specific enough. There was only one house located at the stated address, which was accused-appellants residence, consisting of a structure with two floors and composed of several rooms. In view of the foregoing, the Court upholds the validity of the Search Warrant for accusedappellants house issued by MTCC Judge Cortes, and any items seized as a result of the search conducted by virtue thereof, may be presented as evidence against the accusedappellant.

Since it is beyond any cavil of doubt that the accused-appellant is, indeed, guilty of violation of Article II, Section 8 of Republic Act No. 6425, as amended, the Court shall now consider the appropriate penalty to be imposed upon her. Article II, Section 8, in relation to Section 20(3), of Republic Act No. 6425, as amended, provides: SEC. 8. Possession or Use of Prohibited Drugs.- The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall possess or use any prohibited drug subject to the provisions of Section 20 hereof. (As amended by R.A. 7659) Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instruments of the Crime. - The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the following quantities: 1. 40 grams or more of opium; 2. 40 grams or more of morphine; 3. 200 grams or more of shabu or methylamphetamine hydrochloride; 4. 40 grams or more of heroin; 5. 750 grams or more of Indian hemp or marijuana; 6. 50 grams or more of marijuana resin or marijuana resin oil; 7. 40 grams or more of cocaine or cocaine hydrocholoride; or 8. In the case of other dangerous drugs, the quantity of which is far beyond therapeutic requirements, as determined and promulgated by the Dangerous Drugs Board, after public consultations/hearings conducted for the purpose. (Emphasis supplied.) Pursuant to Article II, Section 8 of Republic Act No. 6425, as amended, illegal possession of 750 grams or more of the prohibited drug marijuana is punishable by reclusion perpetua to death. Accused-appellant had in her possession a total of 19,050 grams of marijuana, for which she was properly sentenced to reclusion perpetua by the RTC, affirmed by the Court of Appeals. In the same vein, the fine of P500,000.00 imposed upon accused-appellant by the RTC, affirmed by the Court of Appeals, is also correct, as the same is still within the range of fines imposable on any person who possessed prohibited drugs without any authority, under Article II, Section 8 of Republic Act No. 6425, as amended. WHEREFORE, premises considered, the Decision dated September 21, 2006 of the Court of Appeals in CA-G.R. CR.-H.C. No. 00381, is hereby AFFIRMED in toto. No costs. SO ORDERED.

G.R. No. 189841

December 15, 2010

PEOPLE OF THE PHILIPPINES, Appellee, vs. EFREN DITONA y MONTEFALCON, BERNARD FERNANDEZ and ERNESTO EMNAS, Accused. EFREN DITONA y MONTEFALCON, Appellant. DECISION ABAD, J.: This case is about the need for the prosecution to show proof that the integrity of seized prohibited drugs has been preserved from the moment of seizure to the moment they are presented in court. The Facts and the Case The prosecution evidence shows that the Drug Enforcement Group of the Olongapo City Police had received reports of rampant selling of illegal drugs at Compound 7-9th Street, Barangay Ilalim, Olongapo City. On July 19, 2002, within the election period, the police conducted a buy-bust operation at the place. SPO1 Alfredo Flores, acting as a poseur-buyer, and an informer met the accused Efren M. Ditona in front of the latters house. SPO1 Flores gave Ditona the marked money consisting of two P100 bills in exchange for one plastic sachet of shabu. At a signal, PO3 Norberto Ventura and PO2 Allan Delos Reyes rushed towards the gate of the compound to make the apprehension but, before they could reach SPO1 Flores and Ditona, the latter noticed their movement and ran into his house. The officers arrested him there and four others who were then sniffing shabu and preparing aluminum tin foils. The police frisked them and found the marked money on Ditonas person together with transparent plastic sachets containing what appeared to be shabu substance and one cal. 22 magnum revolver with six live ammunitions. They confiscated the marked money, the suspected shabu substance in sachets, the gun, and the ammunitions.1 Upon laboratory examination, the substance proved positive for methamphetamine hydrochloride or shabu.2 The City Prosecutor of Olangapo City filed four separate informations against Ditona before the Regional Trial Court (RTC) of Olongapo City for selling and possessing illegal drugs3 in Criminal Cases 436-20024 and 437-2002;5 violation of the Omnibus Election Code6 in Criminal Case 438-2002;7 and illegal possession of firearms8 in Criminal Case 466-2002.9 The RTC tried all four cases jointly. On July 11, 2007 the RTC10 found Ditona guilty of all the charges and sentenced him to suffer the penalty of life imprisonment (reclusion perpetua) in Criminal Case 436-2002; imprisonment from 12 years and one day to 20 years in Criminal Case 437-2002; imprisonment from one year to six years in Criminal Case 438-2002; and imprisonment from four years, two months, and one day to six years of prision correccional and a fine of P15,000.00 in Criminal Case 466-2002. Ditonas denial, said the RTC, cannot prevail over the police officers positive declarations considering that the latter did not have any motive to concoct a false charge against him and presumably performed their official duties regularly.

On appeal, the Court of Appeals (CA)11 affirmed the conviction for the crimes relating to the prohibited drugs but modified the RTC ruling with respect to the other charges after observing that it erred in convicting Ditona separately for illegal possession of firearms and violation of the Omnibus Election Code. The Issue Presented The sole issue for resolution is whether or not the prosecution was able to establish beyond reasonable doubt Ditonas guilt for illegal possession and sale of shabu. The Courts Ruling To successfully prosecute an accused for selling illegal drugs, the prosecution has to prove: (1) the identities of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment for it.12 On the other hand, for an accused to be convicted of possession of illegal drugs, the prosecution is required to prove that: (1) the accused was in possession of prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the prohibited drug.13 In both instances, the State has to prove as well the corpus delicti, the body of the crime.14 It must be shown that the suspected substance the police officers seized from the accused is the same thing presented in court during the trial. Thus, the chain of custody rule is essential to ensure that doubts regarding the identity of the evidence are removed through the monitoring and tracking of the movements of the seized drugs from the accused, to the police, to the forensic chemist, and finally to the court.15 The witnesses should be able to describe these movements to ensure that there had been no change in the condition of the item and that no one who did not belong in the chain had access to the same.16 Here, the prosecution dismally failed to prove the corpus delicti since there were substantial gaps in the chain of custody of the seized drugs which raised doubts on the authenticity of the evidence presented in court. To begin with, SPO1 Flores, PO3 Ventura, and PO2 Delos Reyes executed a Joint Affidavit,17 which formed part of their direct testimonies, in which they narrated the details of the buybust operation. Yet, they did not say how they handled the seized drugs from the time they frisked Ditona until they brought him to the police station. They also omitted these important points in their testimonies on direct and cross-examination. PO2 Delos Reyes testified on the details of the seized drugs, the gun, and the ammunitions taken from the persons in the house but he did not specify what things he confiscated from Ditona. PO3 Ventura, on the other hand, merely testified that he issued a receipt for the things the police seized, thus:18 PROSECUTOR: As regards the shabu, we will maintain it to be collectively marked as Exhibit "B." Nowwill you tell us briefly your participation in this police operation? A: I was tasked as back-up together with PO3 [sic] Allan Delos Reyes. It was SPO1 Alfredo Flores who acted as poseur-buyer. Q: After the consummation, Alfredo Flores gave his pre-arranged signal and when Ditona saw it, and sensed the presence the other members of the team he tried to ran inside his

house and thats the time we gave chase upon which we saw another person inside the sala? A: Yes Sir. Q: By the way, what was the lighting condition when this incident transpired? A: From the light post, it is well-lightednear the house at No. 7-9th St. Q: In connection with this drug operation, do you recall having prepared a receipt of evidence or property seized? A: Yes Sir. Q: If you see this again, will you be able to recognize it? A: Yes Sir. Q: I am showing to you a document which we request to be marked as Exhibit "L," please go over this and tell if this is the receipt of property seized you are referring to? A: Yes Sir, this is it. Q: Can you identify the signatures indicated below? A: This is Alfredo Flores, this is my signature and this is Allan Delos Reyes signature. Finally, SPO1 Flores testified only that he was the one who bought the shabu from Ditona, thus:19 Q: You said you were able to buy shabu on July 19, 2002, from whom were you able to buy shabu? A: From Efren Ditona, Sir. Q: Will you tell the Court the quantity of shabu you were able to purchase? A: One sachet of shabu containing 0.2 grams. Q: If you see the stuff you were able to buy, will you be able to recognize this? ATTY. COLOMA: We stipulate that the witness can identify the stuff. Quite clearly, the prosecution failed to establish the required chain of custody of the prohibited drugs through the testimonies of the police officers. While the RTC noted that SPO1 Flores and PO3 Ventura placed their initials, "AF" and "NV," on the seized drugs, they did not identify the markings as theirs during their direct testimonies nor did they testify when and where they made such markings. Moreover, they failed to show how the seized

drugs reached the laboratory technician who examined it and how the same were stored pending turnover to the court.20 Indeed, there is no room to apply the presumption of regularity in the police officers performance of official duty. While the testimonies of the police officers who apprehended the accused are generally accorded full faith and credit because of the presumption that they have performed their duties regularly, such presumption is effectively destroyed where the performance of their duties is tainted with failure to comply with the prescribed procedure and guidelines.211avvphi1 The drug enforcement agencies of the government and the prosecution should put their acts together to ensure that the guilty are punished and the innocent absolved. Poor handling and preservation of the integrity of evidence show lack of professionalism and waste the time that the courts could use for hearing and adjudicating other cases. Prosecutors ought not to file drugs cases in court unless the law enforcement agencies are able to show documented compliance with every requirement of Section 21 of Republic Act 9165, the Comprehensive Dangerous Drugs Act of 2002. Likewise prosecutors ought to have a checklist of the questions they should ask their witnesses in drugs cases that would elicit the required proof. WHEREFORE, the Court GRANTS the petition and MODIFIES the assailed Decision of the Court of Appeals in CA-G.R. CR-HC 03095 dated July 31, 2009 in that accused-appellant Efren Ditona y Montefalcon is ACQUITTED with respect to the crimes charged in Criminal Cases 436-2002, 437-2002, and 466-2002. The Court, however, AFFIRMS the finding of the Court of Appeals of his guilt beyond reasonable doubt with respect to the charge of violation of Section 261(q) in relation to Section 264 of the Omnibus Election Code in Criminal Case 438-02 and the corresponding penalty of imprisonment from one (1) year to six (6) years meted out to him. SO ORDERED. G.R. No. 179937 July 17, 2009

PEOPLE OF THE PHILIPPINES, Appellee, vs. GERALD LIBREA, Appellant. DECISION CARPIO MORALES, J.: Gerald Librea (appellant) was charged and convicted by the Regional Trial Court (RTC) of Lipa City, Batangas of violation of Section 5, Article II of Republic Act (RA) No. 9165. The Information against appellant reads: That on or about the 9th day of October 2003 at about 7:30 oclock [sic] in the evening at Basang Hamog, Barangay 1, Lipa City, Philippines, the above-named accused, without authority of law, did then and there willfully, unlawfully sell, deliver, dispose or give away to a police officer/informer-poseur buyer, 0.04 grams/s of Methamphetamine Hydrochloride locally known as "shabu", which is a dangerous drug, contained in one (1) plastic sachet/s.1 (Underscoring supplied)

At the pre-trial, appellant admitted, among other things, the "authenticity and due execution of Chemistry Report No. D-2424-03 prepared by P/Sr. Insp. Lorna R. Tria, but den[ied] that the specimen subject matter thereof came from [him]."2 From the testimonies of prosecution witnesses PChief Insp. Dante Novicio (Novicio) and SPO1 Alexander Yema (Yema) of the Anti-Illegal Drugs Special Operation Task Force (Task Force) of the Lipa City Police Station, the following version is gathered:3 On receipt from an "asset-informant" by Novicio of information that appellant was actively pushing drugs in various areas of Lipa City, surveillance and a test-buy was conducted which validated the information.1avvphi1 A buy-bust operation was soon conducted on October 9, 2003 at around 7:30 in the evening at "a squatters area" in Basang Hamog, Barangay 1, Lipa City, about 30 meters from the police station. Novicio, Yema, and PO1 Cleofe Pera (Cleofe), in the company of the informant who was given two P100 bills on which were marked "DPN" beside their serial numbers,4 repaired to Basang Hamog. As the informant approached appellant who was standing by a store, Novicio, Yema, and Cleofe positioned themselves at a spot seven to ten meters away from appellant. After the informant spoke to appellant to whom he gave the marked bills, appellant handed him a small plastic sachet which he scrutinized and brought to the members of the buy-bust team. Soon after Yema received the sachet and smelled it to be shabu, he, Novicio, and Cleofe approached appellant, introduced themselves as members of the police force, informed him of his rights, arrested him, and conducted a body search which yielded the two marked P100 bills. Appellant was thereupon brought to the police station where Yema marked the sachet with "ACY" (representing his initials) on one side and "GCL" (representing the initials of appellant) on the other. Cleofe at once prepared the Inventory of Confiscated/Seized Items (Inventory)5 on which appellant refused to affix his signature and a request for laboratory examination. Upon the other hand, appellant gave his version as follows:6 After 7:00 in the evening of October 9, 2003, while he was at the store of his aunt Ester Calingasan (Ester) waiting for the pancit which he had ordered, three police officers arrived, arrested him, and forcibly took him to the police headquarters where he was detained. No test-buy or buy-bust operation took place. He saw the Inventory and the plastic sachet for the first time during the trial. Ester corroborated appellants testimony, adding that after he was arrested, she fetched his mother and accompanied her to the police headquarters where appellant was detained. Branch 12 of the Lipa City RTC convicted appellant as charged, disposing as follows: WHEREFORE, the Court finds the accused, GERALD LIBREA y CAMITAN, guilty beyond reasonable doubt, as principal by direct participation, of the crime of Violation [of] Section 5, 1st paragraph, Article II of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002 and sentences him to suffer the penalty of LIFE IMPRISONMENT and pay a fine of P500,000.00 and the costs.

The 0.04 gram of methamphetamine hydrochloride subject of this case is forfeited in favor of the government and ordered turned over to the Chief of Police of Lipa City for proper disposal in accordance with law. Also, let the corresponding commitment order be issued for the transfer of detention of the accused to the Bureau of Correction, Muntinlupa City, Metro Manila. Given this 14th day of September, 2005 at Lipa City.7 Before the Court of Appeals, appellant faulted the trial court I x x x IN CONVICTING [HIM] FOR VIOLATION OF SECTION 5, ARTICLE II OF R.A. 9165 NOTWITHSTANDING THE NON-PRESENTATION OF THE POSEUR-BUYER. II x x x IN GIVING CREDENCE TO THE TESTIMONIES OF THE PROSECUTION POLICE WITNESSES NOTWITHSTANDING THE IRREGULARITIES IN THE PERFORMANCE OF THEIR DUTIES. III x x x IN FINDING [HIM] GUILTY OF THE CRIME CHARGED DESPITE THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.8 (Underscoring supplied) By Decision9 of June 29, 2007, the Court of Appeals affirmed the trial courts decision, hence, the present appeal.10 Both appellant and the Solicitor General adopted their respective arguments in the Briefs they had filed before the appellate court.11 Appellant assails, among other things, the failure of the buy-bust team to photograph the allegedly confiscated sachet and to have a representative of the media as well as of the Department of Justice (DOJ) sign the Inventory of Confiscated/Seized Items, as required under Section 21 of RA 9165.12 Non-compliance by the apprehending/buy-bust team with Section 21 of R.A. No. 9165 is not fatal as long as there is justifiable ground therefor and the integrity and the evidentiary value of the confiscated/seized items are properly preserved by the apprehending officer/team.13 The prosecution justifies the failure of the buy-bust team to have the confiscated sachet photographed with the non-availability of a photographer.14 And it claims that no DOJ, as well as media representative, arrived at the time and after the buy-bust operation took place. Without passing on the merits of this claim, the Court finds that the integrity, as well as the evidentiary value of the confiscated item, was not shown to have been preserved. While Yema claimed to have marked the plastic sachet at the police station, what was done to it afterwards remains unexplained. And there is no showing that the substance allegedly confiscated was the same substance which was subjected to examination.15 As earlier mentioned, while during pre-trial appellant

admitted the authenticity and due execution of the laboratory report, he denied that the specimen subject thereof was taken from him. More. The request for forensic examination, together with the specimen, was delivered to the laboratory by a certain SPO4 D.R. Mercado (Mercado),16 who was not part of the buybust team, at 11:15 in the morning of October 10, 2003, a day after the conduct of the alleged buy-bust operation. There is no showing, however, under what circumstances Mercado, who did not take the witness stand, came into possession of the specimen. Apropos is the Courts ruling in People v. Ong:17 x x x [T]he Memorandum-Request for Laboratory Examination . . . indicates that a certain SPO4 Castro submitted the specimen for examination. However, the rest of the records of the case failed to show the role of SPO4 Castro in the buy-bust operation, if any. x x x x x x Since SPO4 Castro appears not to be part of the buy-bust team, how and when did he get hold of the specimen examined by Police Inspector Eustaquio? Who entrusted the substance to him and requested him to submit it for examination? For how long was he in possession of the evidence before he turned it over to the PNP Crime Laboratory? Who else had access to the specimen from the time it was allegedly taken from appellants when arrested? These questions should be answered satisfactorily to determine whether the integrity of the evidence was compromised in any way. Otherwise, the prosecution cannot maintain that it was able to prove the guilt of the appellants beyond reasonable doubt.18 (Emphasis and underscoring supplied) On this score alone, the Court finds that the prosecution failed to prove beyond reasonable doubt the guilt of appellant. His acquittal is thus in order. WHEREFORE, the Decision of the Court of Appeals dated June 29, 2007 is REVERSED and SET ASIDE. Appellant, GERALD LIBREA, is ACQUITTED of the crime charged and is ordered released from custody, unless he is being held for some other lawful cause. Let a copy of this Decision be furnished the Director of the Bureau of Corrections, Muntinlupa City, who is DIRECTED to implement it immediately and to inform this Court within five (5) days of action taken. SO ORDERED. G.R. No. 184761 : September 8, 2010 PEOPLE OF THE PHILIPPINES, Appellee, vs. JULIUS GADIANA y REPOLLO, Appellant. DECISION CARPIO MORALES, J.: Julius Gadiana y Repollo (appellant) was convicted of violation of Section 11, Article II of Republic Act No. 9165 (The Comprehensive Dangerous Drugs Act) by the Regional Trial Court of Cebu City, Branch 15 under what appears to be a form Information1cralaw reading:chanroblesvirtuallawlibrar The undersigned Prosecutor II of the City of Cebu accuses Julius Gadiana y Repollo, for Violation of Sec. 11, Art. 9165, committed as follows:chanroblesvirtuallawlibrar

That on or about the 7th day of February, 2004, at about 3:40 P.M. in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, x x x, with deliberate intent, did then and there have in his/her possession and under his/her control the following:chanroblesvirtuallawlibrar A - Two (2) heat-sealed transparent plastic packets of white crystalline substance with a total net weight of 0.09 grams. locally known as 'SHABU', containing methamphetamine hydrochloride a dangerous drug/s, without being authorized by law.2cralaw CONTRARY TO LAW. BAIL RECOMMENDED: P200.000 Cebu City, Philippines, February 19, 2004. JESUS P. FELICIANO Prosecutor II, Cebu City3cralaw (underscoring in the original) At the pre-trial, the parties stipulated "that the Forensic Officer Jude Daniel Mendoza will testify, and affirm and confirm his findings and conclusion within the four corners of his forensic report" with the clarification that what was admitted was the "existence but not the source" 4cralaw of the two sachets. Lone prosecution witness PO1 Julius Busico (PO1 Busico) adopted as his testimony at the witness stand the February 9, 2004 Joint Affidavit5cralaw which he and PO3 Joseph Dinauanao (PO3 Dinauanao) executed. In the Joint Affidavit, the police officers related the following version:chanroblesvirtuallawlibrar At about 3:40 P.M. on February 7, 2004, while PO1 Busico, along with PO3 Dinauanao, PO2 Erwin Ferrer, and three other police officers, was conducting saturation drive at Sitio San Roque, Barangay Mambaling, Cebu City, he chanced upon appellant holding two small plastic sachets containing crystalline substances which he was about to place inside his pocket.6cralaw The policemen, identifying themselves as such, apprehended appellant at once, confiscated the two sachets from his right hand, brought him with the confiscated sachets to their office, and turned over the sachets to the Philippine National Police (PNP) Crime Laboratory Service which found them positive for methamphetamine hydrochloride.7cralaw PO1 Busico added the following details at the witness stand:chanroblesvirtuallawlibrar PROSEC. AGAN:chanroblesvirtuallawlibrar Q After you recovered these [two plastic sachets] from the possession of the accused, what did you do? A We submitted it to the PNP Crime Laboratory.

Q Can you still recall who prepared the letter request for laboratory examination? A PO2 Erwin Ferrer. Q If shown to you would you be able to identify it? A Yes. Q Are you referring to this letter request dated February 17 [sic], 2004? A Yes. PROSEC. AGAN:chanroblesvirtuallawlibrar We request, your Honor, that the letter request be marked as our exhibit C. COURT:chanroblesvirtuallawlibrar Mark it. PROSEC. AGAN:chanroblesvirtuallawlibrar Who brought the letter request to the PNP Crime Laboratory? A PO2 Erwin Ferrer. Q Do you know the result of the laboratory examination? A. Yes. Q What was the result? A Positive. PROSEC. AGAN:chanroblesvirtuallawlibrar We request, your Honor, that Chemistry Report No. D-241-2004 be marked as our Exhibit D. COURT:chanroblesvirtuallawlibrar Mark it. PROSEC. AGAN:chanroblesvirtuallawlibrar Q Do you affirm and confirm to the truthfulness of the contents [of the] joint affidavit? A Yes ma'am.8cralaw (Underscoring supplied) Upon the other hand, appellant, denying the accusation, gave the following version:chanroblesvirtuallawlibrar

While he was, on the date and time in question, walking along an alley in Sitio Tromar, Mambaling, Cebu City (where his house is situated) on his way to Sitio Paglaum where he used to stand by,9cralaw after three of the six above-named policemen passed by him, the fourth, prosecution witness PO1 Busico, uttered "This is the one, this is the one. This is very obvious."10cralaw PO1 Busico at once held his arms and dipped into his (appellant's) pocket11cralaw upon which he (appellant) suggested that he (appellant) would just be the one to do it,12cralaw thereby catching the policeman's ire. He was at once handcuffed by PO1 Busico who is familiar to him as he always saw him "every Friday afternoon [when he and company went] roving there." Appellant specifically denied the claim of PO1 Busico that he was holding two plastic packs of shabu which he was about to pocket. By Decision of October 12, 2005, Branch 15 of the Regional Trial Court of Cebu City convicted appellant as charged, disposing as follows:chanroblesvirtuallawlibrar WHEREFORE, in view of the foregoing, the Court finds the accused Julius Gadiana y Repollo GUILTY beyond reasonable doubt for violation of Section 11, Article II of R.A. 9165 and applying the Indeterminate Sentence Law, he is hereby sentenced to suffer imprisonment of EIGHT (8) YEARS AND ONE (1) DAY OR PRISION MAYOR AS MINIMUM TO TWELVE (12) YEARS AND ONE (1) DAY OF RECLUSION TEMPORAL AS MAXIMUM AND TO PAY A FINE OF THREE HUNDRED THOUSAND (P300,000.00) PESOS together with all accessory penalties provided for by law. The physical evidence is hereby forfeited in favor of the government to be disposed of in accordance with law. SO ORDERED.13cralaw In convicting appellant, the trial court gave a one-paragraph ratiocination, viz. With the bare and lame denials of the accused, abjectly uncorroborated and without substantiation, apart from his self-serving attempt at extenuation as against the positive testimony of the arresting police officer who enjoys the presumption of regularity in the performance of his official duties, there being no showing of malicious motive to testify against the accused, it is the Court's view that the State has successfully discharged its prosecutory function by sufficiently showing the concurrence of the elements of the offense charged.14cralaw (emphasis and Underscoring supplied) On appeal, the appellate court, by Decision of April 30, 2008,15cralaw affirmed that of the trial court's but modified the penalty, holding that the nomenclature and periods of the penalties under the Revised Penal Code should not have been used by the trial court in the determination thereof as it (the trial court) should have been guided by the provisions of the Indeterminate Sentence Law. Thus the appellate court disposed:chanroblesvirtuallawlibrar WHEREFORE, the appealed Decision dated October 12, 2005 of the RTC of Cebu City, in Criminal Case No. CBU-68618 convicting accused-appellant Julius Gadiana y Repollo for violation of Section 11, Article II of R.A. 9165, is AFFIRMED with MODIFICATION. As modified, accused-appellant is sentenced to suffer to suffer an indeterminate penalty of imprisonment from TWELVE (12) YEARS AND ONE (1) DAY as minimum, to FOURTEEN (14) YEARS as maximum. SO ORDERED.16cralaw (Underscoring supplied) Hence, the present appeal.

Appellant maintains that his guilt was not proven beyond reasonable doubt. As reflected above, the trial court credited the "positive" version of PO1 Busico in light of the presumption of regularity in the performance of his official duties and absent a showing of malice. Recall, however, that during the pre-trial, the "existence but not the source" of the two sachets was stipulated on by the parties. It was thus incumbent on the prosecution to prove the chain of custody rule. Chain of custody establishes the identity of the subject substance.17cralaw It requires that testimony be presented about every link in the chain, from the moment the item is seized up to the time it is offered in evidence.18cralaw When nagging doubts persist on whether the item confiscated is the same specimen examined and established to be prohibited drug,19cralaw there can be no crime of illegal possession of a prohibited drug. Except for the charge sheet20cralaw prepared against appellant which stated that evidence consisted of "two (2) heat-sealed clear plastic sachets containing shabu with markings 'JGR1' and 'JGR-2,'" nowhere in the record is a showing that the marking was done in the presence of appellant or his representatives or that a physical inventory and photograph of the seized items were taken as required under paragraph 1, Section 21, Article II of R.A. No. 9165 reading:chanroblesvirtuallawlibrar 1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. (Emphasis supplied) xxxx Non-compliance with the above-quoted requirements does not of course necessarily render void and invalid the seizure of the dangerous drugs, provided that there are justifiable grounds to warrant exception therefrom.21cralaw The prosecution must, therefore, explain the reasons behind the procedural lapses22cralaw and must show that the integrity and value of the seized evidence had been preserved.23cralaw In their Joint Affidavit24cralaw which served as part of PO1 Busico's testimony, he and PO3 Joseph merely stated that they brought appellant, together with the confiscated evidence, to their office for proper documentation and filing of appropriate charges. No statement was made that the allegedly seized sachets were the same sachets which were subject of the letter-request for laboratory examination prepared and brought to the Crime Laboratory by PO2 Ferrer per PO1 Busico. The general rule is that the trial court's findings, its assessment of probative weight of the evidence of the parties, and its conclusion anchored on such findings are entitled to great respect as, among other things, it has the opportunity to observe the demeanor of witnesses.25cralaw During his brief testimony earlier quoted, aside from confirming the contents of the Joint Affidavit he executed with PO3 Dinauanao which served as his direct testimony, PO1 Busico

declared that PO2 Edwin Ferrer prepared and brought the letter-request for laboratory examination to the PNP Crime Laboratory. On pages 6-7 of the Records which appear to be a segment of the police blotter reflecting the arrest on February 7, 2004 of appellant, appears the following information:chanroblesvirtuallawlibrar A/Taken: Evidence . . . submitted to the PNP Crime Laboratory. Received by: SPO1 Abundio C. Cabahug, PNP Not only was PO1 Busico's testimony that Ferrer prepared the letter-request for laboratory examination hearsay as he did not claim having seen PO3 Dinauanao actually prepare it. The transcripts of stenographic notes do not show that the trial court tested the credibility of witness PO1 Busico and of his testimony. The trial court's conviction of appellant upon its above-quoted one-paragraph ratiocination, which was affirmed by the appellate court, does not thus merit this Court's affirmance. Parenthetically, appellant's arrest, not to mention resulting confiscation of the alleged confiscation of the plastic sachets of crystalline substances in his possession, leaves nagging doubts on its validity in light of the fact that what PO1 Busico merely saw was appellant's placing of the plastic sachets in his pocket which, without more, does not justify his warrantless arrest under the Rules.26cralaw WHEREFORE, the April 30, 2008 Decision of the Court of Appeals is REVERSED and SET ASIDE. Appellant, Julius Gadiana y Repollo, is ACQUITTED of the crime charged and ordered immediately RELEASED from custody, unless he is being held for some other lawful cause. The Director of the Bureau of Corrections is ORDERED to forthwith implement this decision and to INFORM this Court, within five days from receipt hereof, of action taken. Let a copy of this Decision be forwarded to the Secretary of Justice, the PNP Director, and the Director General of the Philippine Drug Enforcement Agency, for information and guidance. No costs. SO ORDERED. G.R. No. 187503 September 11, 2009

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. TECSON LIM Y CHUA and MAXIMO FLORES Y VITERBO, Accused-Appellants. DECISION CHICO-NAZARIO, J.: For review is the Decision1 dated 18 November 2008 of the Court of Appeals in CA-G.R. CR HC No. 01871, which affirmed in toto the Decision2 dated 12 February 2003 of the Regional Trial Court (RTC) of Paraaque City, Branch 258, in Criminal Case No. 00-0100, finding herein appellants Tecson Lim y Chua (Lim) and Maximo Flores y Viterbo (Flores) guilty beyond reasonable doubt of violation of Section 15,3 Article III of Republic Act No. 6425,4 as amended by Republic Act No. 7659,5 sentencing each of them to suffer the penalty of reclusion perpetua and ordering each to pay a fine of P2,000,000.00.

Appellants Lim and Flores were charged with violation of Section 15, Article III in relation to Section 21(b),6 Article IV of Republic Act No. 6425, as amended, in an Information7 which reads: That on or about [3 December 1999], in Paraaque City, Philippines, and within the jurisdiction of the Honorable Court, the above-named [appellants], conspiring and confederating together and mutually aiding and abetting one another, did then and there willfully, unlawfully, and feloniously deliver and/or sell to a poseur-buyer methamphetamine hydrochloride, a regulated drug which is commonly known as shabu and with an approximate weight of nine hundred seventy five point four (975.4) grams, without any authority whatsoever.8 During arraignment, the appellants, assisted by their counsel de parte, refused to enter a plea after the Information was read to them; thus, the court a quo ordered that a plea of NOT GUILTY be entered into the records for both appellants. Thereafter, trial on the merits ensued. The prosecution presented the testimony of the following witnesses: Police Officer (PO) 1 Mangontawar Amerol (PO1 Amerol), member of the Philippine National Police (PNP) Narcotics Group, Camp Crame, Quezon City, who acted as the poseur-buyer in the buy-bust operation on 3 December 1999; Annalee R. Forro, Forensic Chemical Officer of the PNP Crime Laboratory, Camp Crame, Quezon City; and Police Senior Inspector Eleazar Mata (P/Sr. Insp. Mata), member of the PNP Narcotics Group, Camp Crame, Quezon City, who conducted a briefing of his team members on the conduct of their buy-bust operation on 3 December 1999. The prosecutions version of the facts of this case based on the testimony of the aforesaid witnesses is as follows: In the early afternoon of 3 December 1999, the PNP Narcotics Group, Camp Crame, Quezon City, received information from their reliable informant that appellant Lim is engaged in illegal drug activities. Immediately, a buy-bust operation team, composed of PO1 Amerol, Senior Police Officer 1 Salvador M. Sorreda (SPO1 Sorreda), PO1 Fabo, PO1 Musni, PO1 Fabian, P/Sr. Insp. Mata, as the team leader, and others was organized to conduct a buy-bust operation at the designated place, which was at McDonalds along Dr. A. Santos Avenue, Sucat, Paraaque City. P/Sr. Insp. Mata, as the team leader, called for a briefing of his team regarding the conduct of their buy-bust operation and designated PO1 Amerol as the poseurbuyer.9 During the said briefing, the team was apprised that the methamphetamine hydrochloride (shabu) involved in their buy-bust operation weighed almost one kilo and was valued at P700,000.00.10 In preparation therefor, the team prepared seven bundles of boodle money11 and two genuine P1,000.00 bills bearing Serial No. AG 150525 and No. AR 252979 with the markings "SMS," written by PO1 Amerol, as marked money.12 The said two genuine P1,000.00 bills were placed on top of the two bundles of boodle money.13 At around 2:00 p.m., the buy-bust team proceeded to the designated place on board three vehicles. PO1 Amerol and their informant rode together in a white Toyota Corolla car. At around 3:30 p.m., PO1 Amerol and their informant arrived at the parking lot of McDonalds along Dr. A. Santos Avenue, Sucat, Paraaque City, while the rest of the buy-bust team positioned themselves strategically within its premises. Then, PO1 Amerol and their informant waited for appellant Lim to arrive. At around 4:30 p.m., appellant Lim, together with appellant Flores, arrived on board a red Daihatsu Charade car with Plate No. TEN 576. Subsequently, appellant Lim went out of the car and talked to their informant.14 During the time that the two were talking to each other, PO1 Amerol was about nine meters away from

them, while P/Sr. Insp. Mata, who was standing beside the road as if waiting for a ride, was about 10 meters away from appellant Lim and their informant.15 After a while, appellant Lim and their informant approached him, and the latter introduced him to appellant Lim as Mike Amerol, a Muslim who wanted to buy shabu. Appellant Lim asked PO1 Amerol if he had with him the money. Upon being shown the marked money placed inside a brown envelope, together with the seven bundles of boodle money, appellant Lim went back to the car. Thereafter, appellant Flores alighted from the car carrying a black bag. Both appellants approached PO1 Amerol. Appellant Flores opened the black bag and showed him its contents. PO1 Amerol saw therein a tape-sealed transparent plastic bag containing shabu weighing about one kilo. Appellant Lim then asked for the agreed amount of P700,000.00 in payment thereof.16 PO1 Amerol handed the money to appellant Lim, and appellant Flores gave him the black bag with a tape-sealed transparent plastic bag containing shabu.17 After the sale was consummated, PO1 Amerol executed their pre-arranged signal by lighting his cigarette.18 P/Sr. Insp. Mata and SPO1 Sorreda immediately responded and arrested both appellants. The buy-bust money was recovered from appellant Lim. PO1 Amerol then placed the markings "12/3/99" and "SMS," which stood for Salam Mangontawar Saud, on both sides of the surface of a tape-sealed transparent plastic bag containing shabu. Afterwards, both appellants were brought to the office of the PNP Narcotics Group, Camp Crame, Quezon City, where they were booked, and where the joint affidavit of their arrest and the arrest reports were prepared.19 Requests for the examination of the specimen20 and for the physical and medical examination of the appellants21 both dated 3 December 1999 were likewise made. The specimen was submitted to the PNP Crime Laboratory for examination. Forensic Chemist Forro of the PNP Crime Laboratory examined the specimen, which is a white crystalline substance placed in a tape-sealed transparent bag, by first weighing it. She stated that the substance weighed 975.4 grams. She then proceeded with the chemical examination of the said specimen, and the same yielded a positive result for methamphetamine hydrochloride. Her examination was reduced into writing,22 as evidenced by Physical Sciences Report No. D5933-9923 dated 4 December 1999. The physical and medical examination of appellants, on the other hand, yielded negative results, meaning, there was no showing that they were physically harmed.24 For its part, the defense presented the testimonies of the following witnesses: appellant Lim, a Chinese national; appellant Flores; Bienvenido Olan (Olan); and SPO1 Sorreda, as adverse witness. Appellant Lim testified that he is engaged in buy-and-sell business in Baclaran and Divisoria. On 3 December 1999, he was in Baclaran to collect money from some of his customers therein. Between 10:00 a.m. and 10:30 a.m., he met Bienvenido Olan,25 a dealer of pants and garments,26 whom he called Ben Olan. Olan then invited him to visit the formers kumpare, who lived in Quezon City near SM North Edsa, as the latter would be returning to Olan some goods that appellant Lim might be interested in selling to his customers. Then, appellant Lim and Olan went to the house of the latters kumpare, who turned out to be appellant Flores, on board a taxi. They arrived therein at around 11:30 a.m. or 12:00 noon.27 Thereafter, appellants Lim and Flores and Olan proceeded to the house of Olans customer in Paraaque on board appellant Flores Daihatsu car, because the goods that would be shown to appellant Lim were actually in Paraaque. They arrived at the house of Olans customer in Paraaque between 2:00 p.m. and 2:30 p.m. Suddenly, while they were inside the house, some men barged in and immediately handcuffed and boarded them to a car,

where appellant Lim was blindfolded and beaten up on the way to the PNP Narcotics Groups office in Quezon City. He was also asked to identify something, which he failed to do because he could not see it, as he has a blindfold. When they arrived at the PNP Narcotics Group Office in Quezon City, the handcuffs were removed, but his hands were tied to the chair he was sitting on. The police authorities who arrested him never gave him any chance to talk because, whenever he would try to do so, they would hit him on his mouth. Then, his blindfold was removed and his hand was placed on something while his picture was taken. He was also made to undergo some fingerprinting.28 Appellant Lim further testified that he wanted to call up his family or relatives, but he was not able to do so, as he was confined in a cell the whole night. The next day or on 4 December 1999, he was brought to the Department of Justice (DOJ); and when he was brought back to the PNP Narcotics Group Office in Quezon City, he was charged with possession of one kilogram of shabu.29 Appellant Flores, on the other hand, testified that on the morning of 3 December 1999, while he was at home in Pag-asa, Quezon City, Olan, his kumpare, called him up and insisted on borrowing his car. He then asked Olan to come to his house to talk about the matter. While appellant Flores was having lunch with his family, Olan, together with his companion, arrived at his house. Olan reiterated to appellant Flores the formers intention of borrowing the latters car. Since his car was not available, appellant Flores borrowed the car of his daughter. As he would not be doing anything else that day, he went with Olan and the latters companion to Mon-el Subdivision in Paraaque to meet a certain Boyet Samoy (Samoy), Olans other kumpare, whose house was near McDonalds, Sucat, Paraaque City. When they arrived at the house of Samoy between 2:00 p.m. and 2:30 p.m., the latter was not there. It was only an old man who entertained them and even asked them to go inside the house. Suddenly, around 10 armed men barged in while shouting, "Nasaan, nasaan?" Then, he and appellant Lim were handcuffed, and they were dragged into a vehicle. While inside the vehicle, they were blindfolded until they reached Camp Crame, where they were interrogated.30 Appellant Flores later found out that Olan was not apprehended.31 Appellant Flores stated that during the interrogation, he was tortured with a plastic bag put on his head to make him admit to the crime. Also, he was never informed of his rights. After the interrogation, he and appellant Lim were transferred to the room of a certain Major Suan. Major Suan then took out from his drawer a plastic bag containing crystalline, substance which was handed to both appellants while their pictures were taken. Thereafter, they were brought back to their detention cell, where appellant Flores was asked to sign an arrest booking sheet even in the absence of a lawyer.32 The defenses next witness was Olan, who stated that on 3 December 1999, he was in Baclaran to look for some ready-to-wear (RTW) merchandise when he met appellant Lim. He then invited appellant Lim to go with him to the house of his kumpare, appellant Flores, in Quezon City, to which appellant Lim agreed. When they arrived at the house of appellant Flores, they ate lunch and thereafter, Olan, appellants Lim and Flores proceeded to Paraaque City on board the car of appellant Flores daughter. Their reason for going to Paraaque City was for appellant Lim to see the pants that he might want to buy. Upon reaching Paraaque City, they went to Samoys house but it was a certain Mang Jr. whom they saw there. Mang Jr. told them to just go to his house in Mon-el Subdivision, Paraaque City, because the pair of pants they wanted to see was already at his house. They arrived at Mon-el Subdivision, which was near McDonalds, Sucat, Paraaque City, at around 1:30 p.m. to 2:00 p.m., and proceeded to Mang Jr.s house to get the pants. While inside the house of Mang Jr., the police authorities arrived. They were then arrested, and boarded in separate cars, and brought to Camp Crame where Olan was asked to keep silent. Appellants Lim and Flores were separated from him. At night, Major Suan arrived and ordered his release.33

The defense also presented SPO1 Sorreda as an adverse witness, who stated before the court a quo that the initials "SMS" appearing on the plastic bag containing shabu is also his initials. However, he stated that PO1 Amerol used the same initials "SMS," and that it was the latter who made an inscription of these initials on a tape-sealed transparent plastic bag containing shabu, which was marked as Exhibit "F."34 After trial, a Decision was rendered by the court a quo on 12 February 2003, finding both appellants guilty beyond reasonable doubt of the crime charged. The dispositive portion reads: WHEREFORE, premises considered, judgment is hereby rendered, finding [appellants], TECSON LIM y CHUA and MAXIMO FLORES y VITERBO, GUILTY beyond reasonable doubt of the offense of violation of Section 15, Article III of R.A. [No.] 6425, as amended by R.A. [No.] 7659 in relation to Number 3,35 Section 20 thereof, and [appellants] TECSON LIM y CHUA and MAXIMO FLORES y VITERBO are hereby sentenced to each suffer the penalty [of] RECLUSION PERPETUA and for both [appellants] to pay a fine of TWO MILLION PESOS (P2,000,000.00) each. The methamphetamine hydrochloride or shabu confiscated from both the [appellants] is hereby ordered confiscated in favor of the government and the Sheriff of this Court is directed to immediately turn over the same to the Dangerous Drugs Board and for the said office to acknowledge receipt thereof. No pronouncement as to costs.36 The records of this case were originally transmitted to this Court on appeal. Pursuant to People v. Mateo,37 the records were transferred to the Court of Appeals for appropriate action and disposition. In their brief, the appellants lone assignment of error was: the court a quo gravely erred in finding the [appellants] guilty beyond reasonable doubt of the crime charged.38 On 18 November 2008, the Court of Appeals rendered a Decision affirming in toto the 12 February 2003 Decision of the trial court. Appellants appealed to this Court, contending that the trial court erred in relying heavily on the testimonies of PO1 Amerol and P/Sr. Insp. Mata. Appellants claimed that PO1 Amerol was silent on the instructions given during the briefing as to what the rest of the buy-bust team would do upon arrival at the target area, while he was transacting with appellants. They insisted that if there was really a briefing, the buy-bust team should have discussed and identified the areas where they would conceal themselves to boost the confidence of PO1 Amerol as the poseur-buyer. In the absence of such briefing, it cannot be presumed that the other members of the buy-bust team concealed themselves. Moreover, P/Sr. Insp. Mata, the officer-in-charge in the buy-bust operation, failed to perform his regular duty to conduct a test-buy before the buy-bust operation. For failure of P/Sr. Insp. Mata to do this, the trial court should not have given much weight and reference to the said buy-bust operation. The appellants also faulted the trial court for convicting them despite the fact that PO1 Amerol had already prepared the crime laboratory result of the white crystalline substance even prior to its submission for laboratory examination.

Finally, appellants asserted that the trial court erred in considering the testimony of PO1 Amerol despite the inconsistencies therein, particularly his testimony referring to two different places where he put markings on the buy-bust money, to wit: (1) at the scene of the crime; and (2) at their office in Camp Crame, Quezon City. The said inconsistencies, if ignored, would cause injustice to appellants. Appellants contentions are bereft of merit. Primarily, a buy-bust operation is a form of entrapment whereby ways and means are resorted to for the purpose of trapping and capturing lawbreakers in the execution of their criminal plan. Unless there is clear and convincing evidence that the members of the buybust team were inspired by any improper motive or were not properly performing their duty, their testimonies on the operation deserve full faith and credit. When the police officers involved in the buy-bust operation have no motive to falsely testify against the accused, the courts shall uphold the presumption that they have performed their duties regularly.39 The courts, nonetheless, are advised to take caution in applying the presumption of regularity. It should not by itself prevail over the presumption of innocence and the constitutionally protected rights of the individual.40 Thus, this Court discussed in People v. Doria41 the "objective" test in buy-bust operations to determine the credibility of the testimonies of the police officers involved in the operation: We therefore stress that the "objective" test in buy-bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be caught but not at all cost. At the same time, however, examining the conduct of the police should not disable courts into ignoring the accuseds predisposition to commit the crime. If there is overwhelming evidence of habitual delinquency, recidivism or plain criminal proclivity, then this must also be considered. Courts should look at all factors to determine the predisposition of an accused to commit an offense in so far as they are relevant to determine the validity of the defense of inducement. In this case, the trial court correctly upheld the testimonies of the prosecution witnesses, i.e., PO1 Amerol and P/Sr. Insp. Mata, the police officers who conducted the buy-bust operation. It did not err in applying the presumption of regularity in the performance of duty by law enforcement agents. As observed by both lower courts, the testimonies of PO1 Amerol, the poseur-buyer in the buy-bust operation, and P/Sr. Insp. Mata, the team leader thereof, were straightforward, categorical, consistent, unwavering, clear and credible. They also positively identified appellants as the offenders. The records even revealed that the testimony of PO1 Amerol, as corroborated by the testimony of P/Sr. Insp. Mata, had satisfactorily proven the elements for the prosecution of the illegal sale of regulated or prohibited drugs, to wit: (1) the identity of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor.42 Here we quote the testimony of PO1 Amerol: Q: At about what time did you arrive at the Mc[D]onalds parking lot? A: About 3:30 oclock in the afternoon, sir.

Q: At about 3:30 oclock in the afternoon, what did you do there upon arrival, Mr. Witness? A: We waited there and the subject arrived at 4:30 oclock in the afternoon, sir. Q: And when you say the subject, Mr. Witness, who is that subject? A: Tecson Lim, sir. Q: Was he alone when he arrived? A: Two (2) of them, Maximo Flores, sir. xxxx Q: Now, Mr. Witness, when you said these two (2) [appellants] arrived at that place about 4:30 oclock, what transpired next? A: When they arrived our reliable informant saw them and then Tecson Lim went out of the vehicle and they talk to each other, sir. Q: After these reliable informant and Tecson Lim talked to each other, what happened next? A: They approached me and then our reliable informant introduced Tecson Lim to me, sir. xxxx Q: Mr. Witness, you said that you were introduced to Tecson Lim by your informant, Mr. Witness, did any conversation take place at that time? A: Our reliable informant introduced me to Tecson Lim that, this is Mike Amerol, a [M]usli[m] and wanted to buy shabu, sir. Q: After that, Mr. Witness, you were introduced as one who was interested to buy shabu, what other conversation took place at that time? A: Tecson Lim asked me if I brought money, sir. Q: What was your reply, Mr. Witness? A: I said "yes" and I showed to him the buy-bust money, sir. xxxx Q: Now, Mr. Witness, we go back to that particular location now at the Mc[D]onalds parking lot wherein the two (2) [appellants] together with your confidential informant approach you and then you have some conversations and you were introduced to each other and then you showed to Tecson Lim this Manila brown envelope containing the seven (7) bundles of paper cut out including these two (2) genuine P1,000.00 bills. So after you have shown this (sic) bundles now, to Mr. Tecson Lim, what transpired next? Atty: Bringas: Objection, your honor, no basis yet.

Court: Overruled. A: He excused himself and go back to his car, sir. Q: When you say Tecson Lim excused himself and went back to his car, Mr. Witness, how about your confidential informant, what did he do also? A: He was standing in front of the vehicle, sir. Q: When Tecson Lim went back to their car, Mr. Witness, did he go inside or he just remain (sic) outside of the car? A: After a while both of them alighted, sir. Q: When you say alighted, his other companion then was Maximo Flores? A: Yes, sir. xxxx Q: So, when they alighted, Mr. Witness, both of the [appellants] alighted from their Daihatsu Car, where did they proceed? A: They came to me and Maximo Flores was carrying a black bag, sir. Q: And how about Tecson Lim, Mr. Witness, where was he at that time when Maximo Flores came near you? A: Both of them approach me, sir. xxxx Q: When they approach you, what transpired then? A: Maximo Flores open (sic) that bag and showed to me its contents, sir. xxxx Q: When he opened the black bag, Mr. Witness, what did you see inside that black bag? A: I saw one tape sealed on a transparent plastic bag containing the methamphetamine hydrochloride, sir. Q: By the way, Mr. Witness, during the briefing or during the negotiation of this drug deal what was the weight agreed upon in the negotiations of this drug deal that is going to take place? A: One (1) kilo, sir. Q: How much was the price of that one (1) kilo that was agreed upon?

A: P700,000.00, sir. Q: Mr. Witness, after Mr. Maximo Flores [open] that black bag and showed to you the contents, what transpired next? A: Tecson Lim asked the money in payment of the item, sir. Q: How about that black bag, Mr. Witness, where was it, who was holding that black bag? A: Maximo Flores, sir. Q: Mr. Witness, after Maximo Flores held on to that bag, what did he do with that black bag containing the item, Mr. Witness? A: He just showed it to me, sir, and we exchange, I got the black bag and he got the money, sir. Q: And after that exchange took place, what did you do next? A: I execute my pre-arrange signal, sir. Q: What was your pre-arrange signal, Mr. Witness? A: To light my cigarette, sir.43 From the foregoing, this Court is strongly convinced that the testimony of PO1 Amerol as the poseur-buyer was, indeed, clear and credible. He recounted in full detail how the deal was set by the informant, their meeting with appellants at McDonalds, Sucat, Paraaque City, their agreement to purchase one kilo of shabu for P700,000.00, the actual exchange of the black bag with a tape-sealed transparent plastic bag containing the substance and the boodle money, and the apprehension of appellants. Further, the prosecution presented before the court a quo the shabu subject of the buy-bust operation and the boodle money, which were marked as Exhibit "B" and Exhibits "F" to "F-8." Appellants allege that (1) the buy-bust team should have discussed and identified the areas where they would conceal themselves to boost the confidence of PO1 Amerol as the poseurbuyer because, in absence thereof, it cannot be presumed that the other members of the buy-bust team concealed themselves; and (2) P/Sr. Insp. Mata, the team leader of the buybust operation, failed to perform his regular duty to conduct a test-buy before the buy-bust operation. We do not agree. In People v. Beriarmente44 citing People v. Tranca,45 this Court has held that there is no rigid or textbook method of conducting buy-bust operations. It is of judicial notice that drug pushers sell their wares to any prospective customer, stranger or not, in both public and private places, with no regard for time. They have become increasingly daring and blatantly defiant of the law. Thus, the police must be flexible in their operations to keep up with the drug pushers. Practice buy-bust operations will not only hinder police efforts to apprehend drug pushers, but would even render them inutile, as these would only forewarn the drug pushers.46 Further, the choice of effective ways to apprehend drug dealers is within the ambit of police authority. Police officers have the expertise to determine which specific approaches are

necessary to enforce their entrapment operations.47 Thus, there was no irregularity in the performance of duty on the part of the members of the buy-bust team, even though they did not anymore conduct a test or trial buy-bust operation. Contrary to appellants claim that PO1 Amerol had already prepared the crime laboratory result of the white crystalline substance even prior to the submission of the specimen for laboratory examination, the records revealed otherwise. Records showed that after appellants were apprehended, a request was made for the laboratory examination of the white crystalline substance confiscated by the buy-bust team from appellants. The white crystalline substance was subsequently submitted to the PNP Crime Laboratory for examination by its forensic chemist, Annallee R. Forro. The examination yielded a positive result for methamphetamine hydrochloride. Forensic chemist Forro reduced the result of the examination into writing, as evidenced by Physical Sciences Report No. D-5933-99 dated 4 December 1999. Clearly, the crime laboratory result of the examination of the shabu confiscated from appellants was not prepared prior to the submission of the specimen for laboratory examination, as appellants would want this Court to believe. Appellants assertion that the trial court erred in considering the testimony of PO1 Amerol despite the inconsistencies therein, which, if ignored, would cause injustice to the appellants, is likewise specious. This Court has repeatedly held that a few discrepancies and inconsistencies in the testimonies of witnesses referring to minor details and not actually touching upon the central fact of the crime do not impair their credibility. Instead of weakening their testimonies, such inconsistencies tend to strengthen their credibility, because they discount the possibility of such testimonies being rehearsed.48 Moreover, PO1 Amerol satisfactorily explained the inconsistencies in his testimony. He stated that he was not able to understand the question, as he thought that it referred to the markings on the shabu. He then clarified that the markings on the buy-bust money were made at their office in Camp Crame, Quezon City. What was marked at the scene of the crime was the shabu and not the buy-bust money. The defense of both appellants consists mainly of mere denials. Denial, like alibi, is a weak defense, which becomes even weaker in the face of the positive identification of the accused by prosecution witnesses. Appellants denial constituted self-serving negative evidence, which can hardly be considered as overcoming a straightforward and credit-worthy eyewitness account. As between the categorical, convincing and credible testimonies of the prosecution witnesses, as well as their positive identification of appellants as the offenders in the crime charged, and the defense of denial profferred by the latter, the formers testimonies are generally held to prevail, especially given the facts obtaining in this case.49 Finally, this Court affirms the findings of both lower courts that there was conspiracy between appellants Lim and Flores to commit the crime charged, and that the same was apparent from their actuations in selling the prohibited drug to PO1 Amerol. Direct proof is not essential to prove conspiracy; it may be established by acts of the accused before, during and after the commission of the crime charged, from which may be logically inferred the existence of a common purpose to commit the same.50 As the Court of Appeals stated in its Decision, both appellants arrived together at the place of the buy-bust operation on board a Daihatsu car. Appellant Lim alighted from the car and spoke to the informant and to PO1 Amerol, the poseur-buyer. After the negotiation, appellant Lim went back to the car and returned with appellant Flores, who was then carrying a black bag containing a tape-sealed transparent plastic bag with shabu. Appellant

Flores gave the black bag with a tape-sealed transparent plastic bag containing shabu to PO1 Amerol, and the latter handed to appellant Lim the boodle money in payment thereof. The actuations of both appellants clearly revealed that there was conspiracy between them to commit the illegal transaction of selling shabu, a regulated or prohibited drug. With the foregoing, it is beyond any cavil of doubt that the appellants were, indeed, guilty of violation of Section 15, Article III of Republic Act No. 6425, as amended. As to the penalties. Section 15, Article III, in relation to Section 20(3) of Republic Act No. 6425, as amended, provides: Sec. 15. Sale, Administration, Dispensation, Delivery, Transportation and Distribution of Regulated Drugs. - The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, dispense, deliver, transport or distribute any regulated drug. Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instruments of the Crime. - The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the following quantities: 1. 40 grams or more of opium; 2. 40 grams or more of morphine; 3. 200 grams or more of shabu or methylamphetamine hydrochloride; 4. 40 grams or more of heroin; 5. 750 grams or more of Indian hemp or marijuana; 6. 50 grams or more of marijuana resin or marijuana resin oil; 7. 40 grams or more of cocaine or cocaine hydrocholoride; or 8. In the case of other dangerous drugs, the quantity of which is far beyond therapeutic requirements, as determined and promulgated by the Dangerous Drugs Board, after public consultations/hearings conducted for the purpose. (Emphases supplied.)1avvphi1 On the basis of the aforesaid provisions of law, the penalty imposed by the lower courts upon appellants, which is reclusion perpetua, is proper, considering that the shabu confiscated in this case as a result of the buy-bust operation weighs more than 200 grams, i.e., 975.4 grams. In the same vein, the fine of P2,000,000.00 imposed by the lower courts on each appellant is also in order as the same is still within the range of fines imposable on any person who sells prohibited drugs without any authority as clearly provided in Section 15, Article III of Republic Act No. 6425, as amended. WHEREFORE, premises considered, the Decision dated 18 November 2008 of the Court of Appeals in CA-G.R. CR HC No. 01871, is hereby AFFIRMED in toto. No costs.

SO ORDERED. PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, Present: G.R. No. 183088

YNARES-SANTIAGO, J., Chairperson, - versus CHICO-NAZARIO, VELASCO, JR., NACHURA, and PERALTA, JJ.

DONATO CAPCO y SABADLAB, Accused-Appellant.

Promulgated:

September 17, 2009 x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

Assailed before the Court is the Decision dated December 28, 2007 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02213 affirming the February 1, 2006 Decision in Criminal Case Nos. 03-3233 and 03-3561 of the Regional Trial Court (RTC), Branch 64 in Makati City. The RTC found accused-appellant Donato Capco liable for violation of certain provisions of Republic Act No. (RA) 9165 or The Comprehensive Dangerous Drugs Act of 2002.

The Facts

The records show that, in two separate informations filed before the RTC of Makati City, Capco was charged with violation of Section 5, Art. II of RA 9165 (illegal sale of dangerous drugs) and Sec. 15, Art. II of the same law (use of dangerous drugs), respectively, allegedly committed as follows:

Criminal Case No. 03-3233

That on or about the 21st day of August 2003, in the city of Makati, Philippines and a place within the jurisdiction of this Honorable Court, the above-named accused, did then and there, willfully, unlawfully and feloniously without being authorized by law, sell, distribute and transport zero point zero three (0.03) gram of Methylamphetamine Hydrochloride (shabu) which is a dangerous drug in consideration of one hundred (P100.00) pesos.

CONTRARY TO LAW.119[1]

Criminal Case No. 03-3561

That on or about the 21st day of August 2003, in the City of Makati Philippines and a place within the jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized to use, administer and take any dangerous drugs, after confirmatory test was found to be positive for the use of Methylamphetamine which is [a] dangerous drug.

CONTRARY TO LAW.120[2]

When arraigned on September 10, 2003 for violation of Sec. 5, 121[3] Art. II of RA 9165, Capco, assisted by counsel, entered a not guilty plea. He pleaded guilty, however, when later arraigned for the other charge of violation of Sec. 15122[4] of RA 9165 and was, accordingly, sentenced to undergo a six-month rehabilitation, the execution of which, however, was deferred due to the pendency of Criminal Case No. 03-3233.

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In the ensuing trial, the prosecution presented as witnesses PO2 Vicente Barrameda and PO1 Randy Santos. The defense lined up Capco and Ace Bernal as witnesses.

The CAs decision under review summarizes the Peoples version of the events, as follows:

At about 8:30 in the evening of August 21, 2003, operatives from the Makati City Anti-Illegal Drugs Special Operation Task Force (AID-SOTF), acting on a confidential informants tip, conducted a buy-bust operation in the vicinity of Dapitan St., Brgy. Guadalupe Nuevo, Makati City. The operation had for its subject, Capco. Acting as poseurbuyer, PO2 Barrameda, accompanied by the informant, was able to purchase one plastic sachet containing white crystalline substance with the use of PhP 100 in marked money. After the completion of the sale, PO2 Barrameda gave the operations pre-arranged signal by ringing back-up PO1 Santos mobile phone. The rest of the team then helped in arresting Capco who was then brought to the Makati AID-SOTF station. From there, appellant and the item subject matter of the sale were then brought to the Philippine National Police (PNP) Crime Laboratory in Camp Crame, Quezon City, for drug test and qualitative examination, respectively. As the chemistry report would later indicate, the urine taken from Capco and the specimen submitted were both found positive for the presence of methylamphetamine hydrochloride or shabu.123[5]

On the other hand, the defense is grounded mainly on denial. To show his innocence, Capco claimed that when he alighted from a tricycle in front of his house coming from Guadalupe Market on August 23, 2003, he observed a commotion and saw four men chasing some people in the basketball court on Dapitan Street, Makati City. Suddenly he was dragged by unidentified persons inside a vehicle parked at Kalayaan Avenue and asked about a certain Gary whom he does not know. When they could not obtain any information from Capco, they brought him to the Office of the Drug Enforcement Unit (DEU). There the DEU Chief asked PhP 10,000 for his release.

Capcos story was collaborated by witness Bernal.124[6] While Bernal was playing basketball with his cousins on Dapitan Street, Makati City, several men disembarked from a taxi and inquired on the whereabouts of Gary. Then they suddenly chased somebody who was able to escape in an alley. After that, they saw two men went inside the house of Capco, who was later brought out and taken to a parked vehicle at Kalayaan Ave., Makati City.

In its decision of February 1, 2006, the RTC found Capco guilty beyond reasonable of the crime (illegal sale of shabu) charged in Criminal Case No. 03-3233. The fallo of the RTCs decision, which also included a portion to implement its ruling in Criminal Case 03-3561, reads:
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WHEREFORE, in view of the foregoing, judgment is rendered against the accused DONATO CAPCO y SABADLAD finding him GUILTY beyond reasonable doubt of violation of Sec. 5, Art. II, Republic Act No. 9165 and sentencing him to suffer life imprisonment and to pay a fine of P500,000.00.

As regards the implementation of the judgment which this Court renders in Criminal Case No. 03-3561 for violation of Sec. 15, Art. II, RA 9165 and considering the aforestated sentence for violation of Sec. 5, Art. II, the accused is sentenced to undergo rehabilitation for at least six (6) months in a drug rehabilitation program under the auspices of the Bureau of Correction.

The Branch Clerk of Court is directed to transmit to the Philippine Drug Enforcement Agency (PDEA) the one (1) piece of plastic sachet of shabu weighing 0.03 gram subject matter of these cases, for said agencys appropriate disposition.

SO ORDERED.125[7]

On appeal, Capco questioned the RTCs decision on the ground that it convicted him in spite of the inadmissibility of the evidence against him and notwithstanding the prosecutions failure to present the alleged confidential informant. He, too, raised, as issues, the prosecutions failure to establish the prohibited nature, and the chain of custody, of the seized item.

Unconvinced, the CA, by decision dated December 28, 2007, affirmed that of the trial court, noting, among other things, that the informant was not an indispensable witness. Apropos the custodial chain, the CA held that the non-presentation of the police investigator and the PNP Crime Laboratory personnel who received the shabu did not affect the Peoples case, as the prosecution witnesses presented sufficiently proved that the chain of custody of the seized shabu was never broken.

The decretal portion of the CAs decision reads:

WHEREFORE, in view of the foregoing, the appealed Decision dated February 1, 2006 of the Regional Trial Court of Makati, Branch 64 in Crim. Cases Nos. 03-3233 and 03-3561 is hereby AFFIRMED.
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SO ORDERED.126[8]

Capco subsequently filed, and the CA gave due course to, his notice of appeal from the decision of December 28, 2007.

On August 6, 2008, this Court required the parties to submit supplemental briefs if they so desired. They manifested, however, their amenability to submit the case on the basis of the records already on file.

As it was in the CA, Capco now asks the Court to overturn his conviction on the following issues which may be formulated, as follows:

1. The CA erred in affirming the appellants conviction despite failure of the prosecution to present the alleged informant;

2. The evidence against appellant is inadmissible for having been obtained in violation of Sec. 21 of RA No. 9165; and

3. The prosecution failed to establish: (1) the item allegedly confiscated was indeed a prohibited drug and (2) the chain of custody of the specimen.

The Courts Ruling

We affirm the ruling of the CA.

Non-Presentation of Informant

Capco argues that the prosecution should have presented the informant or at least explained to the courts satisfaction why he was not made to testify. The informants nonpresentation, so he claims, is equivalent to suppression of evidence.

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There is a logical and critical rationale behind the accepted practice of leaving out a confidential informant from the prosecutions roster of witnesses. As held in People v. Peaflorida, Jr.,127[9] the presentation of an informant is not essential for conviction nor is it indispensable for a successful prosecution because his testimony would merely be corroborative and cumulative. More importantly, as Peaflorida, Jr. and other similar drug cases teach, informants are by and large not presented as witnesses in court as there is a need to conceal their identity and protect their important service to law enforcement. Living in the fringes of the underworld, these police assets may well be unwilling to expose themselves to possible liquidation by drug syndicates and their allies should their identities be revealed. Violation of Sec. 21 of RA 9165

Capco next alleges that the buy-bust team violated Sec. 21(1) of RA 9165, quoted below, on the matter of handling the contraband after a buy-bust operation:

Sec. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have custody of all dangerous drugs, x x x as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.

Capco asserts that, in breach of what the aforequoted provision mandates, the apprehending police operatives did not, upon his arrest, take his photograph together with the alleged shabu sold. There was likewise no physical inventory of the seized item conducted in his presence or before his representative or counsel, and before representatives from the media and the Department of Justice as well as an elected public official.

Generally, non-compliance with Sec. 21 will not render an accuseds arrest illegal or the items seized or confiscated from the accused inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as they would be utilized in the determination of the guilt or innocence of the accused. 128[10]
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As we shall later discuss, the integrity and evidentiary value of the seized drugs were preserved. We, thus, cannot sustain Capcos claim of inadmissibility of the drug. Hiatus in Chain of Custody

Capcos last argument dwells on the prosecutions non-presentation of the personnel who touched or had physical possession of the suspected illegal item from the time it was seized up to the moment it was presented in court, or at least until it was examined by the forensic chemist. He claims that this non-presentation casts doubt on the accuracy of the chain of custody of the object evidence.

We agree with the appellate courts conclusion that the prosecution was able to show that the chain of custody was never broken. A careful review of the records supports this finding.

Following the successful drug transaction with Capco, PO2 Barrameda marked the plastic sachet of suspected shabu with DSC.129[11] A letter-request, signed by Police Superintendent Jose Ramon Q. Salido, was then sent to the PNP Crime Laboratory for an examination of the seized drugs. 130[12] Forensic Chemist Grace M. Eustaquio later filed Chemistry Report No. D-1049-03,131[13] finding the white crystalline substance in the plastic sachet marked DSC positive for methylamphetamine hydrochloride or shabu. During trial, PO2 Barrameda132[14] identified the same specimen as the shabu their team had seized from Capco and he had later marked with DSC. PO1 Santos corroborated PO2 Barramedas testimony by testifying that the specimen marked DSC was indeed the product of their buy-bust operation against Capco.133[15]

In the prosecution for illegal sale of dangerous drugs, what is material is proof that the transaction or sale actually took place, coupled with the presentation in court of the traded substancethe object evidence which is the core of the corpus delicti.134[16] These requirements have been sufficiently established in the instant case. What is more, the integrity of the evidence is presumed to be preserved unless there is a showing of bad faith, ill will, or proof that the evidence has been tampered with. Capco has the burden to show that the evidence was tampered or meddled with to overcome a presumption of regularity in the handling of exhibits by public officers.135[17] Capco failed in this respect.
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Another presumption Capco failed to overcome relates to the prosecutions witnesses. Decisive in a prosecution for drug pushing or possession is the testimony of the police officers on what transpired before, during, and after the accused was caught and how the evidence was preserved. Their testimonies in open court are considered in line with the presumption that law enforcement officers have performed their duties in a regular manner, absent evidence to the contrary. In the absence of proof of motive to falsely impute a crime as serious as drug pushing against Capco, the presumption of regularity in the performance of official duty, as well as the findings of the trial court on the credibility of witnesses, shall prevail over Capcos self-serving and uncorroborated denial.136[18] This presumption holds true for the police officers in this case, as Capco could not provide a credible and believable account on why he was being falsely accused.

In sum, proof beyond reasonable doubt, as found by the RTC and affirmed by the CA, was established against Capco. Finding no showing that certain facts of relevance and substance bearing on the elements of the crime have been overlooked, misapprehended, or misapplied,137[19] we affirm these courts judgments.

Penalty Imposed

Capco was charged with violating Sec. 5, Art. II of RA 9165. For clarity we quote said provision again, which states:

Sec. 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals.The penalty of life imprisonment to death and a fine ranging from x x x (P500,000.00) to x x x (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute dispatch in transit or transport any dangerous drug, x x x or shall act as a broker in any of such transactions. x x x

We find the penalty of life imprisonment and a fine of PhP 500,000 in accordance with the penal provisions of RA 9165.
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WHEREFORE, the appeal is DENIED. The CA Decision in CA-G.R. CR-H.C. No. 02213 is hereby AFFIRMED.

SO ORDERED. THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, G.R. No. 171088 Present:

YNARES-SANTIAGO,

**

CARPIO-MORALES, Acting Chairperson, BRION, DEL CASTILLO, and ABAD, JJ.

versus

LEONARD L. BERNARDINO alias ONAT, Accused-Appellant. Promulgated:

October 2, 2009 x-------------------------------------------------------------------------------------------------------- x DECISION

BRION, J.:

This is an appeal from the decision of the Court of Appeals (CA)138[1] finding Leonard L. Bernardino (accused-appellant) guilty beyond reasonable doubt of the illegal sale and illegal possession of shabu, penalized under Sections 15 and 16, Article III of Republic Act No. 6425 (R.A. No. 6425), as amended139[2] (The Dangerous Drugs Act of 1972). The CA decision fully affirmed the judgments of conviction on the two charges rendered by the Regional Trial Court (RTC), Branch 56, Angeles City. 140[3]

In Criminal Case No. 96-530, the accused-appellant was accused of illegal possession of shabu under Section 16, Article III of R.A. No. 6425 under an Information that states:

That on or about the 29th day of September, 1996, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession and under his control SHABU (Methamphetamine Hydrochloride) weighing approximately 215 grams, which (sic) is a regulated drug, without any authority whatsoever.

ALL CONTRARY TO THE LAW.141[4]

In Criminal Case No. 96-533, the accused-appellant, together with one Nestor C. Nemis, was charged with the illegal sale of shabu, penalized under Section 15, Article III of R.A. No. 6425, as follows:

That on or about the 29th day of September, 1996, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually aiding and abetting one another, did then and there willfully, unlawfully and feloniously sell and/or deliver one transparent plastic sachet of SHABU (methamphetamine Hydrochloride weighing approximately 5 grams to poseurbuyer without any authority whatsoever.

ALL CONTRARY TO THE LAW.

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The accused-appellant alone stood trial as his co-accused Nestor C. Nemis, after entering a plea of not guilty, jumped bail. The accused-appellant pleaded not guilty to both charges.142[5] The two criminal cases were subsequently consolidated and jointly tried.

THE ANTECEDENTS

At the trial, the prosecution and the defense presented conflicting versions of the antecedent events. The prosecutions evidence, documentary143[6] and testimonial,144[7] showed that the accused-appellant was arrested in a buy-bust operation by the police. The defenses evidence, through documentary evidence145[8] and the testimonies of the accusedappellant and Salvador Bernardino (Salvador), showed that the accused-appellant was the victim of a police frame-up.

The Prosecutions Version

SPO2 Daniel C. Cadiz146[9] (SPO2 Cadiz), one of the prosecution witnesses, is an investigator and intelligence operative of the Regional Operations Group based at Camp Olivas, San Fernando, Pampanga (Camp Olivas). He testified that while he was at his office at around 3:00 p.m. of September 29, 1996, he received information from a female asset about a drug deal involving P3,000.00 worth of shabu (equivalent to five [5] grams)147[10] that the asset arranged with a certain Onat.

SPO2 Cadiz immediately relayed the information to Chief Inspector Igmedio Cruz, Jr. who organized a buy-bust team. SPO2 Cadiz testified that the subject of the buy-bust operation would be a man riding a green Isuzu pick-up and that he (SPO2 Cadiz) was designated to act as the poseur buyer. After a briefing, he and the rest of the buy-bust team,148[11] together with two (2) civilian assets, proceeded to Don Bonifacio St., Don Bonifacio Subdivision, Angeles City on board three vehicles. They arrived at the designated place at 5:30 p.m. and strategically positioned their vehicles in front of House No. 43-25 Don Bonifacio St., the place where the sale of shabu was to take place. SPO2 Cadiz was with the
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female asset inside a vehicle they parked by the roadside; SPO2 Cadiz was at the backseat of the vehicle while the civilian asset was at the drivers seat. At about 9:00 p.m., a green Isuzu pick-up showed up and stopped alongside and very near the vehicle of SPO2 Cadiz and the female asset. SPO2 Cadiz hid himself at the vehicles backseat area from where he heard the conversation between the female asset and the man in the pick-up. When SPO2 Cadiz heard the female asset say Sige. Thank you the pre-arranged signal to signify that an exchange of money and drugs had already taken place he got off the vehicle and arrested the driver of the pick-up who was then holding the P3,000.00 marked money. The driver identified himself. At that point, the rest of the buy-bust team converged on the pickup; he saw that the accused-appellant was accompanied in the pick-up by another man later identified as Nestor Nemis. Like the accused-appellant, Nestor Nemis himself was arrested by the other members of the buy-bust team. Both the accused-appellant and Nestor Nemis were subjected to a body search and the vehicle itself was searched.

In addition to the suspected shabu sold at the buy-bust and the P3,000.00 marked money recovered from the accused-appellant, SPO2 Cadiz body search of the accusedappellant yielded the following items: (a) a white plastic bag containing other two plastic bag search containing a suspected methamphetamine hydrochloride known (shabu) weighing approximately 200 grams contained in a white big size plastic bag labeled Uniwide Sales; (b) three plastic bags each containing a quantity of suspected shabu with an approximate weight of fifteen grams; and (c) money in the amount of P2,400.00.

The search of the glove compartment of the pick-up yielded a partly burned aluminum foil with residue, a small quantity of suspected shabu, and three improvised tooters.

The arresting team forthwith took the accused-appellant and Nestor Nemis to Camp Olivas while SPO2 Cadiz personally took the confiscated items to the Philippine National Police Crime Laboratory for examination.

SPO2 Cadiz identified in court the marked money (marked with the initials D.G.) and the confiscated shabu through the markings which he made in red ink (his own intitials DCC) on the Uniwide Sales plastic bag (Exhibit E with submarkings).149[12] Likewise, he identified the tooter and aluminum foil (Exhibit F with submarkings) as the items seized from the accused-appellant, which he marked in black ink with his initials, DCC; 150[13] he marked the plastic bag containing the tooter and aluminum foil with his signature and name.151[14] SPO2 Cadiz also testified that he marked the three (3) small transparent plastic sachets (Exhibits G to G-3) and the plastic bag (Exhibit H) taken from the accused-appellant with his name written in red ink and initials in black ink.152[15] He testified that he made these markings immediately after the buy-bust operation when he
149

150

151

152

arrived at the Regional Special Operation Office at around 9:30 p.m.153[16] He personally took the confiscated items to the crime laboratory the next day at around 10:00 a.m. SPO2 Cadiz explained that they bring the evidence to the crime laboratory office as soon as possible. The administration office of the crime laboratory received the items he turned over. 154[17] The recipient recorded the turnover, duly affixing her signature and the time of receipt.155[18] SPO2 Cadiz was then told to return that same day to receive the initial examination report.156[19]

SPO4 Daniel M. Guillermo (SPO4 Guillermo)157[20] is a member of the Regional Special Operation Group of Camp Olivas and heads the Pampanga Intelligence Team charged with the task of gathering information against criminal elements. He acted as team leader of the buy-bust operation conducted against the accused-appellant on September 29, 1996. SPO4 Guillermo testified that he was given P3,000.00 as buy-bust money by his superiors; he marked these with x and his initials, and thereafter gave the sum to SPO2 Cadiz, the designated poseur buyer.

He further testified that at around 5:30 p.m. of September 29, 1996, he and the buybust team were on board three (3) vehicles on Don Bonifacio St., Don Bonifacio Subdivision, Angeles City. In the course of their operation, they retrieved shabu weighing around 215 grams and other drug paraphernalia from the accused-appellant. He instructed SPO2 Cadiz to secure all the evidence consisting of the three (3) pieces of marked money, the shabu, the improvised tooter with partly burned aluminum foil with residue, and three (3) plastic bags. After the arrest, they took the accused-appellant and Nestor Nemis to Camp Olivas while the confiscated items were turned over to the forensic chemist for examination.

Daisy Babor158[21] (Babor) is a forensic chemist at the PNP Crime Laboratory, Camp Olivas, San Fernando, Pampanga. On September 30, 1996, she received specimens submitted by SPO2 Cadiz for examination. She testified that she received these specimens from the laboratorys receiving clerk, Sonia Samonte, who immediately endorsed these to her after receipt from SPO2 Cadiz.159[22] The specimens submitted for examination were: (a) one (1) white big size plastic bag labeled Uniwide Sales containing two (2) medium size transparent plastic bag each with white crystalline substance having a total weight of 198.324 grams; (b) a medium size transparent plastic bag containing one (1) small size heat sealed transparent plastic bag with white crystalline substance weighing 1.669 grams; (c) one (1) medium size transparent plastic bag containing three (3) small size heat-sealed transparent plastic packs each with white crystalline substance having a total weight of
153

154

155

156

157

158

159

11.237 grams; and (d) one transparent plastic bag containing suspected drug abused paraphernalia seeds, one (1) small piece of partly burned aluminum foil, and three (3) improvised tooters each with suspected shabu residue.160[23]

Babor further testified that she immediately conducted an examination of the submitted specimens; the tests she conducted yielded positive results for shabu.161[24] The results of her examination are contained in the Initial Report dated September 30, 1996 (Exhibit B) and Chemistry Report D-604-96 dated October 1, 1996 (Exhibit C) which Babor herself prepared. After the tests, she kept the specimens in the laboratorys evidence room that only Babor and her chief had access to. She testified that she took out these specimens from the evidence room when she brought them to court for presentation on June 23, 1997.162[25]

At her direct examination, Babor confirmed the specimens she examined and identified them as the same specimens SPO2 Cadiz turned over for examination.163[26]

The Version of the Defense

The accused-appellant164[27] raised the defenses of denial and frame-up. He claimed that he and Nestor Nemis were used as sacrificial lambs in exchange for the freedom of one Aling Rosie who is reputed to be the queen of shabu in Angeles City, Pampanga.165[28] He related that in the afternoon of September 29, 1996, he and Nestor Nemis were on their way to Angeles City, Pampanga on board an Isuzu pick-up owned by Salvador. The purpose of their trip was to pick up a split-type aircon unit that the accusedappellant bought from Aling Rosie. They arrived at Aling Rosies house at around 7:30 p.m.; Aling Rosie was not there and they were told by the occupant of the house to wait. Aling Rosie arrived about an hour and a half later; she immediately told them that she had to change clothes before they could proceed to do business. While waiting for Aling Rosie, they heard a commotion and about seven persons, who turned out to be police officers, entered the house and asked them to lie face down on the floor. Thereafter, the accusedappellant saw Aling Rosie crying while talking to the police officers. They were arrested right then and there and were taken to Camp Olivas. During the ride, the accused-appellant heard the policeman driving their vehicle say [p]are ayos nahuli rin natin ang Reyna ng Angeles. Upon their arrival at Camp Olivas, the accused-appellant learned that he had been pointed to as the party who brought the shabu. The accused-appellant claimed that he was maltreated and forced to admit to the crime.
160

161

162 163

164

165

Because of his arrest and maltreatment, the accused-appellant filed an administrative complaint before the Ombudsman against the police officers who arrested him. The accused-appellant further claimed that unidentified persons approached him who offered to drop the criminal charges if he would drop his charges before the Ombudsman.

The defense also presented Salvador,166[29] the accused-appellants uncle and owner of the Isuzu pick-up the police confiscated when the accused-appellant was arrested. Salvador testified that the accused-appellant borrowed the pick-up to get an air conditioning unit.

On August 18, 1999, the RTC convicted the accused-appellant of the crimes charged; his co-accused Nestor C. Nemis was acquitted for lack of evidence. The dispositive portion of the decision reads:

WHEREFORE, in view of the foregoing considerations, judgment is hereby rendered as follows:

1. In Crim. Case No. 96-530, the Court finds the accused Leonardo L. Bernardino @ Onat guilty beyond reasonable doubt of the crime of Violation of Section 16, Article III of Republic Act 6425, as amended and said accused is hereby sentenced to suffer the penalty of Life Imprisonment and to pay a fine of P 20,000.00 and to pay the costs.
x x x

2. In Crim. Case No. 96-533, finding the accused Leonard L. Bernardino @ Onat guilty beyond reasonable doubt of the crime of Violation of Section 15, Article III of Republic Act 6425, as amended, said accused is hereby sentenced to suffer the penalty of Two (2)years, Four (4) months and one (1) day of prision correccional, as minimum, to four (4) years and two (2) months of prision correctional, as maximum and to pay one-half (1/2) of the costs.
x x x

For lack of evidence to hold accused Nestor A. Nemis criminally liable for the crime charged, said accused is hereby acquitted with cost de oficio. SO ORDERED.167[30] Pursuant to People v. Mateo,168[31] we transferred the case, initially appealed to us, to the CA. On September 30, 2005, the CA affirmed the accused-appellants conviction. The CA,
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however, modified the penalty in Criminal Case No. 96-530 and sentenced the accusedappellant to suffer the penalty of reclusion perpetua for illegal possession of shabu and to pay a corresponding fine of P1 Million. The CA affirmed the RTCs ruling in Criminal Case No. 96-533.169[32]

THE ISSUE

The sole issue raised in this appeal is one of credibility whether the lower courts committed a reversible error in giving greater weight to the testimonies of the police officers whose acts, according to the accused-appellant, were unfairly presumed to be regular. The accused-appellant also contends that the lower courts erred in disbelieving his version of the events and in disregarding his complaint before the Ombudsman against the police officers for the frame-up they contrived. For our consideration is the question: is the prosecutions evidence sufficient to sustain the accused-appellants conviction for the crimes charged? THE COURTS RULING Although the only issue raised in this appeal relates to the credibility of the prosecution witnesses, we are driven to reexamine and modify the decisions of the RTC and CA after going over the records of this case, the transcript of stenographic notes, and the exhibits before us. We undertake this in-depth review pursuant to our authority, in appeals of criminal cases, to open up the whole case for review. We find, after this review, that both courts failed to consider the crucial fact that the accused-appellant was charged with and was convicted of two (2) crimes that, although commonly relating to dangerous drugs, are nevertheless separate and distinct from one another, particularly in terms of their elements and requisites.

Credibility of the Prosecution Witnesses The records show that in finding the accused-appellant liable for the crimes charged, both the RTC and CA believed the testimonies of SPO2 Cadiz, SPO4 Guillermo and forensic chemist Babor showing that the accused-appellant was arrested in a legitimate entrapment operation where he was caught in the act of selling P3,000.00 worth of shabu (about 5 grams), and where he was also found in the possession of 211.23 grams of shabu and drug paraphernalia.

In believing the prosecutions version of events, the RTC pointed to the lack of evidence showing any ulterior motive or ill-will on the part of these prosecution witnesses
169

that would impel them to falsely testify against the accused-appellant. 170[33] Likewise, the RTC found their testimonies credible, trustworthy and reliable under the presumption that these police officers have regularly performed their official duties. 171[34] On appeal, the CA disregarded the attacks on the prosecution witnesses credibility and ruled that the inconsistencies and discrepancies the accused-appellant pointed out refer to trivial and inconsequential matters that do not pertain to the act constitutive of the offense charge.172 [35] The CA also ruled that drug transaction conducted in the middle of the road is not unusual, and took note that the sale of prohibited drugs to complete strangers, openly and in public places, has become a common occurrence.173[36] Our own independent assessment of the records gives us no reason to disturb the findings on the manner of, and grounds leading to, the accused-appellants arrest. We find the testimonies of SPO2 Cadiz and SPO4 Guillermo to be consistent with one another; they sufficiently and clearly show how the accused-appellant committed the crimes charged. We likewise find no sufficient evidence establishing any improper motive on their part to falsely impute the charges against the accused-appellant. On the contrary, the accusation by the accused-appellant that he and Nemis were used as sacrificial lambs to allow the real drug offender to escape is unsupported by any evidence other than his self-serving testimony. We also doubt the veracity of this claim considering that the prosecution witnesses and the accused-appellant did not know each other prior to the buy-bust operation.174[37] We do not find it likely that a person of sound disposition would willingly falsely testify against a stranger and suffer the inconvenience and the rigors of a criminal trial and the risk of exposing himself to possible criminal prosecution for giving false testimony. Both SPO4 Guillermo and SPO2 Cadiz were fully aware of the serious consequences of the drug charges against the accused-appellant, yet they consistently identified the accused-appellant as the person they arrested for illegal sale and illegal possession of shabu in a buy-bust operation.175[38] They stood firm in their testimonies notwithstanding the administrative complaint filed against them by the accused-appellant before the Ombudsman for maltreatment, illegal detention and frame-up. Incidentally, the records show that the Ombudsman dismissed the administrative complaint against them. 176[39] Aside from the lack of improper motive, the prosecutions version of events is corroborated by the prosecutions documentary and real evidence. First, the marked money that was given to the accused-appellant during the buybust sale was presented during the trial as evidence. This marked money -- consisting of three (3) pieces of P1,000.00 -- bore the mark x with the letters D.G. identified by SPO4 Guillermo as the markings he made in what was used as marked money in the buy-bust operation.177[40] SPO4 Guillermo testified that the letters D.G. stood for his initials.178[41] He testified, too, that this marked money was recovered from the accused-appellant
170

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172 173 174

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immediately after the buy-bust took place.179[42] SPO2 Cadiz testified that after the buy-bust, he recovered the marked money from the accused-appellant who was holding it in his left hand.180[43] Second, SPO2 Cadiz testified that their pre-operation briefing duly informed them that the subject of the buy-bust operation would be a man riding the green Isuzu pick-up.181 [44] Both SPO2 Cadiz and SPO4 Guillermo testified that the accused-appellant arrived at the designated area driving a green Isuzu pick-up and from there sold shabu to their female asset. The accused-appellant duly admitted driving a vehicle of the same make, model and color at the time of his arrest on September 29, 1996 at the designated area of the buy-bust operation.

Lastly, a Confiscation Receipt,182[45] made part of the records, was signed by the accuse-appellant where he acknowledged that the following items were confiscated from him by the police at 9:00 p.m. of September 29, 1996, namely:

(a)

one (1) plastic bag labeled Uniwide Sales containing another two (2) transparent plastic bags with suspected shabu with the approximate weight of 201.04 grams;

(b)

one (1) transparent plastic sachet containing suspected shabu weighing about 5 grams in weight;

(c)
grams;

three (3) transparent plastic sachet with suspected shabu weighing about 15

(d) (e)
(f)

P3,000.00 marked money; P2,400.00; three (3) pieces of improvised tooter; and (g) I[z]usu pick-up.

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181 182

We have consistently held, on the issue of credibility, that we give the highest respect to the trial courts evaluation of the testimonies of witnesses; the trial court is in a better position than this Court to assess the credibility of witnesses since it has direct access to and observes the demeanor of these witnesses and their manner of testifying.183[46] Thus, the appellate courts will generally not disturb the findings of the trial court unless the latter has plainly overlooked facts of substance and value that, if considered, would affect the results of the case.184[47] We find no compelling reason to deviate from this general rule in passing upon the prosecutions version of events. In fact, and as we indicated above, our own reading of the evidence on record shows that it amply supports the RTC and CA factual findings.

The Defenses of Denial and Frame-up

Against the hard pieces of the prosecution evidence pointing to the accusedappellants guilt, the latter could only raise the defenses of denial and frame-up and cite the discrepancies and the incredibility of the testimonies of SPO2 Cadiz and SPO4 Guillermo. He claimed that these infirmities cast doubt on the testimonies evidentiary value and, conversely, strengthen his own version of events.

The defenses of denial and frame-up are weak defenses that are viewed by the Court with disfavor because they can easily be feigned and fabricated. 185[48] In People v. Uy,186[49] the Court explicitly expounded on this view, as follows:

We are not unaware that in some instances law enforcers resort to the practice of planting evidence to extract information or even to harass civilians. However, like alibi, frame-up is a defense that has been invariably viewed by the Court with disfavor as it can easily be concocted [and] hence commonly used as a standard line of defense in most prosecutions arising from violations of the Dangerous Drugs Act. We realize the disastrous consequences on the enforcement of law and order, not to mention the well being of society, if the courts x x x accept in every instance this form of defense which can be so easily fabricated. x x x

The present case is no exception to what we have said above, as the accused183 184 185

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appellant failed to adduce clear and convincing evidence against the positive, consistent and categorical prosecution evidence pointing to his guilt of the crimes charged.

In this respect, the discrepancies the accused-appellant points out, namely: whether both witnesses spoke to the female asset prior to the buy-bust operation; whether the female asset knew the full name of the accused-appellant; and whether the police kept a dossier on the accused-appellant, all refer to events which occurred prior to the buy-bust operation. They are extraneous matters with no direct bearing on the evidence establishing the elements of the crimes charged. The inconsistencies, if any, refer to minor matters that enhance, rather than destroy, the veracity of the witnesses testimonies; they serve to remove any suspicion that these testimonies were contrived or rehearsed. 187[50] More importantly, these discrepancies did not contest the categorical and consistent testimonies of SPO2 Cadiz and SPO4 Guillermo and the other prosecution evidence on the elements of the crimes charged.

Additionally, we reject the accused-appellants argument that the lack of prior surveillance or test-buys affected the integrity of the buy-bust operation. Although test-buys for dangerous drugs provide assurance of the reliability of an informers tip, they are not conditions sine qua non; their absence does not affect the validity of a buy-bust operation and of the credibility of police officers participating on the basis of an informers tip. SPO4 Guillermo and SPO2 Cadiz duly justified both the lack of prior surveillance and of an existing file on the accused-appellant, when they stood by the trustworthiness and reliability of their asset whom they tried and tested in previous operations;188[51] their familiarity with the female asset led the police to dispense with the need for a prior surveillance or for test-buys.

We also reject the accused-appellants argument on the alleged impossibility of the sale of shabu in a busy street between two strangers who used two vehicles that were side by side each other. In the first place, the records show that the transaction happened inside a subdivision and not in a busy street. Even granting that the place of the buy-bust was a busy street (which fact was not established), the sale took place at night (at 9:00 p.m.) and was a five-minute transaction that was too brief to attract the attention of passersby.189[52] The records also show that the position of the vehicles allowed other cars to pass and that the accused-appellant and the female asset were one-arm length away from each other and could easily make the exchange.190[53]

The records further show that the drug transaction was not conducted between two strangers. The accused-appellant did not dispute knowing the female asset and admitted that he had previously gone to the female assets place.

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At any rate, we agree with the CAs observation that there was nothing unusual in drug transactions between strangers. Previous cases relating to dangerous drug violations, in fact, support this observation. A case in point would be our ruling in People v. Chua191[54] where we said:

xxx the law does not prescribe as an element of the crime that the vendor and vendee be familiar with each other. What matters in a drug related case is not the existing familiarity between the seller and the buyer, but their agreement and the acts constituting the same and delivery of the prohibited drugs... x x x

[D]rug pushers do not confine their trade to known customers; complete strangers are accommodated provided they have the money to pay. Moreover, why a dealer would trust a buyer, which is to say the motive behind a drug deal, is not an essential element of drug-related offense.

A Partial Modification of the Conclusion in the RTC and CA decisions is justified under the circumstances

We mentioned earlier that certain conclusions in convicting the accused-appellant were not supported by the lower courts factual findings. We refer specifically to the lower courts failure to consider that the accused-appellant was charged with and convicted of two district crimes that the prosecution had to prove separately in terms of their respective elements.

Criminal Case No. 96-533 for selling shabu

In a successful prosecution for illegal sale of shabu, the concurrence of the following elements must be present: (a) the identity of the buyer and the seller, the object, and consideration; and (b) the delivery of the thing sold and the payment therefor.192[55] What is material is proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti or the very drugs the accused sold.193[56]

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Case law teaches that a common issue in drug cases involving buy-busts is the identity of the drugs allegedly sold: are these the very same drugs presented in court? Case law also teaches that this issue is commonly resolved by a scrutiny of the chain of custody of the recovered drugs. In this case, while each and every link in the chain of custody of the shabu recovered from the accused-appellant was established through the testimonial evidence of SPO2 Cadiz and forensic chemist Babor showing the movements of the shabu from the time of seizure, its marking at the police station, and its submission for laboratory examination until its presentation in court, we find that the prosecution failed to specifically identify the shabu that was actually sold at the buy-bust as among the shabu that were presented in court.

As shown by the evidence, the prosecution theorized that the accused-appellant was arrested by virtue of a legitimate entrapment operation where he was caught red-handed selling P3,000.00 worth of shabu or about five

(5) grams of shabu. In proving the sale, SPO2 Cadiz testified:

Q A

This motor vehicle that arrived, what type of motor vehicle is this? When it was nearing to our position, the female asset told me that the subject motor vehicle was approaching and I hid myself at the back and then the motor vehicle halted very near our car and made some sort of conversation or pleasantries.

Q A

Who are these? The man and our asset. When I heard the utterance, the statement mentioned by our asset Sige, [t]hank you, that is the prearranged signal to mean that the marked money of P 3,000.00 previously given to the asset was already handed over to this man who was later identified as Leonardo Bernardino and that the stuff was already in the possession of our asset.

Q A

Upon hearing this signal which you said, what did you do after that? I immediately got off the vehicle with a draw handgun and arrested the driver who was already holding the P 3,000.00 marked money on his left hand.194[57]

He further testified:

Pros. Santos (to the witness)

Mr. Witness, in the last hearing of this case when you were called to testify on direct-examination, you mentioned that you will be able to identify the shabu that you confiscated in the possession of Leonard Bernardino, and also the other stuff which you confiscated from Leonard Bernardino and Nemis at the compartment of the vehicle, is that correct?

Yes, sir.

Q
194

Could you tell us why would you be able to identify those?

I place my marking, sir, my name and initials, sit.

Q A

In all those specimens? Yes, sir.

Showing to you some specimen already identified in the last hearing by SPO[4] Daniel Guillermo as Exhibits E-E-1 to E-2, Exhibits F,F-1, F-2 and F-3, Exhibits G, G-1, G-2 to G-3, could you go over these exhibits and inform the Court if these are the same shabu which you confiscated in the possession of the accused in these cases and point to the marking that you made which you testified a while ago that you put on these? Yes, sir, these are the same items.195[58] xxx

PROS. SANTOS: (to the Witness)

You also identified this plastic bag which you said you confiscated from the accused, could you point to us if it is the same shabu you confiscated, will you point to us the marking? My marking SPO2 Cadiz, sir, with my initials above the name in red ink.

PROS. SANTOS:

May we request, your Honor, that it be marked in evidence as Exhibit H and the markings made by the witness on the same be marked as Exhibit H-1.196[59]

This testimony, however, failed to disclose and identify the shabu sold as distinguished from those found in the accused-appellants possession. SPO2 Cadiz identified on the witness stand Exhibits E, F and G (with their corresponding submarkings) and Exhibit H as the items confiscated from the accused-appellant.197[60] However, in contrast with the prosecutions declarations in the Formal Offer of Evidence,198[61] Exhibit H was not categorically identified by SPO2 Cadiz as the shabu bought and sold at the buy-bust.
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Unlike the shabu in Exhibits E and G that SPO2 Cadiz clearly identified as the shabu taken from the accused-appellants possession, SPO2 Cadiz testimony with respect to the shabu marked as Exhibit H merely identified it as the plastic bag that was confiscated from the accused.199[62] This testimony should be read in relation with his earlier testimony that he only saw the accused-appellant holding the P3,000.00 marked money at the time of his arrest, not the shabu that was sold. Also, SPO2 Cadiz previously testified that he only arrested the accusedappellant after the pre-arranged signal was given by the confidential informant; he only heard and did not actually see the sale. He failed to state that he seized the actual shabu sold and to identify the person from whom the shabu sold was recovered. We cannot overlook this evidentiary gap as it involves the identification of the shabu allegedly sold, as distinguished from the shabu found in the accused-appellants possession.

The lack of segregation between these pieces of evidence for the two different crimes charged is also very evident from an examination of the markings in the plastic sachets of shabu seized from the accused-appellant and the identification of the examined specimens in the Initial Laboratory Report and Chemistry Report No. D-604-96. Nowhere is the shabu sold specifically singled out as the specimen for the crime of illegal sale of shabu. Thus, while forensic chemist Babor duly identified and gave the results of the examinations she made, her testimony merely referred to the specimens submitted by SPO2 Cadiz 200[63] and could not have separately referred to the shabu illegally possessed and that illegally sold. From this perspective, no clear specific link exists between the examined specimen and the shabu allegedly sold at the buy-bust except by inference an exercise that cannot be done in the absence of specific testimony identifying the shabu sold. This evidentiary situation effectively translates to the absence of proof of corpus delicti, and cannot but lead us to conclude that no valid conviction for the crime of illegal sale of shabu can result.

Criminal Case No. 96-530 for illegal possession of shabu

In a prosecution for illegal possession of shabu, the following elements must be satisfactorily established: (a) the accused is found in possession of a regulated drug; (b) the person is not authorized by law or by duly constituted authorities; and (c) the accused has knowledge that the said drug is a regulated drug. 201[64] We find that all the elements of this crime were duly proven.

The records show that the accused-appellant was found in actual possession of 211.23 grams of shabu after a warrantless search in an arrest in flagrante delicto. As testified to by SPO2 Cadiz, the plastic sachets of shabu were found in the accusedappellants possession in the following manner:

198

199

200 201

When you subjected Onat to body search, what happened then?

Witness

I discovered a white plastic bag containing other two plastic bags each containing a suspected methamphetamine hydrochloride known as shabu weighing approximately 200 grams contained in a white big size plastic bag labelled Uniwide Sales from his camouflage pant[s] left lower portion pocket.

xxx

Q A

When you discovered another shabu on the body of Bernardino, what did you do then? I found another three plastic bags each containing a quantity of suspected shabu with an approximate weight of fifteen grams from his camouflage pant[s] left side pocket x x x

Q A

What about your other companions, what were they doing there? SPO4 Guillermo after searching the person of Nestor Nemis, he opened the glo[v]e compartment and found a partly burned aluminum foil with residue, a small quantity of suspected shabu and three improvised tooter in the front compartment of the Isuzu Pick-up.202[65]

xxx

You also identified this plastic bag which you said you confiscated from the accused, could you point to us if it is the same shabu you confiscated, will you point to us the marking? My marking SPO2 Cadiz, sir, with my initials above the name in red ink.

PROS. SANTOS:
202

May we request, your Honor, that it be marked in evidence as Exhibit H and the markings made by the witness on the same be marked as Exhibit H1.203[66]

Actual possession exists when the drug is in the immediate physical possession or control of the accused. In this case, the drugs were found inside his clothing.204[67] No evidence was ever adduced showing that the accused-appellant had authority to possess these regulated drugs.

Lastly, the surrounding circumstances indicate the accused-appellants knowledge of the drugs in his possession. Knowledge, being an internal act, may be presumed from the failure of the accused to explain why the drug was in a place over which the accused exercised dominion and control.205[68] In this case, such explanation was glaringly lacking. The only explanation offered police frame-up is, as discussed, a discredited one. Hence, knowing possession of the shabu by the accused-appellant is presumed under the circumstances.

In sum, we find no reversible error committed by the RTC and CA in convicting the accused-appellant of illegal possession of drugs. Section 16, Article III of R.A. No. 6425 as amended by Section 16 of R.A. No. 7659, in relation to Section 20 of R.A. No. 7659, imposes the penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos against any person caught in possession of 200 grams of shabu or more.206[69] This penalty finds full application in the present case since the accused-appellant was found in illegal possession of 211.23 grams of shabu. In the absence of any aggravating or mitigating circumstances, the CA correctly imposed the penalty of reclusion perpetua conformably with Article 63 of the Revised Penal Code. The fine of P1 Million Pesos imposed is also in accordance with the law.

WHEREFORE, premises considered, the decision dated September 30, 2005 in CAG.R. CR HC No. 00240 is AFFIRMED with MODIFICATION as follows:

1. In Criminal Case No. 96-530, accused-appellant Leonard L. Bernardino alias Onat

is found GUILTY beyond reasonable doubt of the crime of illegal possession of shabu in violation of Section 16, Article III of R.A. No. 6425, as amended. He is sentenced to suffer the penalty of reclusion perpetua and to pay fine in the amount of One Million Pesos (P1,000,000.00).

203

204 205 206

2. In Criminal Case No. 96-533, the accused-appellant is hereby ACQUITTED for

illegal sale of shabu penalized under Section 15, Article III of R.A. No. 6425 on the ground of reasonable doubt. SO ORDERED. PROSOURCE INTERNATIONAL, INC., Petitioner, G.R. No. 180073 Present:

CORONA, J., Chairperson, - versus CHICO-NAZARIO, VELASCO, JR., NACHURA, and PERALTA, JJ.

HORPHAG RESEARCH MANAGEMENT SA, Respondent.

Promulgated:

November 25, 2009

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

DECISION

NACHURA, J.: This is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to reverse and set aside the Court of Appeals (CA) Decision207[1] dated July 27, 2007 and Resolution208[2] dated October 15, 2007 in CA-G.R. CV No. 87556. The assailed decision affirmed the Regional Trial Court (RTC)209[3] Decision210[4] dated January 16, 2006 and
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208

Order211[5] dated May 3, 2006 in Civil Case No. 68048; while the assailed resolution denied petitioners motion for reconsideration.

The facts are as follows:

Respondent Horphag Research Management SA is a corporation duly organized and existing under the laws of Switzerland and the owner212[6] of trademark PYCNOGENOL, a food supplement sold and distributed by Zuellig Pharma Corporation. Respondent later discovered that petitioner Prosource International, Inc. was also distributing a similar food supplement using the mark PCO-GENOLS since 1996.213[7] This prompted respondent to demand that petitioner cease and desist from using the aforesaid mark.214[8]

Without notifying respondent, petitioner discontinued the use of, and withdrew from the market, the products under the name PCO-GENOLS as of June 19, 2000. It, likewise, changed its mark from PCO-GENOLS to PCO-PLUS.215[9]

On August 22, 2000, respondent filed a Complaint 216[10] for Infringement of Trademark with Prayer for Preliminary Injunction against petitioner, praying that the latter cease and desist from using the brand PCO-GENOLS for being confusingly similar with respondents trademark PYCNOGENOL. It, likewise, prayed for actual and nominal damages, as well as attorneys fees.217[11]

In its Answer,218[12] petitioner contended that respondent could not file the infringement case considering that the latter is not the registered owner of the trademark PYCNOGENOL, but one Horphag Research Limited. It, likewise, claimed that the two marks were not confusingly similar. Finally, it denied liability, since it discontinued the use of the
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mark prior to the institution of the infringement case. Petitioner thus prayed for the dismissal of the complaint. By way of counterclaim, petitioner prayed that respondent be directed to pay exemplary damages and attorneys fees.219[13]

During the pre-trial, the parties admitted the following:

1. Defendant [petitioner] is a corporation duly organized and existing under the laws of the Republic of the Philippines with business address at No. 7 Annapolis Street, Greenhills, San Juan, Metro Manila;

2. The trademark PYCNOGENOL of the plaintiff is duly registered with the Intellectual Property Office but not with the Bureau of Food and Drug (BFAD).

3. The defendants product PCO-GENOLS is duly registered with the BFAD but not with the Intellectual Property Office (IPO).

4. The defendant corporation discontinued the use of and had withdrawn from the market the products under the name of PCO-GENOLS as of June 19, 2000, with its trademark changed from PCO-GENOLS to PCO-PLUS.

5. Plaintiff corporation sent a demand letter to the defendant dated 02 June 2000.220[14]

On January 16, 2006, the RTC decided in favor of respondent. It observed that PYCNOGENOL and PCO-GENOLS have the same suffix GENOL which appears to be merely descriptive and thus open for trademark registration by combining it with other words. The trial court, likewise, concluded that the marks, when read, sound similar, and thus confusingly similar especially since they both refer to food supplements. The court added that petitioners liability was not negated by its act of pulling out of the market the products bearing the questioned mark since the fact remains that from 1996 until June 2000, petitioner had infringed respondents product by using the trademark PCO-GENOLS. As respondent manifested that it was no longer interested in recovering actual damages, petitioner was made to answer only for attorneys fees amounting to P50,000.00.221[15] For lack of sufficient factual and legal basis, the court dismissed petitioners counterclaim. Petitioners motion for reconsideration was likewise denied.

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On appeal to the CA, petitioner failed to obtain a favorable decision. The appellate court explained that under the Dominancy or the Holistic Test, PCO-GENOLS is deceptively similar to PYCNOGENOL. It also found just and equitable the award of attorneys fees especially since respondent was compelled to litigate.222[16]

Hence, this petition, assigning the following errors:

I. THAT THE COURT OF APPEALS ERRED IN AFFRIMING THE RULING OF THE LOWER [COURT] THAT RESPONDENTS TRADEMARK P[YC]NOGENOLS (SIC) WAS INFRINGED BY PETITIONERS PCO-GENOLS.

II.

THAT THE COURT OF APPEALS ERRED IN AFFIRMING THE AWARD OF ATTORNEYS FEES IN FAVOR OF RESPONDENT HORPHAG RESEARCH MANAGEMENT S.A. IN THE AMOUNT OF Php50,000.00.223[17]

The petition is without merit.

It must be recalled that respondent filed a complaint for trademark infringement against petitioner for the latters use of the mark PCO-GENOLS which the former claimed to be confusingly similar to its trademark PYCNOGENOL. Petitioners use of the questioned mark started in 1996 and ended in June 2000. The instant case should thus be decided in light of the provisions of Republic Act (R.A.) No. 166 224[18] for the acts committed until December 31, 1997, and R.A. No. 8293225[19] for those committed from January 1, 1998 until June 19, 2000.

A trademark is any distinctive word, name, symbol, emblem, sign, or device, or any combination thereof, adopted and used by a manufacturer or merchant on his goods to identify and distinguish them from those manufactured, sold, or dealt by others. Inarguably, a trademark deserves protection.226[20]

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Section 22 of R.A. No. 166, as amended, and Section 155 of R.A. No. 8293 define what constitutes trademark infringement, as follows:

Sec. 22. Infringement, what constitutes. Any person who shall use, without the consent of the registrant, any reproduction, counterfeit, copy or colorable imitation of any registered mark or tradename in connection with the sale, offering for sale, or advertising of any goods, business or services on or in connection with which such use is likely to cause confusion or mistake or to deceive purchasers or others as to the source or origin of such goods or services, or identity of such business; or reproduce, counterfeit, copy of colorably imitate any such mark or tradename and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used upon or in connection with such goods, business, or services, shall be liable to a civil action by the registrant for any or all of the remedies herein provided.

Sec. 155. Remedies; Infringement. Any person who shall, without the consent of the owner of the registered mark:

155.1. Use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark or the same container or a dominant feature thereof in connection with the sale, offering for sale, distribution, advertising of any goods or services including other preparatory steps necessary to carry out the sale of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or

155.2. Reproduce, counterfeit, copy or colorably imitate a registered mark or a dominant feature thereof and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall be liable in a civil action for infringement by the registrant for the remedies hereinafter set forth: Provided, That infringement takes place at the moment any of the acts stated in Subsection 155.1 or this subsection are committed regardless of whether there is actual sale of goods or services using the infringing material.

In accordance with Section 22 of R.A. No. 166, as well as Sections 2, 2-A, 9-A, and 20 thereof, the following constitute the elements of trademark infringement:

(a) A trademark actually used in commerce in the Philippines and registered in the principal register of the Philippine Patent Office[;]

(b) [It] is used by another person in connection with the sale, offering for sale, or advertising of any goods, business or services or in connection with which such use is likely to cause confusion or mistake or to deceive purchasers or others as to the source or origin of such goods or services, or identity of such business; or such trademark is reproduced, counterfeited, copied or colorably imitated by another person and such reproduction, counterfeit, copy or colorable imitation is applied to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used upon or in connection with such goods, business or services as to likely cause confusion or mistake or to deceive purchasers[;]

(c)

[T]he trademark is used for identical or similar goods[;] and

(d) [S]uch act is done without the consent of the trademark registrant or assignee.227[21]

On the other hand, the elements of infringement under R.A. No. 8293 are as follows:

(1) The trademark being infringed is registered in the Intellectual Property Office; however, in infringement of trade name, the same need not be registered; (2) The trademark or trade name is reproduced, counterfeited, copied, or colorably imitated by the infringer; (3) The infringing mark or trade name is used in connection with the sale, offering for sale, or advertising of any goods, business or services; or the infringing mark or trade name is applied to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used upon or in connection with such goods, business or services; (4) The use or application of the infringing mark or trade name is likely to cause confusion or mistake or to deceive purchasers or others as to the goods or services themselves or as to the source or origin of such goods or services or the identity of such business; and

(5) It is without the consent of the trademark or trade name owner or the assignee
thereof.228[22]

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In the foregoing enumeration, it is the element of likelihood of confusion that is the gravamen of trademark infringement. But likelihood of confusion is a relative concept. The particular, and sometimes peculiar, circumstances of each case are determinative of its existence. Thus, in trademark infringement cases, precedents must be evaluated in the light of each particular case.229[23]

In determining similarity and likelihood of confusion, jurisprudence has developed two tests: the Dominancy Test and the Holistic or Totality Test. The Dominancy Test focuses on the similarity of the prevalent features of the competing trademarks that might cause confusion and deception, thus constituting infringement.230[24] If the competing trademark contains the main, essential and dominant features of another, and confusion or deception is likely to result, infringement takes place. Duplication or imitation is not necessary; nor is it necessary that the infringing label should suggest an effort to imitate. The question is whether the use of the marks involved is likely to cause confusion or mistake in the mind of the public or to deceive purchasers.231[25] Courts will consider more the aural and visual impressions created by the marks in the public mind, giving little weight to factors like prices, quality, sales outlets, and market segments.232[26]

In contrast, the Holistic Test entails a consideration of the entirety of the marks as applied to the products, including the labels and packaging, in determining confusing similarity.233[27] The discerning eye of the observer must focus not only on the predominant words but also on the other features appearing on both labels in order that the observer may draw his conclusion whether one is confusingly similar to the other.234[28]

The trial and appellate courts applied the Dominancy Test in determining whether there was a confusing similarity between the marks PYCNOGENOL and PCO-GENOL. Applying the test, the trial court found, and the CA affirmed, that:

Both the word[s] PYCNOGENOL and PCO-GENOLS have the same suffix GENOL which on evidence, appears to be merely descriptive and furnish no indication of the origin of the article and hence, open for trademark registration by the plaintiff thru combination with another word or phrase such
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as PYCNOGENOL, Exhibits A to A-3. Furthermore, although the letters Y between P and C, N between O and C and S after L are missing in the [petitioners] mark PCO-GENOLS, nevertheless, when the two words are pronounced, the sound effects are confusingly similar not to mention that they are both described by their manufacturers as a food supplement and thus, identified as such by their public consumers. And although there were dissimilarities in the trademark due to the type of letters used as well as the size, color and design employed on their individual packages/bottles, still the close relationship of the competing products name in sounds as they were pronounced, clearly indicates that purchasers could be misled into believing that they are the same and/or originates from a common source and manufacturer.235[29]

We find no cogent reason to depart from such conclusion.

This is not the first time that the Court takes into account the aural effects of the words and letters contained in the marks in determining the issue of confusing similarity. In Marvex Commercial Co., Inc. v. Petra Hawpia & Co., et al., 236[30] cited in McDonalds Corporation v. L.C. Big Mak Burger, Inc.,237[31] the Court held:

The following random list of confusingly similar sounds in the matter of trademarks, culled from Nims, Unfair Competition and Trade Marks, 1947, Vol. 1, will reinforce our view that SALONPAS and LIONPAS are confusingly similar in sound: Gold Dust and Gold Drop; Jantzen and Jass-Sea; Silver Flash and Supper Flash; Cascarete and Celborite; Celluloid and Cellonite; Chartreuse and Charseurs; Cutex and Cuticlean; Hebe and Meje; Kotex and Femetex; Zuso and Hoo Hoo. Leon Amdur, in his book Trade-Mark Law and Practice, pp. 419-421, cities, as coming within the purview of the idem sonans rule, Yusea and U-C-A, Steinway Pianos and Steinberg Pianos, and Seven-Up and Lemon-Up. In Co Tiong vs. Director of Patents, this Court unequivocally said that Celdura and Cordura are confusingly similar in sound; this Court held in Sapolin Co. vs. Balmaceda, 67 Phil. 795 that the name Lusolin is an infringement of the trademark Sapolin, as the sound of the two names is almost the same.238[32]

Finally, we reiterate that the issue of trademark infringement is factual, with both the trial and appellate courts finding the allegations of infringement to be meritorious. As we

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have consistently held, factual determinations of the trial court, concurred in by the CA, are final and binding on this Court.239[33] Hence, petitioner is liable for trademark infringement.

We, likewise, sustain the award of attorneys fees in favor of respondent. Article 2208 of the Civil Code enumerates the instances when attorneys fees are awarded, viz.:

Art. 2208. In the absence of stipulation, attorneys fees and expenses of litigation, other than judicial costs, cannot be recovered, except:

1.

When exemplary damages are awarded;

2. When the defendants act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest; 3. 4. plaintiff; In criminal cases of malicious prosecution against the plaintiff; In case of a clearly unfounded civil action or proceeding against the

5. Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiffs plainly valid, just and demandable claim; 6. In actions for legal support;

7. In actions for the recovery of wages of household helpers, laborers and skilled workers; 8. In actions for indemnity under workmens compensation and employers liability laws; 9. crime; 10. In a separate civil action to recover civil liability arising from a

When at least double judicial costs are awarded;

11. In any other case where the court deems it just and equitable that attorneys fees and expenses of litigation should be recovered.

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In all cases, the attorneys fees and expenses of litigation must be reasonable.

As a rule, an award of attorneys fees should be deleted where the award of moral and exemplary damages is not granted.240[34] Nonetheless, attorneys fees may be awarded where the court deems it just and equitable even if moral and exemplary damages are unavailing.241[35] In the instant case, we find no reversible error in the grant of attorneys fees by the CA.

WHEREFORE, premises considered, the petition is DENIED for lack of merit. The Court of Appeals Decision dated July 27, 2007 and its Resolution dated October 15, 2007 in CA-G.R. CV No. 87556 are AFFIRMED.

SO ORDERED. G.R. No. 185379 November 27, 2009

PEOPLE OF THE PHILIPPINES, Appellee, vs. ZENAIDA QUEBRAL y MATEO, FERNANDO LOPEZ y AMBUS and MICHAEL SALVADOR y JORNACION, Appellants. DECISION ABAD, J.: This case is about the requirement of authentication of seized prohibited drugs and the conduct of warrantless search of a suspect by the roadside based on probable cause. The Facts and the Case The provincial prosecutor of Bulacan charged the accused Zenaida Quebral, Eusebio Quebral, Fernando Lopez, and Michael Salvador before the Regional Trial Court (RTC) of Malolos, Bulacan, in Criminal Case 3331-M-2002 with violation of Section 5, Article II of Republic Act 9165 or the Comprehensive Dangerous Drugs Act of 2002. At the trial of this case, the prosecution presented PO3 Cecilio Galvez of the police force of Balagtas, Bulacan, who testified that at 7:00 p.m. on September 7, 2002, the Chief of the Drug Enforcement Unit called him and other police officers to a briefing regarding a police informers report that two men and a woman on board an owner type jeep with a specific plate number would deliver shabu, a prohibited drug, on the following day at a Petron Gasoline Station in Balagtas to Michael Salvador, a drug pusher in the police watch list.1

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After a short briefing on the morning of September 8, 2002, PO3 Galvez and six other police officers went to the North Luzon Expressway Balagtas Exit at Burol 2nd, watching out for the owner type jeep mentioned. They got there at around 7:45 a.m. Since the informer did not give the exact time of the delivery of shabu, the police officers staked out the expressway exit until late afternoon. At around 4:00 p.m., such a jeep, bearing the reported plate number and with two men and a woman on board, came out of the Balagtas Exit. Galvez identified the two men as accused Eusebio Quebral, who drove the jeep, and accusedappellant Fernando Lopez and the woman as accused-appellant Zenaida Quebral. The police trailed the jeep as it proceeded to the town proper of Balagtas and entered a Petron gas station along the McArthur Highway. After a few minutes, a Tamaraw FX arrived from which accused- appellant Michael Salvador alighted. He walked towards the jeep and talked to accused Zenaida Quebral, who then handed a white envelope to him. On seeing this, PO3 Galvez, who was watching from about 15 meters in a tinted car, signaled his back-up team to move. The police officers alighted from their vehicles and surrounded the jeep. Galvez took the envelope from Michael, opened it, and saw five plastic sachets containing white crystalline substance which he believed was shabu. The Bulacan Provincial Crime Laboratory Office later examined the substance and submitted a chemistry report,2 stating that it was shabu or methylamphetamine hydrochloride, a prohibited drug. Appellants denied having committed the crime, claiming only that PO3 Galvez and his fellow police officers merely framed them up. On March 18, 2004 the RTC found all four accused guilty of the crime charged and sentenced them to suffer the penalty of life imprisonment and to pay a fine of P5 million. On May 20, 2005, while the Court of Appeals (CA) was reviewing the case on appeal in CAG.R. CR-HC 01997, accused Eusebio Quebral died, prompting it to dismiss the case against him. On February 13, 2008, the CA rendered judgment,3 entirely affirming the decision of the RTC. The remaining accused appealed to this Court. The Issues Presented Appellants basically raise two issues for this Courts resolution: 1. Whether or not the CA erred in not excluding the evidence of the seized shabu on the ground that, having illegally arrested the accused, the police officers subsequent search of their persons incident to such arrest was also illegal; and 2. Whether or not the prosecution presented ample proof of appellants guilt beyond reasonable doubt. The Rulings of the Court One. The accused claim that since the police did not have valid ground to arrest them, their subsequent search of them was illegal and the evidence of the seized shabu cannot be admitted in evidence against them. With the exclusion of the seized drugs, there would not be proof that they were passing them.

The accused-appellants invoke the rule that a person may be arrested even without a warrant only a) if he is caught in the act of committing a crime, b) if he has just committed a crime and the arresting officer pursued him, or c) if he escaped from a legal confinement.4 But in the first two instances, the officer must have personal knowledge of the facts underlying the arrest. The target persons observable acts must clearly spell a crime. If no crime is evident from those acts, no valid arrest can be made. An informant whispering to the police officers ear that the person walking or standing on the street has committed or is committing a crime will not do. The arresting officer must himself perceive the manifestations of a crime.5 The accused-appellants point out that in this case the police officers cannot say that what they saw from a distance constituted a crime. Two men and a woman arrived on board a jeep at the gas station. A third man approached the jeep, spoke to the woman and she handed him a folded white envelope that appeared to contain something. These acts do not constitute a crime per se. Consequently, their arrest at this point was illegal. The subsequent search of their persons, not being based on a valid arrest, was itself illegal. But, actually, it was more of a search preceding an arrest. The police officers had information that two men and a woman on board an owner type jeep would arrive in Balagtas and hand over a consignment of shabu at a gas station in town to a known drug dealer whose name was on the police watch list. When these things unfolded before their eyes as they watched from a distance, the police came down on those persons and searched them, resulting in the discovery and seizure of a quantity of shabu in their possession. In such a case, the search is a valid search justifying the arrest that came after it. This Court held in People v. Bagista6 that the NARCOM officers had probable cause to stop and search all vehicles coming from the north at Acop, Tublay, Benguet, in view of the confidential information they received from their regular informant that a woman fitting the description of the accused would be bringing marijuana from up north. They likewise had probable cause to search her belongings since she fitted the given description. In such a case, the warrantless search was valid and, consequently, any evidence obtained from it is admissible against the accused.1avvphi1 As the lower court aptly put it in this case, the law enforcers already had an inkling of the personal circumstances of the persons they were looking for and the criminal act they were about to commit. That these circumstances played out in their presence supplied probable cause for the search. The police acted on reasonable ground of suspicion or belief supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that a crime has been committed or is about to be committed.7 Since the seized shabu resulted from a valid search, it is admissible in evidence against the accused. It would have been impractical for the police to apply with the appropriate court for a search warrant since their suspicion found factual support only at the moment accused Eusebio Quebral, Fernando Lopez, and Zenaida Quebral rendezvoused with Michael Salvador at the Petron gas station for the hand over of the drugs. An immediate search was warranted since they would have gone away by the time the police could apply for a search warrant.8 The drugs could be easily transported and concealed with impunity.9 The case of People v. Aminnudin10 cannot apply to this case. In Aminnudin, the informant gave the police the name and description of the person who would be coming down from a ship the following day carrying a shipment of drugs. In such a case, the Court held that the police had ample time to seek a search warrant against the named person so they could validly search his luggage. In the present case, all the information the police had about the persons in possession of the prohibited drugs was that they were two men and a woman on

board an owner type jeep. A search warrant issued against such persons could be used by the police to harass practically anyone. Two. The accused-appellants point out that the testimony of PO3 Galvez cannot support their conviction since it does not bear the corroboration of the other officers involved in the police operation against them. But the failure of these other officers did not weaken the prosecution evidence. The lone declaration of an eyewitness is sufficient to convict if, as in this case, the court finds the same credible.11 Credibility goes into a persons integrity, to the fact that he is worthy of belief,12 and does not come with the number of witnesses.13 The accused-appellants also point out that, since the chemist who examined the seized substance did not testify in court, the prosecution was unable to establish the indispensable element of corpus delicti. But this claim is unmeritorious. This Court has held that the nonpresentation of the forensic chemist in illegal drug cases is an insufficient cause for acquittal.14 The corpus delicti in dangerous drugs cases constitutes the dangerous drug itself. This means that proof beyond doubt of the identity of the prohibited drug is essential.15 Besides, corpus delicti has nothing to do with the testimony of the laboratory analyst. In fact, this Court has ruled that the report of an official forensic chemist regarding a recovered prohibited drug enjoys the presumption of regularity in its preparation. Corollarily, under Section 44 of Rule 130, Revised Rules of Court, entries in official records made in the performance of official duty are prima facie evidence of the facts they state.16 Therefore, the report of Forensic Chemical Officer Sta. Maria that the five plastic sachets PO3 Galvez gave to her for examination contained shabu is conclusive in the absence of evidence proving the contrary. At any rate, as the CA pointed out, the defense agreed during trial to dispense with the testimony of the chemist and stipulated on his findings.17 Parenthetically, the accused-appellants raised their objection to the police chemists report only on appeal when such objection should have been made when the prosecution offered the same in evidence. They may, thus, be considered to have waived their objection to such report.18 The familiar rule in this jurisdiction is that the inadmissibility of certain documents, if not urged before the court below, cannot be raised for the first time on appeal.191avvphi1 The accused-appellants take advantage of PO3 Galvezs testimony that they conducted their operation on September 2, 2002, the date that the informant gave them, and that the following day was September 8, 200220 to attack his credibility. But inconsistency is trivial and appears to be a pure mistake. Lapses like this even enhance the truthfulness of the testimony of a witness as they erase any suspicion of a rehearsed declaration.21 Besides, PO3 Galvez corrected this mistake on cross-examination. He said that their informant gave them his tip at 7:00 p.m. of September 7, 2002.22 Finally, the accused-appellants contend that the prosecution evidence failed to show compliance with the requirements of law for handling evidence. But, as has been held in a recent case,23 failure to comply strictly with those requirements will not render the seizure of the prohibited drugs invalid for so long as the integrity and evidentiary value of the confiscated items are properly preserved by the apprehending officers. Besides, the accused-appellants did not raise it before the trial court, hence, they cannot raise it for the first time on appeal.24 The CA and the RTC gave credence to the testimony of PO3 Galvez and this Court finds no reason for disagreement. His narration was clear and candid. On the other hand, the accused-appellants claim of a "frame-up" was easy to concoct and so has been the common line of defense in most cases involving violations of the Dangerous Drugs Act.25 Such

defense requires strong and convincing evidence which the accused-appellants failed to satisfy. As the trial court correctly observed, the accused-appellants failed to provide any reason why of all the people plying through the roads they had taken, the police chose to frame them up for the crime. They also failed to explain why the police would plant such huge amount of shabu if a small quantity would be sufficient to send them to jail.26 No arresting officer would plant such quantity of shabu solely to incriminate the accused who have not been shown to be of good financial standing.27 WHEREFORE, the Court DENIES the appeal and AFFIRMS the decision of the Court of Appeals dated February 13, 2008 and of the Regional Trial Court of Malolos dated March 18, 2004. SO ORDERED. G.R. No. 161929 December 8, 2009

LYNN PAZ T. DELA CRUZ, FERNANDO SERRANO, NATHANIEL LUGTU, and JANET S. PINEDA, Petitioners, vs. SANDIGANBAYAN, THE SPECIAL PROSECUTOR and THE PEOPLE OF THE PHILIPPINES, Respondents. DECISION DEL CASTILLO, J.: The principle of the law of the case is an established rule in this jurisdiction. Thus, when an appellate court passes on a question and remands the case to the lower court for further proceedings, the question there settled becomes the law of the case upon subsequent appeal. The court reviewing the succeeding appeal will not re-litigate the case but instead apply the ruling in the previous appeal. This enables the appellate court to perform its duties satisfactorily and efficiently which would be impossible if a question, once considered and decided by it, were to be litigated anew in the same case and upon any and subsequent appeal.1 While the applicability of this principle in this case is straightforward, the cunning attempt of the parties to evade the application thereof is what we unequivocally deplore here. The accused often decry the snail pace of the administration of justice but when they themselves give cause for the delay, they have no reason to complain. We again remind the parties and their counsels to act with candor and not to test the patience of this Court. This is a Petition for Certiorari and Prohibition assailing the Sandiganbayans (1) December 8, 2003 Resolution2 in Criminal Case No. 26042, which ordered petitioners suspension pendente lite and its (2) February 5, 2004 Resolution,3 which denied petitioners motion for reconsideration. Factual Antecedents The instant criminal complaint arose from the construction and/or renovation project involving several multi-purpose halls located in various barangays in the City of Tarlac. Upon post audit, the Provincial Auditor of the Commission on Audit (COA) issued Notice of Disallowance No. 99-001-100(98) dated January 29, 1999 and Notice of Disallowance No. 99003-101(98) dated July 22, 1999 on the ground that what were actually constructed and/or renovated were barangay chapels in violation of Section 29(2),4 Article VI of the Constitution

and Section 3355 of the Local Government Code prohibiting public expenditure for religious purposes.6 On February 6, 1998, private complainants Jesus B. David and Ana Alamo Aguas filed a complaint with the Office of the Ombudsman in connection with the approval and implementation of the aforesaid projects against several local government officials of the City of Tarlac, namely: Gelacio R. Manalang- Mayor Alfredo D. Baquing- Engineer Nathaniel B. Lugtu- Accountant Lynn Paz T. Dela Cruz- Assistant Accountant Fernando L. Serrano- Budget Officer Janet S. Pineda- Planning & Development Officer for violation of Section 3(e)7 of Republic Act (RA) No. 30198 or "The Anti-Graft and Corrupt Practices Act". In his July 13, 1999 Resolution,9 the Ombudsman dismissed the complaint for insufficiency of evidence and prematurity. On September 8, 1999, private complainants moved for reconsideration. As a result, the Ombudsman referred the case to the Office of the Chief Legal Counsel for review and recommendation. In its April 13, 2000 Memorandum,10 the Office of the Chief Legal Counsel recommended that the corresponding information be filed against the aforesaid local officials because there is probable cause to hold them liable for violation of the anti-graft law. Acting favorably thereon, on May 16, 2000, the Ombudsman issued an Order11 directing the Office of the Special Prosecutor to file the necessary information with the Sandiganbayan, viz: That sometime on 6 February 1998 or thereabouts, in the City of Tarlac, province of Tarlac, Philippines and within the jurisdiction of this Honorable Court, accused Gelacio R. Manalang, Alfredo D. Baquing, Lynn Paz T. dela Cruz, Fernando Serrano, Nathaniel Lugtu and Janet S. Pineda, accused Gelacio R. Manalang being the mayor of Tarlac City, Tarlac, a high ranking officer pursuant to R.A. 8249 in relation to Sec. 455(d) of R.A. 7160, and all the other accused then occupying different positions in the government of Tarlac City, conspiring and confederating with one another, committing the crime herein charged in relation to their office, taking advantage of their official position, acting with evident bad faith and manifest partiality, or gross inexcusable negligence, did then and there, wilfully, unlawfully and criminally, cause undue injury to the government and give unwarranted benefits, advantage or preference to a specific group of constituents by approving and releasing the amount of Five Hundred Forty Three Thousand Eight Hundred Pesos (P543,800.00) for the construction of the "multi-purpose halls" in barangays Sapang Tagalog, Sapang Maragul and Dalayap in Tarlac City despite the fact, as Accused knew fully well, that what were being constructed are in truth chapels which would serve private purposes, and not barangay multi-purpose halls and, thereafter, proceeded to implement such construction.12 The case was docketed as Criminal Case No. 26042 and raffled to the Fourth Division. The accused then moved for reinvestigation on the ground that they were not given an opportunity to be heard when the Ombudsman reversed his earlier finding of lack of probable cause. In its July 17, 2000 Order,13 the Sandiganbayan granted the motion and gave the prosecution 20 days to re-evaluate the evidence and submit a report to the court. On July 31, 2001, the

prosecution filed a Manifestation14 with the Sandiganbayan that after conducting its reinvestigation, it found probable cause to charge the accused with violation of the anti-graft law and prayed that the case be set for arraignment. As a consequence, the Sandiganbayan in its August 8, 2001 Resolution15 set the case for arraignment and pre-trial. Undeterred, the accused filed separate motions16 to quash the information and/or to dismiss the case. On April 24, 2003, the Sandiganbayan issued a Resolution17 which denied all of the aforesaid motions and upheld the validity of the subject information. It ruled that the information contained sufficient allegations to charge the accused with violation of Section 3(e) of RA No. 3019, that there exists probable cause to indict the accused and that the motions raise factual issues that cannot be resolved without an adversarial proceeding. The accused then moved for reconsideration which was denied by the Sandiganbayan in its June 2, 2003 Resolution.18 In addition to the reasons stated in its April 24, 2003 Resolution, the Sandiganbayan held that there was no violation of the right of the accused to due process based on the records forwarded to the court by the Ombudsman. On May 12, 2003, the accused were arraigned and pleaded not guilty.19 The prosecution subsequently filed a motion20 to suspend the accused pendente lite. On June 10, 2003, the accused filed a consolidated petition for certiorari and prohibition before this Court against public respondents Fourth Division of the Sandiganbayan, the Ombudsman and the People of the Philippines. They ascribed grave abuse of discretion on the public respondents for filing the information and upholding the validity of the same despite the violation of the right of the accused to due process and the patent lack of probable cause. On June 17, 2003, we resolved to dismiss the petition for lack of merit. Sandiganbayans Ruling On December 8, 2003, the Sandiganbayan issued the assailed Resolution which granted the prosecutions motion and ordered the preventive suspension of the accused for a period of 90 days. It ruled that the validity of the information has been previously settled in its April 24, 2003 Resolution. Thus, under Section 13 of RA No. 3019, the preventive suspension of the accused becomes mandatory. Petitioners thereafter filed a motion for reconsideration which was denied by the Sandiganbayan in its February 5, 2004 Resolution. From the aforesaid adverse rulings, only accused Dela Cruz, Serrano, Lugtu and Pineda (petitioners) sought review before this Court via the instant petition for prohibition and certiorari under Rule 65 of the Rules of Court. Issues Petitioners raise the following issues for our resolution: 1. Whether the subject criminal case was prematurely instituted considering the pendency of petitioners appeals before the COA En Banc. 2. Whether the Ombudsman may still reconsider his Resolution dated July 13, 1999, dismissing the complaint, after the same has already become final and executory. 3. Whether the subject information is fatally defective.

4. Whether, on the basis of the admitted or undisputed facts, there is probable cause to prosecute petitioners and their co-accused for violation of Section 3(e) of RA No. 3019.21 Petitioners Arguments First, petitioners claim that they have been exonerated by the COA En Banc, thus, there is no more basis to prosecute them for violation of the anti-graft law. The filing of the subject criminal case against them was based on the results of a post-audit showing the alleged illegal disbursement of public funds for religious purposes. Consequently, the Provincial Auditor issued notices of disallowance against petitioners and their co-accused Manalang and Baquing. Petitioners thereafter appealed from said notices. Considering that these cases were still on appeal before the COA En Banc, the Ombudsman gravely abused his discretion when he ordered the filing of the subject criminal case against petitioners and their coaccused. Moreover, in the interim and after a series of separate appeals, petitioners Lugtu, Dela Cruz and Serrano were exonerated by the COA En Banc on the common ground that as Accountant, Assistant Accountant and Budget Officer, respectively, they did not take part in the review of the plans and specifications as well as in the implementation, prosecution and supervision of the subject construction and/or renovation project. As for petitioner Pineda, no notice of disallowance was ever issued to her. Thus, with more reason subject criminal case should be dismissed in order to save petitioners from an expensive and vexatious trial. In the same vein, there is no probable cause to hold petitioners liable for violation of the anti-graft law because the Ombudsman himself admitted that what were built were multipurpose halls and not chapels in his November 16, 1999 Decision in OMB-ADM-1-99-0759 which absolved petitioners co-accused Baquing from administrative liability. Second, petitioners contend that the subject information is fatally defective because of the irregularities and due process violations committed during the preliminary investigation of this case. The Ombudsman acted without jurisdiction when he reversed his July 13, 1999 Resolution, which dismissed the criminal complaint, considering that this resolution had long become final and executory. Assuming that private complainants timely moved for reconsideration, the same was defective for failure to furnish all the accused with copies of said motion. The information should, thus, have been quashed under Section 3(d)22 of Rule 117 of the Rules of Court for lack of authority of the Ombudsman to file the same. Finally, petitioners argue that the allegations in the subject information do not constitute an offense because the alleged specific group that was benefited by the construction and/or renovation of the barangay chapels as well as the alleged private purposes served thereby were sufficiently identified and described. Hence, the right of the accused to be informed of the nature and cause of the accusation against them was violated. Respondents Arguments First, respondents counter that the COA is not vested with jurisdiction to determine the criminal liability of petitioners. Its power is limited to the determination of the violation of its accounting and auditing rules and regulations. Hence, the COA En Bancs exclusion of petitioners from liability under the notices of disallowance only relates to the administrative aspect of their accountability. This, however, does not foreclose the Ombudsmans authority to investigate and determine whether there is a crime to be prosecuted. For similar reasons, the exoneration of Baquing from administrative liability by the Ombudsman in his November 16, 1999 Decision in OMB-ADM-1-99-0759, specifically, the finding therein that what were

constructed were multi-purpose halls and not chapels is not binding on the subject criminal case against petitioners and their co-accused. The dismissal of an administrative case does not necessarily bar the filing of a criminal prosecution for the same or similar acts which were the subject of the administrative complaint. Second, respondents aver that there was no denial of due process during the preliminary investigation stage. Private complainants timely moved for reconsideration from the July 13, 1999 Resolution of the Ombudsman. They received a copy of the aforesaid Resolution on August 25, 1999 and filed a letter seeking reconsideration on September 8, 1999 or within the 15-day reglementary period under the Rules of Procedure of the Ombudsman. The Sandiganbayan also found that there was no due process violation as borne out by the records forwarded to said court by the Ombudsman. Further, any defect in the preliminary investigation should be deemed cured because the Sandiganbayan ordered the reinvestigation of this case in its July 17, 2000 Order. After the reinvestigation, the Ombudsman maintained that there is probable cause to indict petitioners and their coaccused. This was affirmed by the Sandiganbayan when it set the case for arraignment and pre-trial. Finally, respondents assert that the identity of the specific group and the private purposes served by the subject construction and/or renovation project are evidentiary matters that should be threshed out during the trial on the merits of this case. Our Ruling The petition lacks merit. The preventive suspension of the accused under Section 13 of RA No. 3019 is mandatory upon a finding that the information is valid. Section 13 of RA No. 3019 provides: Section 13. Suspension and loss of benefits - Any public officer against whom any criminal prosecution under a valid information under this Act or under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. Pursuant to this provision, it becomes mandatory for the court to immediately issue the suspension order upon a proper determination of the validity of the information.23 The court possesses no discretion to determine whether a preventive suspension is necessary to forestall the possibility that the accused may use his office to intimidate witnesses, or frustrate his prosecution, or continue committing malfeasance. The presumption is that unless the accused is suspended, he may frustrate his prosecution or commit further acts of malfeasance or do both.24 In Luciano v. Mariano,25 we laid down the guidelines for the exercise of the courts power to suspend the accused: (c) By way of broad guidelines for the lower courts in the exercise of the power of suspension from office of public officers charged under a valid information under the provisions of Republic Act 3019 or under the provisions

of the Revised Penal Code on bribery, pursuant to Section 13 of said Act, it may be briefly stated that upon the filing of such information, the trial court should issue an order with proper notice requiring the accused officer to show cause at a specific date of hearing why he should not be ordered suspended from office pursuant to the cited mandatory provisions of the Act. Where either the prosecution seasonably files a motion for an order of suspension or the accused in turn files a motion to quash the information or challenges the validity thereof, such show-cause order of the trial court would no longer be necessary. What is indispensable is that the trial court duly hear the parties at a hearing held for determining the validity of the information, and thereafter hand down its ruling, issuing the corresponding order of suspension should it uphold the validity of the information or withholding such suspension in the contrary case. (d) No specific rules need be laid down for such pre-suspension hearing. Suffice it to state that the accused should be given a fair and adequate opportunity to challenge the validity of the criminal proceedings against him, e.g. that he has not been afforded the right of due preliminary investigation; that the acts for which he stands charged do not constitute a violation of the provisions of Republic Act No. 3019 or of the bribery provisions of the Revised Penal Code which would warrant his mandatory suspension from office under Section 13 of the Act; or he may present a motion to quash the information on any of the grounds provided in Rule 117 of the Rules of Court. The mandatory suspension decreed by the Act upon determination of the pendency in court of a criminal prosecution for violation of the Anti-graft Act or for bribery under a valid information requires at the same time that the hearing be expeditious, and not unduly protracted such as to thwart the prompt suspension envisioned by the Act. Hence, if the trial court, say, finds the ground alleged in the quashal motion not to be indubitable, then it shall be called upon to issue the suspension order upon its upholding the validity of the information and setting the same for trial on the merits.26 The issues proper for a pre-suspension hearing are, thus, limited to ascertaining whether: (1) the accused had been afforded due preliminary investigation prior to the filing of the information against him, (2) the acts for which he was charged constitute a violation of the provisions of RA No. 3019 or of the provisions of Title 7, Book II of the Revised Penal Code, or (3) the information against him can be quashed under any of the grounds provided in Section 2, Rule 117 of the Rules of Court.27 While ordinarily we would proceed to determine whether the ruling of the Sandiganbayan upholding the validity of the information and directing the preventive suspension suffer from the vice of grave abuse of discretion, the peculiar circumstances of this case constrain us to dismiss the petition outright. As will be discussed hereunder, all of the above issues proper in a pre-suspension hearing were previously passed upon by the Sandiganbayan and then by us via G.R. No. 158308. Petitioners conveniently failed to reveal that this is the second time that they are appealing before us, raising the same issues and arguments, via the instant petition. The present recourse is, thus, but a futile attempt to reopen settled rulings with the deplorable consequence of delaying the prompt disposition of the main case. The validity of the subject information has been raised and resolved in G.R. No. 158308. Under the principle of the law of the case, this issue can no longer be re-litigated. Upon a review of the records of this case, we find that the issue as to the validity of the information, inclusive of all matters proper for a pre-suspension hearing, has already been

passed upon by us. As stated earlier, the records indicate that on June 10, 2003, petitioners, along with their co-accused Manalang and Baquing, filed a consolidated petition for certiorari and prohibition before this Court against public respondents Fourth Division of the Sandiganbayan, the Ombudsman and the People of the Philippines. This case was docketed as G.R. No. 158308. Petitioners, Manalang and Baquing assailed therein, for having been issued with grave abuse of discretion, the following: (1) Sandiganbayans April 24, 2003 Resolution which upheld the validity of the information charging them with violation of Section 3(e) of RA No. 3019, (2) Sandiganbayans June 2, 2003 Resolution which denied petitioners, Manalang and Baquings separate motions for reconsideration and (3) Ombudsmans May 16, 2000 Order which directed the Office of the Special Prosecutor to file the aforesaid information. In its April 24 and June 2, 2003 Resolutions, the Sandiganbayan had earlier ruled, among others, that the subject information contains sufficient allegations to charge the accused with violation of the anti-graft law; that there was no denial of due process during the preliminary investigation stage; that there exists probable cause to indict the accused; and that the accuseds other arguments, including the pendency of petitioners separate appeals before the COA En Banc, lacked merit. On June 17, 2003, the Court En Banc issued a Resolution dismissing the petition for failure to sufficiently show that the public respondents committed grave abuse of discretion in rendering the assailed issuances and for having raised factual issues. This Resolution became final and executory on July 31, 2003 as per the entry of judgment.28 The issues and arguments in the instant petition were already included in the issues and arguments raised and resolved in G.R. No. 158308.29 The Court En Bancs June 17, 2003 Resolution should, thus, have put to rest the issue of the validity of the subject information. Yet, petitioners would have us now revisit the same issue in the instant petition. This cannot be done. Under the principle of the law of the case, when a question is passed upon by an appellate court and the case is subsequently remanded to the lower court for further proceedings, the question becomes settled upon a subsequent appeal. Whatever is once irrevocably established as the controlling legal rule or decision between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court.30 Thus, considering that the validity of the information has long been settled in G.R. No. 158308, the Sandiganbayan properly granted the motion to suspend the accused pendente lite. In conclusion, we note with deep disapproval the failure of petitioners to properly apprise this Court of the proceedings previously taken in G.R. No. 158308. Petitioners did not act forthrightly when they omitted in their statement of facts that they had earlier challenged the validity of the subject information before the Sandiganbayan and this Court, which issue they now seek to resuscitate in the instant petition. That the accused should be allowed to arduously and zealously defend his life, liberty and property is not in question. But this is so only within the permissible limits of the framework of our criminal laws and rules of procedure. Indubitably, the accused should not give ground for delay in the administration of criminal justice, much less, hide from this Court the patent unworthiness of his cause. WHEREFORE, the petition is DISMISSED. The Sandiganbayans December 8, 2003 Resolution, which ordered petitioners suspension pendente lite and February 5, 2004 Resolution, which denied petitioners motion for reconsideration, are AFFIRMED. This case is REMANDED to the Sandiganbayan for further proceedings. Treble costs against petitioners.

SO ORDERED. G.R. No. 181571 December 16, 2009

JUNO BATISTIS, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION BERSAMIN, J.: On January 23, 2006, the Regional Trial Court (RTC), Branch 24, in Manila convicted Juno Batistis for violations of Section 155 (infringement of trademark) and Section 168 (unfair competition) of the Intellectual Property Code (Republic Act No. 8293).1 On September 13, 2007, the Court of Appeals (CA) affirmed the conviction for infringement of trademark, but reversed the conviction for unfair competition for failure of the State to prove guilt beyond reasonable doubt.2 Batistis now appeals via petition for review on certiorari to challenge the CAs affirmance of his conviction for infringement of trademark. We affirm the conviction, but we modify the penalty by imposing an indeterminate sentence, conformably with the Indeterminate Sentence Law and pertinent jurisprudence. Antecedents The Fundador trademark characterized the brandy products manufactured by Pedro Domecq, S.A. of Cadiz, Spain.3 It was duly registered in the Principal Register of the Philippines Patent Office on July 12, 1968 under Certificate of Registration No. 15987,4 for a term of 20 years from November 5, 1970. The registration was renewed for another 20 years effective November 5, 1990.5 Allied Domecq Philippines, Inc., a Philippine corporation exclusively authorized6 to distribute Fundador brandy products imported from Spain wholly in finished form,7 initiated this case against Batistis. Upon its request, agents of the National Bureau of Investigation (NBI) conducted a test-buy in the premises of Batistis, and thereby confirmed that he was actively engaged in the manufacture, sale and distribution of counterfeit Fundador brandy products.8 Upon application of the NBI agents based on the positive results of the test-buy,9 Judge Antonio M. Eugenio, Jr. of the Manila RTC issued on December 20, 2001 Search Warrant No. 01-2576,10 authorizing the search of the premises of Batistis located at No.1664 Onyx St., San Andres Bukid, Sta. Ana, Manila. The search yielded 20 empty Carlos I bottles, 10 empty bottles of Black Label whiskey, two empty bottles of Johnny Walker Swing, an empty bottle of Remy Martin XO, an empty bottle of Chabot, 241 empty Fundador bottles, 163 boxes of Fundador, a half sack of Fundador plastic caps, two filled bottles of Fundador brandy, and eight cartons of empty Jose Cuervo bottles.11 The Office of the City Prosecutor of Manila formally charged Batistis in the RTC in Manila with two separate offenses, namely, infringement of trademark and unfair competition, through the following information, to wit:

That on or about December 20, 2001, in the City of Manila, Philippines, the said accused, being then in possession of two hundred forty one (241) empty Fundador bottles, one hundred sixty three Fundador boxes, one half (1/2) sack of Fundador plastic caps, and two (2) Fundador bottles with intention of deceiving and defrauding the public in general and Allied Domecq Spirits and Wines and Allied Domecq Philippines, Inc. represented by Atty. Leonardo P. Salvador, a corporation duly organized and existing under the laws of the Republic of the Philippines and engaged in manufacturing of Fundador Brandy under license of Pedro Domecq, S.A. Cadiz, Spain, and/or copyright owner of the said product, did then and there wilfully, unlawfully and feloniously reproduce, sell and offer for sale, without prior authority and consent of said manufacturing company, the accused giving their own low quality product the general appearance and other features of the original Fundador Brandy of the said manufacturing company which would be likely induce the public to believe that the said fake Fundador Brandy reproduced and/or sold are the real Fundador Brandy produced or distributed by the Allied Domecq Spirits and Wines Limited, U.K. and Allied Domecq Philippines, Inc. to the damage and prejudice of the latter and the public. Contrary to law.12 With Batistis pleading not guilty on June 3, 2003,13 the RTC proceeded to trial. On January 23, 2006, the RTC found Batistis guilty beyond reasonable doubt of infringement of trademark and unfair competition, viz: ACCORDINGLY, this Court finds the accused JUNO BATISTIS Guilty Beyond Reasonable Doubt of the crime of Violation of Section 155 of the Intellectual Property Code and hereby sentences him to suffer the penalty of imprisonment of TWO (2) YEARS and to pay a fine of FIFTY THOUSAND (P50,000.00) PESOS. This Court likewise finds accused JUNO BATISTIS Guilty Beyond Reasonable Doubt of the crime of Violation of Section 168 (sic) penalty of imprisonment of TWO (2) YEARS and to pay a fine of FIFTY THOUSAND (Php50,000.00) PESOS. Accused is further ordered to indemnify the private complainant the sum of TWENTY-FIVE (Php25,000.00) PESOS as actual damages. The following items recovered from the premises of the accused and subject of the case are hereby ordered destroyed, pursuant to existing rules and regulations: Twenty (20) empty Carlos 1 bottles Ten (10) Black Label empty bottles Two (2) empty bottles of Jhonny (sic) Walker Swing One(1) empty bottle of Remy Martin XO One (1) empty bottle of Chabot Two hundred forty-one (241) empty Fundador bottles One hundred sixty-three (163) Fundador boxes One half (1/2 sack of Fundador plastic caps, and

Two (2) filled Fundador bottles Eight (8) boxes of empty Jose Cuervo bottles WITH COSTS AGAINST ACCUSED SO ORDERED.14 Batistis appealed to the CA, which, on September 13, 2007, affirmed his conviction for infringement of trademark, but acquitted him of unfair competition,15 disposing: WHEREFORE, premises considered, the Appeal of Appellant JUNO BATISTIS is hereby PARTIALLY GRANTED. The challenged Decision is AFFIRMED in so far as the charge against him for Violation of Section 155 of the Intellectual Property Code is concerned. However, for failure of the prosecution to prove to a moral certainty the guilt of the said Appellant, for violation of Section 168 of the same code a judgment of ACQUITTAL is hereby rendered in his favor. SO ORDERED.16 After the CA denied his motion for reconsideration, Batistis brought this appeal. Issue Batistis contends that: THE REGIONAL TRIAL COURT ERRED IN CONVICTING THE ACCUSED ON THE BASIS OF THE SELF-SERVING AFFIDAVITS AND TESTIMONIES OF THE POLICE OFFICERS WHO CONDUCTED THE RAID ON THE HOUSE OF THE ACCUSED. He submits that the only direct proofs of his guilt were the self-serving testimonies of the NBI raiding team; that he was not present during the search; that one of the NBI raiding agents failed to immediately identify him in court; and that aside from the two bottles of Fundador brandy, the rest of the confiscated items were not found in his house. Ruling The petition for review has no merit. 1. Appeal confined only to Questions of Law Pursuant to Section 3,17 Rule 122, and Section 9,18 Rule 45, of the Rules of Court, the review on appeal of a decision in a criminal case, wherein the CA imposes a penalty other than death, reclusion perpetua, or life imprisonment, is by petition for review on certiorari. A petition for review on certiorari raises only questions of law. Sec. 1, Rule 45, Rules of Court, explicitly so provides, viz:

Section 1. Filing of petition with Supreme Court.A party desiring to appeal by certiorari from a judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition may include an application for a writ of preliminary injunction or other provisional remedies and shall raise only questions of law, which must be distinctly set forth. The petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency. Accordingly, we reject the appeal for the following reasons: Firstly: The petition for review replicates Batistis appellant's brief filed in the CA,19 a true indication that the errors he submits for our review and reversal are those he had attributed to the RTC. He thereby rests his appeal on his rehashed arguments that the CA already discarded. His appeal is, therefore, improper, considering that his petition for review on certiorari should raise only the errors committed by the CA as the appellate court, not the errors of the RTC. Secondly: Batistis assigned errors stated in the petition for review on certiorari require a reappreciation and re-examination of the trial evidence. As such, they raise issues evidentiary and factual in nature. The appeal is dismissible on that basis, because, one, the petition for review thereby violates the limitation of the issues to only legal questions, and, two, the Court, not being a trier of facts, will not disturb the factual findings of the CA, unless they were mistaken, absurd, speculative, conflicting, tainted with grave abuse of discretion, or contrary to the findings reached by the court of origin.20 Whether a question of law or a question of fact is involved is explained in Belgica v. Belgica:21 xxx [t]here exists a question of law when there is doubt on what the law applicable to a certain set of facts is. Questions of fact, on the other hand, arise when there is an issue regarding the truth or falsity of the statement of facts. Questions on whether certain pieces of evidence should be accorded probative value or whether the proofs presented by one party are clear, convincing and adequate to establish a proposition are issues of fact. Such questions are not subject to review by this Court. As a general rule, we review cases decided by the CA only if they involve questions of law raised and distinctly set forth in the petition.22 Thirdly: The factual findings of the RTC, its calibration of the testimonies of the witnesses, and its assessment of their probative weight are given high respect, if not conclusive effect, unless cogent facts and circumstances of substance, which if considered, would alter the outcome of the case, were ignored, misconstrued or misinterpreted.23 To accord with the established doctrine of finality and bindingness of the trial courts findings of fact, we do not disturb such findings of fact of the RTC, particularly after their affirmance by the CA, for Batistis, as appellant, did not sufficiently prove any extraordinary circumstance justifying a departure from such doctrine. 2. Findings of fact were even correct

A review of the decision of the CA, assuming that the appeal is permissible, even indicates that both the RTC and the CA correctly appreciated the evidence against the accused, and correctly applied the pertinent law to their findings of fact. Article 155 of the Intellectual Property Code identifies the acts constituting infringement of trademark, viz: Section 155. Remedies; Infringement. Any person who shall, without the consent of the owner of the registered mark: 155.1. Use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark or the same container or a dominant feature thereof in connection with the sale, offering for sale, distribution, advertising of any goods or services including other preparatory steps necessary to carry out the sale of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or 155.2. Reproduce, counterfeit, copy or colorably imitate a registered mark or a dominant feature thereof and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall be liable in a civil action for infringement by the registrant for the remedies hereinafter set forth: Provided, That the infringement takes place at the moment any of the acts stated in Subsection 155.1 or this subsection are committed regardless of whether there is actual sale of goods or services using the infringing material. Harvey Tan, Operations Manager of Pedro Domecq, S.A. whose task involved the detection of counterfeit products in the Philippines, testified that the seized Fundador brandy, when compared with the genuine product, revealed several characteristics of counterfeiting, namely: (a) the Bureau of Internal Revenue (BIR) seal label attached to the confiscated products did not reflect the word tunay when he flashed a black light against the BIR label; (b) the "tamper evident ring" on the confiscated item did not contain the word Fundador; and (c) the word Fundador on the label was printed flat with sharper edges, unlike the raised, actually embossed, and finely printed genuine Fundador trademark.24 There is no question, therefore, that Batistis exerted the effort to make the counterfeit products look genuine to deceive the unwary public into regarding the products as genuine. The buying public would be easy to fall for the counterfeit products due to their having been given the appearance of the genuine products, particularly with the difficulty of detecting whether the products were fake or real if the buyers had no experience and the tools for detection, like black light. He thereby infringed the registered Fundador trademark by the colorable imitation of it through applying the dominant features of the trademark on the fake products, particularly the two bottles filled with Fundador brandy.25 His acts constituted infringement of trademark as set forth in Section 155, supra. 3. Penalty Imposed should be an Indeterminate Penalty and Fine

Section 170 of the Intellectual Property Code provides the penalty for infringement of trademark, to wit: Section 170. Penalties. - Independent of the civil and administrative sanctions imposed by law, a criminal penalty of imprisonment from two (2) years to five (5) years and a fine ranging from Fifty thousand pesos (P50,000) to Two hundred thousand pesos(P200,000), shall be imposed on any person who is found guilty of committing any of the acts mentioned in Section 155, Section 168 and Subsection 169.1. (Arts. 188 and 189, Revised Penal Code). The CA affirmed the decision of the RTC imposing the "the penalty of imprisonment of TWO (2) YEARS and to pay a fine of FIFTY THOUSAND (P50,000.00) PESOS." We rule that the penalty thus fixed was contrary to the Indeterminate Sentence Law,26 as amended by Act No. 4225. We modify the penalty. Section 1 of the Indeterminate Sentence Law, as amended, provides: Section 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. The straight penalty the CA imposed was contrary to the Indeterminate Sentence Law, whose Section 1 requires that the penalty of imprisonment should be an indeterminate sentence. According to Spouses Bacar v. Judge de Guzman,Jr.,27 the imposition of an indeterminate sentence with maximum and minimum periods in criminal cases not excepted from the coverage of the Indeterminate Sentence Law pursuant to its Section 228 is mandatory, viz: The need for specifying the minimum and maximum periods of the indeterminate sentence is to prevent the unnecessary and excessive deprivation of liberty and to enhance the economic usefulness of the accused, since he may be exempted from serving the entire sentence, depending upon his behavior and his physical, mental, and moral record. The requirement of imposing an indeterminate sentence in all criminal offenses whether punishable by the Revised Penal Code or by special laws, with definite minimum and maximum terms, as the Court deems proper within the legal range of the penalty specified by the law must, therefore, be deemed mandatory. Indeed, the imposition of an indeterminate sentence is mandatory. For instance, in Argoncillo v. Court of Appeals,29 three persons were prosecuted for and found guilty of illegal fishing (with the use of explosives) as defined in Section 33, Presidential Decree No. 704, as amended by Presidential Decree No. 1058, for which the prescribed penalty was imprisonment from 20 years to life imprisonment. The trial court imposed on each of the accused a straight penalty of 20 years imprisonment, and the CA affirmed the trial court. On appeal, however, this Court declared the straight penalty to be erroneous, and modified it by imposing imprisonment ranging from 20 years, as minimum, to 25 years, as maximum.

We are aware that an exception was enunciated in People v. Nang Kay,30 a prosecution for illegal possession of firearms punished by a special law (that is, Section 2692, Revised Administrative Code, as amended by Commonwealth Act 56 and Republic Act No. 4) with imprisonment of not less than five years nor more than ten years. There, the Court sustained the straight penalty of five years and one day imposed by the trial court (Court of First Instance of Rizal) because the application of the Indeterminate Sentence Law would be unfavorable to the accused by lengthening his prison sentence. Yet, we cannot apply the Nang Kay exception herein, even if this case was a prosecution under a special law like that in Nang Kay. Firstly, the trial court in Nang Kay could well and lawfully have given the accused the lowest prison sentence of five years because of the mitigating circumstance of his voluntary plea of guilty, but, herein, both the trial court and the CA did not have a similar circumstance to justify the lenity towards the accused. Secondly, the large number of Fundador articles confiscated from his house (namely, 241 empty bottles of Fundador, 163 Fundador boxes, a half sack full of Fundador plastic caps, and two filled bottles of Fundador Brandy) clearly demonstrated that Batistis had been committing a grave economic offense over a period of time, thereby deserving for him the indeterminate, rather than the straight and lower, penalty. ACCORDINGLY, we affirm the decision dated September 13, 2007 rendered in C.A.-G.R. CR No. 30392 entitled People of the Philippines v. Juno Batistis, but modify the penalty to imprisonment ranging from two years, as minimum, to three years, as maximum, and a fine of P50,000.00. The accused shall pay the costs of suit. SO ORDERED. G.R. No. 174584 January 20, 2010

VICTORIA P. CABRAL, Petitioner, vs. JACINTO UY, MICHAEL UY, MARILYN O. UY, RICHARD O. UY, REY IGNACIO DIAZ, JOSE PO and JUANITO MALTO, Respondents. ABAD, J.: This case is about the power of courts to hear criminal violations of the law that protects subdivision buyers against developers selling lots before they are issued licenses to sell and the effect of the subsequent issuance of such licenses to sales that land developers make before the issuance of their licenses. The Facts and the Case Respondent Jacinto Uy (Uy) is the chairman of Moldex Realty, Inc. (Moldex); the other respondents are its officers and directors. Uy entered into a joint venture agreement with Quintin Bernardo for the inclusion into Moldexs residential subdivision project in Bulacan of two parcels of land, totaling 20,954 square meters, that Bernardo held under two emancipation patents.1 On June 21, 2001 Moldex applied for a license to sell subdivision lots in the project mentioned with the Housing and Land Use Regulatory Board (HLURB)2 but the latter denied the application for failure to comply with the requirements.3

On July 2, 2002 petitioner Victoria P. Cabral filed a criminal complaint4 against respondents Uy, et al. for violation of Section 5 of Presidential Decree (P.D.) 957, alleging that she was the registered owner of the lots subject of Bernardos emancipation patents. She said that prior to the transaction between Bernardo and respondent Uy, the latter offered to acquire the lots from her but she refused because of the pending case for cancellation of the patents that she filed against Bernardo with the Department of Agrarian Reform Adjudication Board. On April 28, 2003 the public prosecutors office filed a criminal information before the Regional Trial Court of Quezon City5 in Criminal Case Q-03-116823 against respondent Uy and the other Moldex officers, namely, respondents Michael Uy, Marilyn O. Uy, Richard O. Uy, Rey Ignacio Diaz, Jose Po, and Juanito Malto for selling subdivision lots to a certain Josefa C. Yanga without a license from the HLURB.6 Subsequently, however, or on September 17, 2003 the HLURB issued Moldex the license to sell that it needed.7 Respondents Uy, et al. filed a motion to quash the information and motion for judicial determination of probable cause8 claiming that the office of the prosecutor and the trial court had no jurisdiction over violations of P.D. 957, such jurisdiction being with the HLURB alone and, granting that they could take cognizance of the case, respondents Uy, et al. could not be held criminally liable because the HLURB subsequently issued them a license to sell.9 On May 20, 2004 the trial court denied the motions of respondents Uy, et al.10 On June 15, 2005 it also denied their motion for reconsideration,11 prompting them to appeal to the Court of Appeals (CA) in CA-G.R. SP 90468, which court granted their prayer for the issuance of a temporary restraining order.12 On June 2, 2006 the latter court rendered a decision,13 upholding the trial courts jurisdiction over the subject case but ordaining its dismissal, given that the subsequent issuance of a license to sell extinguished respondents Uy, et al.s criminal liability. Petitioner Cabral filed a motion for reconsideration but the appeals court denied14 it, hence, this petition. Required to comment on the petition, the Office of the Solicitor General joined the petitioner in asking this Court to reverse the CAs decision. The Issues Presented The issues presented in this case15 are: 1. Whether or not the office of the public prosecutor and the trial court have jurisdiction over criminal actions for violation of P.D. 957; and 2. Whether or not HLURBs subsequent issuance to Moldex of a license to sell extinguished respondents Uy, et al.s criminal liability for selling subdivision lots prior to the issuance of such license. The Courts Rulings First. Conformably with what this Court ruled in Sia v. People,16 the CA correctly upheld the public prosecutors authority to file the criminal information for violation of P.D. 957 and the trial courts power to hear and adjudicate the action, the penalty being a P20,000.00 fine and imprisonment of not exceeding 10 years or both such fine and imprisonment. This penalty brings the offense within the jurisdiction of that court.

Second. P.D. 957 has been enacted to regulate for the public good the sale of subdivision lots and condominiums. Its Section 5 prohibits such sale without the prior issuance of an HLURB license17 and punishes those who engage in such selling.18 The crime is regarded as malum prohibitum since P.D. 957 is a special law designed to protect the welfare of society and ensure the carrying on of the purposes of civil life.19 It is the commission of that act as defined by law, not its character or effect that determines whether or not its provision has been violated. Malice or criminal intent is immaterial in such crime.20 In crimes that are mala prohibita, the forbidden acts might not be inherently immoral. Still they are punished because the law says they are forbidden. With these crimes, the sole issue is whether the law has been violated.211avvphi1 Since the Information in this case sufficiently alleged that Moldex sold a subdivision lot when it did not yet have a license to do so, the crime was done. Assuming the allegations to be true, the subsequent issuance of the license and the invocation of good faith cannot reach back to erase the offense and extinguish respondents Uy, et al.s criminal liability. In ruling that respondents criminal liability has been extinguished, the CA relied on Co Chien v. Sta. Lucia Realty and Development, Inc.22 But Co Chien is a case for refund of down payment and nullification of the contract of sale between the buyer and the developer whose license was issued only after the execution of the contract. This Court refused to void the transaction in the case because the absence of the license was not in itself sufficient to invalidate the contract. And while there was no fraud on the part of the developer, the HLURB directed it to pay an administrative fine of P20,000.00 for selling the lot without the necessary license. This only shows that the subsequent issuance of a license, as in this case, will not extinguish the liability of the developer for violation of Section 5 of P.D. 957. WHEREFORE, the Court GRANTS the petition and REVERSES and SETS ASIDE the June 2, 2006 Decision and the August 22, 2006 Resolution of the Court of Appeals in CA-G.R. SP 90468. The Court REINSTATES the May 20, 2004 Order of the Regional Trial Court of Quezon City in Criminal Case Q-03-116823, which denied respondents omnibus motion to quash and motion for judicial determination of probable cause. SO ORDERED.