Crimrev2 Cases Set 1.docx

G.R. No. 162808

April 22, 2008

FELICIANO GALVANTE, petitioner, vs. HON. ORLANDO C. CASIMIRO, Deputy Ombudsman for the Military and Other Law Enforcement Offices, BIENVENIDO C. BLANCAFLOR, Director, DENNIS L. GARCIA, Graft Investigation and Prosecution Officer, SPO4 RAMIL AVENIDO, PO1 EDDIE DEGRAN, PO1 VALENTINO RUFANO, and PO1 FEDERICO BALOLOT,respondents. DECISION AUSTRIA-MARTINEZ, J.: Assailed herein by Petition for Certiorari and Mandamus under Rule 65 of the Rules of Court are the October 30, 2003 Resolution1 of the Office of the Deputy Ombudsman for the Military and Other Law Enforcement Offices - Office of the Ombudsman (Ombudsman) which dismissed for lack of probable cause the criminal complaint, docketed as OMB-P-C-02-0109-B, filed by Feliciano Galvante2 (petitioner) against SPO4 Benjamin Conde, PO1 Ramil Avenido, PO1 Eddie Degran, PO1 Valentino Rufano, and PO1 Federico Balolot (private respondents) for arbitrary detention, illegal search and grave threats; and the January 20, 2004 Ombudsman Order3 which denied his motion for reconsideration. The facts are of record. In the afternoon of May 14, 2001 at Sitio Cahi-an, Kapatungan, Trento, Agusan del Sur, private respondents confiscated from petitioner one colt pistol super .38 automatic with serial no. 67973, one short magazine, and nine super .38 live ammunitions.4 The confiscated materials were covered by an expired Memorandum Receipt dated September 2, 1999.5 Consequently, the Assistant Provincial Prosecutor filed against petitioner an Information 6 for Illegal Possession of Firearms and Ammunitions in Relation to Commission on Elections (Comelec) Resolution No. 3258, docketed as Criminal Case No. 5047, before the Regional Trial Court (RTC), Prosperidad, Agusan del Sur. Pending resolution of Criminal Case No. 5047, petitioner filed against private respondents an administrative case, docketed as Administrative Case No. IASOB-020007 for Grave Misconduct, before the Internal Affairs Service (IAS), Region XIII, Department of Interior and Local Government (DILG);7 and a criminal case, docketed as OMB-P-C-02-0109-B for Arbitrary Detention, Illegal Search and Grave Threats, before the Ombudsman.8 In the June 21, 2001 Affidavit-Complaint he filed in both cases, petitioner narrated how, on May 14, 2001, private respondents aimed their long firearms at him, arbitrarily searched his vehicle and put him in detention, thus: 1. That sometime on May 14, 2001 I left my house at around 1:00 o'clock in the afternoon after having lunch for Sitio Cahi-an, Brgy. Kapatungan, Trento, Agusan del Sur to meet retired police Percival Plaza and inquire about the retirement procedure for policemen; 2. That upon arrival at the house of retired police Percival Plaza, together with Lorenzo Sanoria, Delfin Ramirez and Pedro Ramas who asked for a ride from the highway in going to Sitio Cahi-an, I immediately went down of the jeep but before I could call Mr. Plaza, four policemen in uniform blocked my way; 3. That the four policemen were [private respondents] PO1 Romil Avenido PNP, PO1 Valentino Rufano, PNP both member of 142nd Company, Regional Mobile Group and PO1 Eddie Degran PNP and PO1 Federico Balolot PNP members of 1403 Prov'l Mobile Group, all of Bunawan Brook, Bunawan, Agusan del Sur; who all pointed their long firearms ready to fire [at] me, having heard the sound of the release of the safety lock;

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4. That raising my arms, I heard [private respondent] PO1 Avenido saying, "ANG IMONG PUSIL, IHATAG" which means "Give me your firearm," to which I answered, "WALA MAN KO'Y PUSIL" translated as "I have no firearm," showing my waistline when I raised my T-shirt; 5. That my other companions on the jeep also went down and raised their arms and showed their waistline when the same policemen and a person in civilian attire holding an armalite also pointed their firearms to them to which Mr. Percival Plaza who came down from his house told them not to harass me as I am also a former police officer but they did not heed Mr. Plaza's statements; 6. That while we were raising our arms [private respondent] SPO4 Benjamin Conde, Jr. went near my owner type jeep and conducted a search. To which I asked them if they have any search warrant; 7. That after a while they saw my super .38 pistol under the floormat of my jeep and asked me of the MR of the firearm but due to fear that their long arms were still pointed to us, I searched my wallet and gave the asked [sic] document; 8. That immediately the policemen left me and my companions without saying anything bringing with them the firearm; 9. That at about 2:30 p.m., I left Mr. Percival's house and went to Trento Police Station where I saw a person in civilian attire with a revolver tucked on his waist, to which I asked the police officers including those who searched my jeep to apprehend him also; 10. That nobody among the policemen at the station made a move to apprehend the armed civilian person so I went to the office of Police Chief Rocacorba who immediately called the armed civilian to his office and when already inside his office, the disarming was done; 11. That after the disarming of the civilian I was put to jail with the said person by Police Chief Rocacorba and was released only at 4:00 o'clock in the afternoon of May 16, 2001 after posting a bailbond; 12. That I caused the execution of this document for the purpose of filing cases of Illegal Search, Grave Misconduct and Abuse of Authority against SPO4 Benjamin Conde, Jr., of Trento Police Station; PO1 Ramil Avenido, PO1 Velantino Rufano, PO1 Federico Balolot and PO1 Eddie Degran.9 Petitioner also submitted the Joint Affidavit10 of his witnesses, Lorenzo Sanoria and Percival Plaza. Private respondent Conde filed a Counter-Affidavit dated March 20, 2002, where he interposed the following defenses: First, he had nothing to do with the detention of petitioner as it was Chief of Police/Officer-in-Charge Police Inspector Dioscoro Mehos Rocacorba who ordered the detention. Petitioner himself admitted this fact in his own Complaint-Affidavit;11 and Second, he denies searching petitioner's vehicle,12 but admits that even though he was not armed with a warrant, he searched the person of petitioner as the latter, in plain view, was committing a violation of Comelec Resolutions No. 3258 and No. 3328 by carrying a firearm in his person. Private respondents Avenido, Degran, Rufano and Balolot filed their Joint-Affidavit dated March 25, 2002, which contradicts the statements of private respondent Conde, viz: 1. that we executed a joint counter-affidavit dated August 28, 2001 where we stated among other things, that "we saw Feleciano "Nani" Galvante armed with a handgun/pistol tucked on his waist;"

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2. that this statement is not accurate because the truth of the matter is that the said handgun was taken by SPO4 BENJAMIN CONDE, JR., who was acting as our team leader during the May 14, 2001 Elections, from the jeep of Mr. Galvante after searching the same; and 3. that we noticed the aforementioned discrepancy in our affidavit dated August 28, 2001 after we have already affixed our signatures thereon.13 Consequently, petitioner filed an Affidavit of Desistance dated March 25, 2002 with both the IAS and Ombudsman, absolving private respondents Avenido, Degran, Rufano and Balolot, but maintaining that private respondent Conde alone be prosecuted in both administrative and criminal cases.14 On July 17, 2002, the IAS issued a Decision in Administrative Case No. IASOB-020007, finding all private respondents guilty of grave misconduct but penalized them with suspension only. The IAS noted however that private respondents were merely being "[enthusiastic] in the conduct of the arrest in line of duty." 15 Meanwhile, in Criminal Case No. 5047, petitioner filed with the RTC a Motion for Preliminary Investigation and to Hold in Abeyance the Issuance of or Recall the Warrant of Arrest. 16 The RTC granted the same in an Order17dated August 17, 2001. Upon reinvestigation, Prosecutor II Eliseo Diaz, Jr. filed a "Reinvestigation with Motion to Dismiss" dated November 22, 2001, recommending the dismissal of Criminal Case No. 5047 on the ground that "the action of the policemen who conducted the warrantless search in spite of the absence of any circumstances justifying the same intruded into the privacy of the accused and the security of his property." 18 Officer-in-Charge Prosecutor II Victoriano Pag-ong approved said recommendation.19 The RTC granted the prosecution's motion to dismiss in an Order20 dated January 16, 2003. Apparently unaware of what transpired in Criminal Case No. 5047, Ombudsman Investigation & Prosecution Officer Dennis L. Garcia issued in OMB-P-C-02-0109-B, the October 30, 2003 Resolution, to wit: After a careful evaluation, the undersigned prosecutor finds no probable cause for any of the offenses charged against above-named respondents. The allegations of the complainant failed to establish the factual basis of the complaint, it appearing from the records that the incident stemmed from a valid warrantless arrest. The subsequent execution of an affidavit of desistance by the complainant rendered the complaint even more uncertain and subject to doubt, especially so since it merely exculpated some but not all of the respondents. These circumstances, coupled with the presumption of regularity in the performance of duty, negates any criminal liability on the part of the respondents. WHEREFORE, premises considered, it is hereby recommended that the above-captioned case be dismissed for lack of probable cause.21 (Emphasis supplied) Upon the recommendation of Director Bienvenido C. Blancaflor, Deputy Ombudsman for the Military Orlando C. Casimiro (Deputy Ombudsman) approved the October 30, 2003 Resolution.22 In his Motion for Reconsideration,23 petitioner called the attention of the Ombudsman to the earlier IAS Decision, the Reinvestigation with Motion to Dismiss of Prosecutor II Eliseo Diaz, Jr. and the RTC Order, all of which declared the warrantless search conducted by private respondents illegal,24 which are contradicted by the October 30, 2003 Ombudsman Resolution declaring the warrantless search legal. The Ombudsman denied petitioner's motion for reconsideration on the ground that the latter offered "no new evidence or errors of law which would warrant the reversal or modification" 25 of its October 30, 2003 Resolution.

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Petitioner filed the present petition, attributing to Deputy Ombudsman Casimiro, Director Blancaflor and Prosecutor Garcia (public respondents) the following acts of grave abuse of discretion: I. Public respondents acted without or in excess of their jurisdiction and/or with grave abuse of discretion amounting to lack or excess of jurisdiction when, in their Resolution dated October 30, 2003, public respondents found that the incident upon which petitioner's criminal complaint was based stemmed from a valid warrantless arrest and dismissed petitioner's complaint despite the fact that: A. Petitioner has clearly shown that the search conducted by the private respondents was made without a valid warrant, nor does it fall under any of the instances of valid warrantless searches. B. Notwithstanding the absence of a valid warrant, petitioner was arrested and detained by the private respondents. II. Public respondents acted without or in excess of their jurisdiction and/or with grave abuse of discretion amounting to lack or excess of jurisdiction when, in their Order dated January 20, 2004, public respondents denied the petitioner's motion for reconsideration in a capricious, whimsical, despotic and arbitrary manner.26 In its Memorandum,27 the Office of the Solicitor General argued that public respondents acted within the bounds of their discretion in dismissing OMB-P-C-02-0109-B given that private respondents committed no crime in searching petitioner and confiscating his firearm as the former were merely performing their duty of enforcing the law against illegal possession of firearms and the Comelec ban against the carrying of firearms outside of one's residence. Private respondent Conde filed a Comment28 and a Memorandum for himself.29 Private respondents Avenido, Degran, Rufano and Balolot filed their separate Letter-Comment dated June 25, 2004.30 The petition lacks merit. The Constitution vests in the Ombudsman the power to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the corresponding information with the appropriate courts. 31 The Court respects the relative autonomy of the Ombudsman to investigate and prosecute, and refrains from interfering when the latter exercises such powers either directly or through the Deputy Ombudsman,32 except when the same is shown to be tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.33 Grave abuse of discretion is an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act in contemplation of law as when judgment rendered is not based on law and evidence but on caprice, whim and despotism.34 This does not obtain in the present case. It is noted that the criminal complaint which petitioner filed with the Ombudsman charges private respondents with warrantless search, arbitrary detention, and grave threats. The complaint for warrantless search charges no criminal offense. The conduct of a warrantless search is not a criminal act for it is not penalized under the Revised Penal Code (RPC) or any other special law. What the RPC punishes are only two forms of searches: Art. 129. Search warrants maliciously obtained and abuse in the service of those legally obtained. - In addition to the liability attaching to the offender for the commission of any other offense, the penalty ofarresto mayor in its maximum period to prision correccional in its minimum period and a fine not exceedingP1,000.00 pesos shall be imposed upon any public officer or employee who shall procure a search warrant without just cause, or, having legally procured the same, shall exceed his authority or use unnecessary severity in executing the same.

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Art. 130. Searching domicile without witnesses. - The penalty of arresto mayor in its medium and maximum periods shall be imposed upon a public officer or employee who, in cases where a search is proper, shall search the domicile, papers or other belongings of any person, in the absence of the latter, any member of his family, or in their default, without the presence of two witnesses residing in the same locality. Petitioner did not allege any of the elements of the foregoing felonies in his Affidavit-Complaint; rather, he accused private respondents of conducting a search on his vehicle without being armed with a valid warrant. This situation, while lamentable, is not covered by Articles 129 and 130 of the RPC. The remedy of petitioner against the warrantless search conducted on his vehicle is civil,35 under Article 32, in relation to Article 221936 (6) and (10) of the Civil Code, which provides: Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: xxxx (9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures; xxxx The indemnity shall include moral damages. Exemplary damages may also be adjudicated. and/or disciplinary and administrative, under Section 41 of Republic Act No. 6975. 37 To avail of such remedies, petitioner may file against private respondents a complaint for damages with the regular courts38 or an administrative case with the PNP/DILG,39 as petitioner did in Administrative Case No. IASOB-020007, and not a criminal action with the Ombudsman. Public respondents' dismissal of the criminal complaint for illegal search which petitioner filed with the Ombudsman against private respondents was therefore proper, although the reasons public respondents cited for dismissing the complaint are rather off the mark because they relied solely on the finding that the warrantless search conducted by private respondents was valid and that the Affidavit of Desistance which petitioner executed cast doubt on the veracity of his complaint.40 Public respondents completely overlooked the fact that the criminal complaint was not cognizable by the Ombudsman as illegal search is not a criminal offense. Nevertheless, the result achieved is the same: the dismissal of a groundless criminal complaint for illegal search which is not an offense under the RPC. Thus, the Court need not resolve the issue of whether or not public respondents erred in their finding on the validity of the search for that issue is completely hypothetical under the circumstance. The criminal complaint for abitrary detention was likewise properly dismissed by public respondents. To sustain a criminal charge for arbitrary detention, it must be shown that (a) the offender is a public officer or employee, (b) the offender detained the complainant, and (c) the detention is without legal grounds.41 The second element was not alleged by petitioner in his Affidavit-Complaint. As pointed out by private respondent Conde in his Comment42 and Memorandum,43 petitioner himself identified in his Affidavit-Complaint that it was Police Chief Rocacorba who caused his detention. Nowhere in said affidavit did petitioner allege that private respondents effected his detention, or were in any other way involved in it.44 There was, therefore, no factual or legal basis to sustain the criminal charge for arbitrary detention against private respondents. Finally, on the criminal complaint for grave threats, the Solicitor General aptly pointed out that the same is based merely on petitioner's bare allegation that private respondents aimed their firearms at him.45 Such bare allegation stands no chance against the well-entrenched rule applicable in this case, that public officers enjoy a presumption of regularity in the performance of their official 5

function.46 The IAS itself observed that private respondents may have been carried away by their "enthusiasm in the conduct of the arrest in line of duty." 47 Petitioner expressed the same view when, in his Affidavit of Desistance, he accepted that private respondents may have been merely following orders when they pointed their long firearms at him. All said, public respondents did not act with grave abuse of discretion in dismissing the criminal complaint against private respondents. WHEREFORE, the petition is DENIED. No costs. SO ORDERED. G.R. No. 179080

November 26, 2014

EDIGARDO GEROCHE, ROBERTO GARDE and GENEROSO MARFIL alias "TAPOL", Petitioners, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION PERALTA, J.: This is an appeal from the Decision1 dated November 18, 2005 and Resolution2 dated June 19, 2007 of the Court of Appeals (CA) in G.R. CR No. 26418, which set aside the November 15, 2001 Decision3 of the Regional Trial Court (RTC), Branch 17, Kidapawan City, Cotabato. Petitioners Edigardo Geroche, Roberto Garde and Generoso Marfil alias "Tapol" were charged with the crime of Violation of Domicile under Article 128 of the Revised Penal Code (RPC). 4 The Information dated May 3, 1990 reads: The undersigned accuses EDIGARDO GEROCHE, ROBERTO GARDE AND GENEROSO MARFIL Alias "TAPOL" of the crime of Violation of Domicile, committed as follows: That at about 10:00 o’clock in the evening of May 14, 1989, at Sitio New Lantawan, Barangay Greenhills, Municipality of President Roxas, Province of Cotabato, Philippines, the above-named accused EDIGARDO GEROCHE, being a Barangay Captain and the rest being CAFGUs, hence, persons inauthority, conspiring, confederating and mutually helping one another, armed with garand rifles, did then and there, wilfully, unlawfully and feloniously, without proper judicial order, entered the house of ROBERTO MALLO by forcibly breaking the door of said house against the will of the occupants thereof, search the effects of the house without the previous consent of the owner and then mauled one of the occupant BARILIANO LIMBAG inflicting injuries to the latter. CONTRARY TO LAW.5 During the arraignment on November5, 1990, all the petitioners pleaded not guilty.6 Thereafter, trial ensued. Baleriano Limbag (Baleriano) testified that the crime happened around 10:00 o’clock in the evening of May 14, 1989 inside the house which he already bought from Roberto Mallo. He roused from sleep when petitioners, who were not armed with search warrant, suddenly entered the house by destroying the main door. The petitioners mauled him, striking with a garand rifle, which caused his injuries. They looked for firearms but instead found and took away his airgun. Roberto Limbag, Baleriano’s nephew who was living with him, witnessed the whole incident and corroborated his testimony.

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Aside from presenting SPO4 Felomino Calfoforo, the Subpoena and Warrant Officer of President Roxas Police Station who testified on the police blotter, Dr. Antonio Cabrera also took the witness stand for the prosecution. Essentially, he affirmed the medical certificate that he issued. His findings indicated that Baleriano suffered hematoma on the left side of the nose, back portion of the body at the level of the hip region, and back portion at the right side of the scapular region as well as abrasion on the right side of the breast and left side of the body at the axilliary region. 7 Dr. Cabrera opined that the injuries inflicted would heal from seven to ten days. 8 For the defense, petitioners denied the crime charged, declaring in unison that they were in their respective houses the entire evening of May 14, 1989. They alleged, however, that the night before, on May 13, 1989, they conducted a roving footpatrol, together with other barangay officials, due to the rampant cattle rustling in the area. At the time, they recovered a stolen carabao owned by a certain Francisco Pongasi 9 from three unidentified persons who managed to escape. On November 15, 2001, the trial court found petitioners guilty beyond reasonable doubt of the crime of Less Serious Physical Injuries under the Article 265 of the RPC. They were sentenced to suffer the penalty of imprisonment of arresto mayor maximum, that is, four (4) months and one (1) day to six (6) months. According to the RTC, the prosecution failed to prove that petitioners are public officers, which is an essential element of Article 128 of the RPC. It held: The prosecution who has that onus probandifailed to prove one of the essential elements of the crime; on the issue of whether or not all the accused were public officers; while it is true that accused were named CVO’s and the other as a barangay captain and that even if the same were admitted by them during their testimony in open court, such an admission is not enough to prove that they were public officers; it is for the prosecution to prove by clear and convincing evidence other than that of the testimony of witnesses that they werein fact public officers; there exist a doubt of whether or not all the accused were in fact and in truth public officers; doubts should be ruled in favorof the accused; that on this lone and essential element the crime charged as violation of domicile is ruled out; that degree of moral certainty of the crime charged was not established and proved by convincing evidence of guilt beyond reasonable doubt; x x x.10 Petitioners elevated the case to the CA, which, on November 18, 2005, set aside the trial court’s judgment. While it agreed with both parties that petitioners should not be convictedfor Less Serious Physical Injuries, the CA still ruled that they are guilty of Violation of Domicile considering their judicial admissions that they were barangay captain (in the case of Geroche) and part of the Citizen Armed Forces Geographical Unit (in the case of Garde and Marfil). The dispositive portion of the assailed Decision states: WHEREFORE, pursuant to applicable law and jurisprudence on the matter and the evidence on hand, the appealed decision is hereby SET ASIDE and a new one entered finding the accusedpetitioners GUILTY beyond reasonable doubt of the crime of Violation of Domicile under Article 128 of the Revised Penal Code and sentencing them to an indeterminate penalty of Four (4) Months, One (1) Day of arresto mayor maximum to Six (6) Months and One (1) Day of prision [correccional] minimum with the accessory penalty of suspension from public office and from the right to follow a professionor calling pursuant to Article 43 of the Revised Penal Code. SO ORDERED.11 Petitioners’ motion for reconsideration was denied; hence, this petition. They argue that there is double jeopardy since the trial court already acquitted them of Violation of Domicile and such judgment, being now final and executory, is res judicata. Petitioners insist that their appeal before the CA is limited to their conviction for the crime of Less Serious Physical Injuries, focusing their arguments and defense for acquittal from said crime, and that the CA violated their constitutional right to due process when it convicted them for Violation of Domicile. We deny. An appeal in a criminal case opensthe entire case for review on any question including one not raised by the parties.12 When an accused appeals from the sentence of the trial court,he or she waives the constitutional safeguard against double jeopardy and throws the whole case open to the review of the appellate court, which is then called upon to render such judgment as law and justice dictate.13 An appeal confers upon the appellate court jurisdiction to examine the records, revise the judgment 7

appealed from, increase (or reduce) the penalty, and cite the proper provision of the penal law.14 The appellate court may, and generally does,look into the entire records to ensure that no fact of weight or substance has been overlooked, misapprehended, or misapplied by the trial court.15 Thus, when petitioners appealed the trial court’s judgment of conviction for Less Serious Physical Injuries, they are deemed to have abandoned their right to invoke the prohibition on doublejeopardy since it becomes the duty of the appellate court to correct errors as may be found in the assailed judgment. Petitioners could not have been placed twice in jeopardy when the CA set aside the ruling of the RTC by finding them guilty of Violation of Domicile as charged in the Information instead of Less Serious Physical Injuries. The Court adopts the findings of factand conclusions of law of the CA. In their testimony before the open court as well as in the pleadings they filed, neither Geroche denied that hewas a barangay captain nor Garde and Marfil refuted that they were CAFGU members. In holding such positions, they are considered as public officers/employees.16 As to the penalty imposed by the CA, however, We modify the same. Under Article 128 of the RPC, the penalty shall be prision correccionalin its medium and maximum periods (two [2] years, four [4] months and one [1] day to six [6] years) if Violation of Domicile be committed at nighttime or if any papers or effects not constituting evidence of a crime be not returned immediately after the search made by the offender. In this case, petitioners barged in the house of Baleriano while they were sleeping at night and, in addition, they took away with them his airgun. In imposing a prison sentence for an offense punished by the RPC, the Indeterminate Sentence Law17 requires courts to impose upon the accused an indeterminate sentence. The maximum term of the prison sentence shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code.1âwphi1 Yet the penalty prescribed by Article 128 of the RPC is composed of only two, not three, periods. In which case, Article 65 of the same Code requires the division into three equal portions the time included in the penalty, forming one period of each of the three portions. Applying the provision, the minimum, medium and maximum periods of the penalty prescribed by Article 128 are: Minimum – 2 years, 4 months and 1 day to 3 years, 6 months and 20 days Medium – 3 years, 6 months and 21 days to 4 years, 9 months and 10 days Maximum – 4 years, 9 months and 11 days to 6 years Thus, applying in this case, the maximum term should be within the medium period or from 3 years, 6 months and 21 days to 4 years, 9 months and 10 days, in light of the provisions of Article 64 of the Revised Penal Code that if there are no other mitigating or aggravating circumstances attending the commission of the crime, the penalty shall be imposed in its medium period. On the other hand, the minimum term shall be within the range of the penalty next lower to that prescribed by the RPC for the crime. The penalty next lower to that prescribed by Article 128 is arresto mayor in its maximum period to prision correccional in its minimum period (or 4 months and 1 day to 2 years and 4 months). The foregoing considered, in view of the attending circumstances in this case, the Court hereby sentences the petitioners to suffer the indeterminate penalty from two (2) years and four (4) months of prision correccional, as minimum, to four ( 4) years, nine (9) months and ten (10) days of prision correccional, as maximum. WHEREFORE, the Court AFFIRMS the Decision dated November 18, 2005 and Resolution dated June 19, 2007 of the Court of Appeals in CAG.R. CR No. 26418 finding petitioners Edigardo Geroche, Roberto Garde and Generoso Marfil alias "Tapol" guilty beyond reasonable doubt of Violation of Domicile, penalized under Article 128 of the Revised Penal Code, with the MODIFICATION that the penalty that should be imposed is an indeterminate sentence from two (2) years and four (4) months of prision correccional, as minimum, to four (4) years, nine (9) months and ten (10) days of prision correccional, as maximum.

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SO ORDERED. G.R. Nos. 172070-72

June 1, 2007

VICENTE P. LADLAD, NATHANAEL S. SANTIAGO, RANDALL B. ECHANIS, and REY CLARO C. CASAMBRE,Petitioners, vs. SENIOR STATE PROSECUTOR EMMANUEL Y. VELASCO, DECISION CARPIO, J.: The Case These are consolidated petitions for the writs of prohibition and certiorari to enjoin petitioners’ prosecution for Rebellion and to set aside the rulings of the Department of Justice (DOJ) and the Regional Trial Court of Makati City (RTC Makati) on the investigation and prosecution of petitioners’ cases. The Facts Petitioner in G.R. No. 175013, Crispin B. Beltran (Beltran), and petitioners in G.R. Nos. 172074-76, Liza L. Maza (Maza), Joel G. Virador (Virador), Saturnino C. Ocampo (Ocampo), Teodoro A. Casiño (Casiño), and Rafael V. Mariano (Mariano),1 are members of the House of Representatives representing various party-list groups.2Petitioners in G.R. Nos. 172070-72 are private individuals. Petitioners all face charges for Rebellion under Article 134 in relation to Article 135 of the Revised Penal Code in two criminal cases pending with the RTC Makati. G.R. No. 175013 (The Beltran Petition) Following the issuance by President Gloria Macapagal-Arroyo of Presidential Proclamation No. 1017 on 24 February 2006 declaring a "State of National Emergency," police officers 3 arrested Beltran on 25 February 2006, while he was en route to Marilao, Bulacan, and detained him in Camp Crame, Quezon City. Beltran was arrested without a warrant and the arresting officers did not inform Beltran of the crime for which he was arrested. On that evening, Beltran was subjected to an inquest at the Quezon City Hall of Justice for Inciting to Sedition under Article 142 of the Revised Penal Code based on a speech Beltran allegedly gave during a rally in Quezon City on 24 February 2006, on the occasion of the 20th anniversary of the EDSA Revolution. The inquest was based on the joint affidavit of Beltran’s arresting officers who claimed to have been present at the rally. The inquest prosecutor4indicted Beltran and filed the corresponding Information with the Metropolitan Trial Court of Quezon City (MeTC).5 The authorities brought back Beltran to Camp Crame where, on 27 February 2006, he was subjected to a second inquest, with 1st Lt. Lawrence San Juan (San Juan), this time for Rebellion. A panel of State prosecutors6 from the DOJ conducted this second inquest. The inquest was based on two letters, both dated 27 February 2006, of Yolanda Tanigue (Tanigue) and of Rodolfo Mendoza (Mendoza). Tanigue is the Acting Executive Officer of the Criminal Investigation and Detection Group (CIDG), Philippine National Police (PNP), while Mendoza is the Acting Deputy Director of the CIDG. The letters referred to the DOJ for appropriate action the results of the CIDG’s investigation implicating Beltran, the petitioners in G.R. Nos. 172074-76, San Juan, and several others as "leaders and promoters" of an alleged foiled plot to overthrow the Arroyo government. The plot was supposed to be carried out jointly by members of the Communist Party of the Philippines (CPP) and the Makabayang Kawal ng Pilipinas (MKP), which have formed a "tactical alliance." On 27 February 2006, the DOJ panel of prosecutors issued a Resolution finding probable cause to indict Beltran and San Juan as "leaders/promoters" of Rebellion. The panel then filed an Information with the RTC Makati. The Information alleged that Beltran, San Juan, and other individuals "conspiring and confederating with each other, x x x, did then and there willfully, unlawfully, and 9

feloniously form a tactical alliance between the CPP/NPA, renamed as Partidong Komunista ng Pilipinas (PKP) and its armed regular members as Katipunan ng Anak ng Bayan (KAB) with the Makabayang Kawal ng Pilipinas (MKP) and thereby rise publicly and take up arms against the duly constituted government, x x x."7 The Information, docketed as Criminal Case No. 06-452, was raffled to Branch 137 under Presiding Judge Jenny Lind R. Aldecoa-Delorino (Judge Delorino). Beltran moved that Branch 137 make a judicial determination of probable cause against him. 8 Before the motion could be resolved, Judge Delorino recused herself from the case which was re-raffled to Branch 146 under Judge Encarnacion Jaja-Moya (Judge Moya). In its Order dated 31 May 2006, Branch 146 sustained the finding of probable cause against Beltran.9 Beltran sought reconsideration but Judge Moya also inhibited herself from the case without resolving Beltran’s motion. Judge Elmo M. Alameda of Branch 150, to whom the case was reraffled, issued an Order on 29 August 2006 denying Beltran’s motion. Hence, the petition in G.R. No. 175013 to set aside the Orders dated 31 May 2006 and 29 August 2006 and to enjoin Beltran’s prosecution. In his Comment to the petition, the Solicitor General claims that Beltran’s inquest for Rebellion was valid and that the RTC Makati correctly found probable cause to try Beltran for such felony. G.R. Nos. 172070-72 and 172074-76 (The Maza and Ladlad Petitions) Based on Tanigue and Mendoza’s letters, the DOJ sent subpoenas to petitioners on 6 March 2006 requiring them to appear at the DOJ Office on 13 March 2006 "to get copies of the complaint and its attachment." Prior to their receipt of the subpoenas, petitioners had quartered themselves inside the House of Representatives building for fear of being subjected to warrantless arrest. During the preliminary investigation on 13 March 2006, the counsel for the CIDG presented a masked man, later identified as Jaime Fuentes (Fuentes), who claimed to be an eyewitness against petitioners. Fuentes subscribed to his affidavit before respondent prosecutor Emmanuel Velasco who then gave copies of the affidavit to media members present during the proceedings. The panel of prosecutors10 gave petitioners 10 days within which to file their counter-affidavits. Petitioners were furnished the complete copies of documents supporting the CIDG’s letters only on 17 March 2006. Petitioners moved for the inhibition of the members of the prosecution panel for lack of impartiality and independence, considering the political milieu under which petitioners were investigated, the statements that the President and the Secretary of Justice made to the media regarding petitioners’ case,11 and the manner in which the prosecution panel conducted the preliminary investigation. The DOJ panel of prosecutors denied petitioners’ motion on 22 March 2006. Petitioners sought reconsideration and additionally prayed for the dismissal of the cases. However, the panel of prosecutors denied petitioners’ motions on 4 April 2006. Petitioners now seek the nullification of the DOJ Orders of 22 March 2006 and 4 April 2006. Acting on petitioners’ prayer for the issuance of an injunctive writ, the Court issued a status quo order on 5 June 2006. Prior to this, however, the panel of prosecutors, on 21 April 2006, issued a Resolution finding probable cause to charge petitioners and 46 others with Rebellion. The prosecutors filed the corresponding Information with Branch 57 of the RTC Makati, docketed as Criminal Case No. 06-944 (later consolidated with Criminal Case No. 06-452 in Branch 146), charging petitioners and their co-accused as "principals, masterminds, [or] heads" of a Rebellion.12 Consequently, the petitioners in G.R. Nos. 172070-72 filed a supplemental petition to enjoin the prosecution of Criminal Case No. 06-944. In his separate Comment to the Maza petition, the Solicitor General submits that the preliminary investigation of petitioners was not tainted with irregularities. The Solicitor General also claims that the filing of Criminal Case No. 06-944 has mooted the Maza petition. The Issues 10

The petitions raise the following issues: 1. In G.R. No. 175013, (a) whether the inquest proceeding against Beltran for Rebellion was valid and (b) whether there is probable cause to indict Beltran for Rebellion; and 2. In G.R. Nos. 172070-72 and 172074-76, whether respondent prosecutors should be enjoined from continuing with the prosecution of Criminal Case No. 06-944.13 The Ruling of the Court We find the petitions meritorious. On the Beltran Petition The Inquest Proceeding against Beltran for Rebellion is Void. Inquest proceedings are proper only when the accused has been lawfully arrested without warrant.14 Section 5, Rule 113 of the Revised Rules of Criminal Procedure provides the instances when such warrantless arrest may be effected, thus: Arrest without warrant; when lawful.— A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and xxxx In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. The joint affidavit of Beltran’s arresting officers15 states that the officers arrested Beltran, without a warrant,16 for Inciting to Sedition, and not for Rebellion. Thus, the inquest prosecutor could only have conducted – as he did conduct – an inquest for Inciting to Sedition and no other. Consequently, when another group of prosecutors subjected Beltran to a second inquest proceeding for Rebellion, they overstepped their authority rendering the second inquest void. None of Beltran’s arresting officers saw Beltran commit, in their presence, the crime of Rebellion. Nor did they have personal knowledge of facts and circumstances that Beltran had just committed Rebellion, sufficient to form probable cause to believe that he had committed Rebellion. What these arresting officers alleged in their affidavit is that they saw and heard Beltran make an allegedly seditious speech on 24 February 2006.17 Indeed, under DOJ Circular No. 61, dated 21 September 1993, the initial duty of the inquest officer is to determine if the arrest of the detained person was made "in accordance with the provisions of paragraphs (a) and (b) of Section 5, Rule 113."18 If the arrest was not properly effected, the inquest officer should proceed under Section 9 of Circular No. 61 which provides: Where Arrest Not Properly Effected.— Should the Inquest Officer find that the arrest was not made in accordance with the Rules, he shall: a) recommend the release of the person arrested or detained; b) note down the disposition on the referral document; c) prepare a brief memorandum indicating the reasons for the action taken; and

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d) forward the same, together with the record of the case, to the City or Provincial Prosecutor for appropriate action. Where the recommendation for the release of the detained person is approved by the City or Provincial Prosecutor but the evidence on hand warrant the conduct of a regular preliminary investigation, the order of release shall be served on the officer having custody of said detainee and shall direct the said officer to serve upon the detainee the subpoena or notice of preliminary investigation, together with the copies of the charge sheet or complaint, affidavit or sworn statements of the complainant and his witnesses and other supporting evidence. (Emphasis supplied) For the failure of Beltran’s panel of inquest prosecutors to comply with Section 7, Rule 112 in relation to Section 5, Rule 113 and DOJ Circular No. 61, we declare Beltran’s inquest void. 19 Beltran would have been entitled to a preliminary investigation had he not asked the trial court to make a judicial determination of probable cause, which effectively took the place of such proceeding. There is No Probable Cause to Indict Beltran for Rebellion. Probable cause is the "existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted."20 To accord respect to the discretion granted to the prosecutor and for reasons of practicality, this Court, as a rule, does not interfere with the prosecutor’s determination of probable cause for otherwise, courts would be swamped with petitions to review the prosecutor’s findings in such investigations. 21However, in the few exceptional cases where the prosecutor abused his discretion by ignoring a clear insufficiency of evidence to support a finding of probable cause, thus denying the accused his right to substantive and procedural due process, we have not hesitated to intervene and exercise our review power under Rule 65 to overturn the prosecutor’s findings.22 This exception holds true here. Rebellion under Article 134 of the Revised Penal Code is committed – [B]y rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, or any body of land, naval, or other armed forces or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives. The elements of the offense are: 1. That there be a (a) public uprising and (b) taking arms against the Government; and 2. That the purpose of the uprising or movement is either – (a) to remove from the allegiance to said Government or its laws: (1) the territory of the Philippines or any part thereof; or (2) any body of land, naval, or other armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives.23 Thus, by its nature, rebellion is a crime of the masses or multitudes involving crowd action done in furtherance of a political end.24 The evidence before the panel of prosecutors who conducted the inquest of Beltran for Rebellion consisted of the affidavits and other documents25 attached to the CIDG letters. We have gone over these documents and find merit in Beltran’s contention that the same are insufficient to show probable cause to indict him for Rebellion. The bulk of the documents consists of affidavits, some of which were sworn before a notary public, executed by members of the military and some civilians. Except for two affidavits, executed by a certain Ruel Escala (Escala), dated 20 Febuary 2006, 26 and 12

Raul Cachuela (Cachuela), dated 23 February 2006,27 none of the affidavits mentions Beltran.28 In his affidavit, Escala recounted that in the afternoon of 20 February 2006, he saw Beltran, Ocampo, Casiño, Maza, Mariano, Virador, and other individuals on board a vehicle which entered a chicken farm in Bucal, Padre Garcia, Batangas and that after the passengers alighted, they were met by another individual who looked like San Juan. For his part, Cachuela stated that he was a former member of the CPP and that (1) he attended the CPP’s "10 th Plenum" in 1992 where he saw Beltran; (2) he took part in criminal activities; and (3) the arms he and the other CPP members used were purchased partly from contributions by Congressional members, like Beltran, who represent party-list groups affiliated with the CPP. The allegations in these affidavits are far from the proof needed to indict Beltran for taking part in an armed public uprising against the government. What these documents prove, at best, is that Beltran was in Bucal, Padre Garcia, Batangas on 20 February 2006 and that 14 years earlier, he was present during the 1992 CPP Plenum. None of the affidavits stated that Beltran committed specific acts of promoting, maintaining, or heading a rebellion as found in the DOJ Resolution of 27 February 2006. None of the affidavits alleged that Beltran is a leader of a rebellion. Beltran’s alleged presence during the 1992 CPP Plenum does not automatically make him a leader of a rebellion. In fact, Cachuela’s affidavit stated that Beltran attended the 1992 CPP Plenum as "Chairman, Kilusang Mayo Uno (KMU)." Assuming that Beltran is a member of the CPP, which Beltran does not acknowledge, mere membership in the CPP does not constitute rebellion. 29 As for the alleged funding of the CPP’s military equipment from Beltran’s congressional funds, Cachuela’s affidavit merely contained a general conclusion without any specific act showing such funding. Cachuela merely alleged that "ang mga ibang mga pondo namin ay galing sa mga party list na naihalal sa Kongreso tulad ng BAYAN MUNA – pimumunuan nila SATUR OCAMPO at CRISPIN BELTRAN, x x x."30Such a general conclusion does not establish probable cause. In his Comment to Beltran’s petition, the Solicitor General points to Fuentes’ affidavit, dated 25 February 2006,31 as basis for the finding of probable cause against Beltran as Fuentes provided details in his statement regarding meetings Beltran and the other petitioners attended in 2005 and 2006 in which plans to overthrow violently the Arroyo government were allegedly discussed, among others. The claim is untenable. Fuentes’ affidavit was not part of the attachments the CIDG referred to the DOJ on 27 February 2006. Thus, the panel of inquest prosecutors did not have Fuentes’ affidavit in their possession when they conducted the Rebellion inquest against Beltran on that day. Indeed, although this affidavit is dated 25 February 2006, the CIDG first presented it only during the preliminary investigation of the other petitioners on 13 March 2006 during which Fuentes subscribed to his statement before respondent prosecutor Velasco. Respondent prosecutors later tried to remedy this fatal defect by motu proprio submitting to Branch 137 of the RTC Makati Fuentes’ affidavit as part of their Comment to Beltran’s motion for judicial determination of probable cause. Such belated submission, a tacit admission of the dearth of evidence against Beltran during the inquest, does not improve the prosecution’s case. Assuming them to be true, what the allegations in Fuentes’ affidavit make out is a case for Conspiracy to Commit Rebellion, punishable under Article 136 of the Revised Penal Code, not Rebellion under Article 134. Attendance in meetings to discuss, among others, plans to bring down a government is a mere preparatory step to commit the acts constituting Rebellion under Article 134. Even the prosecution acknowledged this, since the felony charged in the Information against Beltran and San Juan in Criminal Case No. 06-452 is Conspiracy to Commit Rebellion and not Rebellion. The Information merely alleged that Beltran, San Juan, and others conspired to form a "tactical alliance" to commit Rebellion. Thus, the RTC Makati erred when it nevertheless found probable cause to try Beltran for Rebellion based on the evidence before it. The minutes32 of the 20 February 2006 alleged meeting in Batangas between members of MKP and CPP, including Beltran, also do not detract from our finding.1a\^/phi1.net Nowhere in the minutes was Beltran implicated. While the minutes state that a certain "Cris" attended the alleged meeting, there is no other evidence on record indicating that "Cris" is Beltran. San Juan, from whom the "flash drive" containing the so-called minutes was allegedly taken, denies knowing Beltran. 13

To repeat, none of the affidavits alleges that Beltran is promoting, maintaining, or heading a Rebellion. The Information in Criminal Case No. 06-452 itself does not make such allegation. Thus, even assuming that the Information validly charges Beltran for taking part in a Rebellion, he is entitled to bail as a matter of right since there is no allegation in the Information that he is a leader or promoter of the Rebellion.33 However, the Information in fact merely charges Beltran for "conspiring and confederating" with others in forming a "tactical alliance" to commit rebellion. As worded, the Information does not charge Beltran with Rebellion but with Conspiracy to Commit Rebellion, a bailable offense.34 On the Ladlad and Maza Petitions The Preliminary Investigation was Tainted With Irregularities. As in the determination of probable cause, this Court is similarly loath to enjoin the prosecution of offenses, a practice rooted on public interest as the speedy closure of criminal investigations fosters public safety.35 However, such relief in equity may be granted if, among others, the same is necessary (a) to prevent the use of the strong arm of the law in an oppressive and vindictive manner 36 or (b) to afford adequate protection to constitutional rights.37 The case of the petitioners in G.R. Nos. 17207072 and 172074-76 falls under these exceptions. The procedure for preliminary investigation of offenses punishable by at least four years, two months and one day is outlined in Section 3, Rule 112 of the Revised Rules of Criminal Procedure, thus: Procedure.—The preliminary investigation shall be conducted in the following manner: (a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents. The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense. Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party. (c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.

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(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counteraffidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant. (e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned. The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days. (f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. (Emphasis supplied) Instead of following this procedure scrupulously, as what this Court had mandated in an earlier ruling, "so that the constitutional right to liberty of a potential accused can be protected from any material damage,"38 respondent prosecutors nonchalantly disregarded it. Respondent prosecutors failed to comply with Section 3(a) of Rule 112 which provides that the complaint (which, with its attachment, must be of such number as there are respondents) be accompanied by the affidavits of the complainant and his witnesses, subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public. Respondent prosecutors treated the unsubscribed letters of Tanigue and Mendoza of the CIDG, PNP as complaints39 and accepted the affidavits attached to the letters even though some of them were notarized by a notary public without any showing that a prosecutor or qualified government official was unavailable as required by Section 3(a) of Rule 112. Further, Section 3(b) of Rule 112 mandates that the prosecutor, after receiving the complaint, must determine if there are grounds to continue with the investigation. If there is none, he shall dismiss the case, otherwise he shall "issue a subpoena to the respondents." Here, after receiving the CIDG letters, respondent prosecutors peremptorily issued subpoenas to petitioners requiring them to appear at the DOJ office on 13 March 2006 "to secure copies of the complaints and its attachments." During the investigation, respondent prosecutors allowed the CIDG to present a masked Fuentes who subscribed to an affidavit before respondent prosecutor Velasco. Velasco proceeded to distribute copies of Fuentes’ affidavit not to petitioners or their counsels but to members of the media who covered the proceedings. Respondent prosecutors then required petitioners to submit their counter-affidavits in 10 days. It was only four days later, on 17 March 2006, that petitioners received the complete copy of the attachments to the CIDG letters.1a\^/phi1.net These uncontroverted facts belie respondent prosecutors’ statement in the Order of 22 March 2006 that the preliminary investigation "was done in accordance with the Revised Rules o[f] Criminal Procedure."40 Indeed, by peremptorily issuing the subpoenas to petitioners, tolerating the complainant’s antics during the investigation, and distributing copies of a witness’ affidavit to members of the media knowing that petitioners have not had the opportunity to examine the charges against them, respondent prosecutors not only trivialized the investigation but also lent credence to petitioners’ claim that the entire proceeding was a sham. A preliminary investigation is the crucial sieve in the criminal justice system which spells for an individual the difference between months if not years of agonizing trial and possibly jail term, on the one hand, and peace of mind and liberty, on the other hand. Thus, we have characterized the right to a preliminary investigation as not "a mere formal or technical right" but a "substantive" one, forming part of due process in criminal justice.41 This especially holds true here where the offense charged is punishable by reclusion perpetua and may be non-bailable for those accused as principals. Contrary to the submission of the Solicitor General, respondent prosecutors’ filing of the Information against petitioners on 21 April 2006 with Branch 57 of the RTC Makati does not moot the petitions in G.R. Nos. 172070-72 and 172074-76. Our power to enjoin prosecutions cannot be frustrated by the simple filing of the Information with the trial court.1a\^/phi1.net 15

On Respondent Prosecutors’ Lack of Impartiality We find merit in petitioners’ doubt on respondent prosecutors’ impartiality. Respondent Secretary of Justice, who exercises supervision and control over the panel of prosecutors, stated in an interview on 13 March 2006, the day of the preliminary investigation, that, "We [the DOJ] will just declare probable cause, then it’s up to the [C]ourt to decide x x x." 42 Petitioners raised this issue in their petition,43 but respondents never disputed the veracity of this statement. This clearly shows pre-judgment, a determination to file the Information even in the absence of probable cause. A Final Word The obvious involvement of political considerations in the actuations of respondent Secretary of Justice and respondent prosecutors brings to mind an observation we made in another equally politically charged case. We reiterate what we stated then, if only to emphasize the importance of maintaining the integrity of criminal prosecutions in general and preliminary investigations in particular, thus: [W]e cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that their noble office is being used or prostituted, wittingly or unwittingly, for political ends, or other purposes alien to, or subversive of, the basic and fundamental objective of observing the interest of justice evenhandedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure may be public’s perception of the impartiality of the prosecutor be enhanced.44 1a\^/phi1.net WHEREFORE, we GRANT the petitions. In G.R. No. 175013, we SET ASIDE the Order dated 31 May 2006 of the Regional Trial Court, Makati City, Branch 146 and the Order dated 29 August 2006 of the Regional Trial Court, Makati City, Branch 150. In G.R. Nos. 172070-72 and 172074-76, we SET ASIDE the Orders dated 22 March 2006 and 4 April 2006 issued by respondent prosecutors. We ORDER the Regional Trial Court, Makati City, Branch 150 to DISMISS Criminal Case Nos. 06-452 and 06-944. SO ORDERED. G.R. No. 164007 August 10, 2006 LT. (SG) EUGENE GONZALES, LT. (SG) ANDY TORRATO, LT. (SG) ANTONIO TRILLANES IV, CPT. GARY ALEJANO, LT. (SG) JAMES LAYUG, CPT. GERARDO GAMBALA, CPT. NICANOR FAELDON, LT. (SG) MANUEL CABOCHAN, ENS. ARMAND PONTEJOS, LT. (JG) ARTURO PASCUA, and 1LT. JONNEL SANGGALANG,Petitioners, vs. GEN. NARCISO ABAYA, in his capacity as Chief of Staff of the Armed Forces of the Philippines, and B. GEN. MARIANO M. SARMIENTO, JR., in his capacity as the Judge Advocate General of the Judge Advocate General’s Office (JAGO), Respondents. DECISION SANDOVAL-GUTIERREZ, J.: For our resolution is the Petition for Prohibition (with prayer for a temporary restraining order) filed by the above-named members of the Armed Forces of the Philippines (AFP), herein petitioners, against the AFP Chief of Staff and the Judge Advocate General, respondents. The facts are: On July 26, 2003, President Gloria Macapagal Arroyo received intelligence reports that some members of the AFP, with high-powered weapons, had abandoned their designated places of assignment. Their aim was to destabilize the government. The President then directed the AFP and the Philippine National Police (PNP) to track and arrest them. 16

On July 27, 2003 at around 1:00 a.m., more than 300 heavily armed junior officers and enlisted men of the AFP – mostly from the elite units of the Army’s Scout Rangers and the Navy’s Special Warfare Group – entered the premises of the Oakwood Premier Luxury Apartments on Ayala Avenue, Makati City. They disarmed the security guards and planted explosive devices around the building. Led by Navy Lt. (SG) Antonio Trillanes IV, the troops sported red armbands emblazoned with the emblem of the"Magdalo" faction of the Katipunan. 1 The troops then, through broadcast media, announced their grievances against the administration of President Gloria Macapagal Arroyo, such as the graft and corruption in the military, the illegal sale of arms and ammunition to the "enemies" of the State, and the bombings in Davao City intended to acquire more military assistance from the US government. They declared their withdrawal of support from their Commander-in-Chief and demanded that she resign as President of the Republic. They also called for the resignation of her cabinet members and the top brass of the AFP and PNP. About noontime of the same day, President Arroyo issued Proclamation No. 427 declaring a state of rebellion, followed by General Order No. 4 directing the AFP and PNP to take all necessary measures to suppress the rebellion then taking place in Makati City. She then called the soldiers to surrender their weapons at five o’clock in the afternoon of that same day. In order to avoid a bloody confrontation, the government sent negotiators to dialogue with the soldiers. The aim was to persuade them to peacefully return to the fold of the law. After several hours of negotiation, the government panel succeeded in convincing them to lay down their arms and defuse the explosives placed around the premises of the Oakwood Apartments. Eventually, they returned to their barracks. A total of 321 soldiers, including petitioners herein, surrendered to the authorities. The National Bureau of Investigation (NBI) investigated the incident and recommended that the military personnel involved be charged with coup d’etat defined and penalized under Article 134-A of the Revised Penal Code, as amended. On July 31, 2003, the Chief State Prosecutor of the Department of Justice (DOJ) recommended the filing of the corresponding Information against them. Meanwhile, on August 2, 2003, pursuant to Article 70 of the Articles of War, respondent General Narciso Abaya, then AFP Chief of Staff, ordered the arrest and detention of the soldiers involved in the Oakwood incident and directed the AFP to conduct its own separate investigation. On August 5, 2003, the DOJ filed with the Regional Trial Court (RTC), Makati City an Information for coup d’etat 2against those soldiers, docketed as Criminal Case No. 03-2784 and eventually raffled off to Branch 61, presided by Judge Romeo F. Barza. 3 Subsequently, this case was consolidated with Criminal Case No. 03-2678, involving the other accused, pending before Branch 148 of the RTC, Makati City, presided by Judge Oscar B. Pimentel. On August 13, 2003, the RTC directed the DOJ to conduct a reinvestigation of Criminal Case No. 03-2784. On the same date, respondent Chief of Staff issued Letter Order No. 625 creating a Pre-Trial Investigation Panel tasked to determine the propriety of filing with the military tribunal charges for violations of the Articles of War under Commonwealth Act No. 408, 4 as amended, against the same military personnel. Specifically, the charges are: (a) violation of Article 63 for disrespect toward the President, the Secretary of National Defense, etc., (b) violation of Article 64 for disrespect toward a superior officer, (c) violation of Article 67 for mutiny or sedition, (d) violation of Article 96 for conduct unbecoming an officer and a gentleman, and (e) violation of Article 97 for conduct prejudicial to good order and military discipline. Of the original 321 accused in Criminal Case No. 03-2784, only 243 (including petitioners herein) filed with the RTC, Branch 148 an Omnibus Motion praying that the said trial court assume jurisdiction over all the charges filed with the military tribunal. They invoked Republic Act (R.A.) No. 7055. 5 17

On September 15, 2003, petitioners filed with the Judge Advocate General’s Office (JAGO) a motion praying for the suspension of its proceedings until after the RTC shall have resolved their motion to assume jurisdiction. On October 29, 2003, the Pre-Trial Investigation Panel submitted its Initial Report to the AFP Chief of Staff recommending that the military personnel involved in the Oakwood incident be charged before a general court martial with violations of Articles 63, 64, 67, 96, and 97 of the Articles of War. Meanwhile, on November 11, 2003, the DOJ, after conducting a reinvestigation, found probable cause against only 31 (petitioners included) of the 321 accused in Criminal Case No. 03-2784. Accordingly, the prosecution filed with the RTC an Amended Information. 6 In an Order dated November 14, 2003, the RTC admitted the Amended Information and dropped the charge ofcoup d’etat against the 290 accused. Subsequently, or on December 12, 2003, the Pre-Trial Investigation Panel submitted its Final PreTrial Investigation Report 7 to the JAGO, recommending that, following the "doctrine of absorption," those charged with coup d’etatbefore the RTCshould not be charged before the military tribunal for violation of the Articles of War. For its part, the RTC, on February 11, 2004, issued an Order 8 stating that "all charges before the court martial against the accused…are hereby declared not service-connected, but rather absorbed and in furtherance of the alleged crime of coup d’etat." The trial court then proceeded to hear petitioners’ applications for bail. In the meantime, Colonel Julius A. Magno, in his capacity as officer-in-charge of the JAGO, reviewed the findings of the Pre-Trial Investigation Panel. He recommended that 29 of the officers involved in the Oakwood incident, including petitioners, be prosecuted before a general court martial for violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War. On June 17, 2004, Colonel Magno’s recommendation was approved by the AFP top brass. The AFP Judge Advocate General then directed petitioners to submit their answer to the charge. Instead of complying, they filed with this Court the instant Petition for Prohibition praying that respondents be ordered to desist from charging them with violation of Article 96 of the Articles of War in relation to the Oakwood incident. 9 Petitioners maintain that since the RTC has made a determination in its Order of February 11, 2004 that the offense for violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War is not service-connected, but is absorbed in the crime of coup d’etat, the military tribunal cannot compel them to submit to its jurisdiction. The Solicitor General, representing the respondents, counters that R.A. No. 7055 specifies which offenses covered by the Articles of War areservice-connected. These are violations of Articles 54 to 70, 72 to 92, and 95 to 97. The law provides that violations of these Articles are properly cognizable by the court martial. As the charge against petitioners is violation of Article 96 which, under R.A. No. 7055 is a service-connected offense, then it falls under the jurisdiction of the court martial. Subsequently, petitioners filed with this Court a Supplemental Petition raising the additional issue that the offense charged before the General Court Martial has prescribed. Petitioners alleged therein that during the pendency of their original petition, respondents proceeded with the Pre-Trial Investigation for purposes of charging them with violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War; that the Pre-Trial Investigation Panel then referred the case to the General Court Martial; that "almost two years since the Oakwood incident on July 27, 2003, only petitioner Lt. (SG) Antonio Trillanes was arraigned, and this was done under questionable circumstances;" 10 that in the hearing of July 26, 2005, herein petitioners moved for the dismissal of the case on the ground that they were not arraigned within the prescribed period of two (2) years from the date of the commission of the alleged offense, in violation of Article 38 of the Articles of War; 11 that "the offense charged prescribed on July 25, 2005;" 12 that the General Court Martial 18

ruled, however, that "the prescriptive period shall end only at 12:00 midnight of July 26, 2005;" 13 that "(a)s midnight of July 26, 2005 was approaching and it was becoming apparent that the accused could not be arraigned, the prosecution suddenly changed its position and asserted that 23 of the accused have already been arraigned;" 14 and that petitioners moved for a reconsideration but it was denied by the general court martial in its Order dated September 14, 2005. 15 In his Comment, the Solicitor General prays that the Supplemental Petition be denied for lack of merit. He alleges that "contrary to petitioners’ pretensions, all the accused were duly arraigned on July 13 and 18, 2005." 16 The "(r)ecords show that in the hearing on July 13, 2005, all the 29 accused were present" and, "(o)n that day, Military Prosecutor Captain Karen Ong Jags read the Charges and Specifications from the Charge Sheet in open court (pp. 64, TSN, July 13, 2005)." 17 The sole question for our resolution is whether the petitioners are entitled to the writ of prohibition. There is no dispute that petitioners, being officers of the AFP, are subject to military law. Pursuant to Article 1 (a) of Commonwealth Act No. 408, as amended, otherwise known as the Articles of War, the term "officer" is "construed to refer to a commissioned officer." Article 2 provides: Art. 2. Persons Subject to Military Law. – The following persons are subject to these articles and shall be understood as included in the term "any person subject to military law" or "persons subject to military law," whenever used in these articles: (a) All officers and soldiers in the active service of the Armed Forces of the Philippines or of the Philippine Constabulary, all members of the reserve force, from the dates of their call to active duty and while on such active duty; all trainees undergoing military instructions; and all other persons lawfully called, drafted, or ordered into, or to duty or for training in the said service, from the dates they are required by the terms of the call, draft, or order to obey the same. Upon the other hand, Section 1 of R.A. No. 7055 reads: SEC. 1. Members of the Armed Forces of the Philippines and other persons subject to military law, including members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses penalized under the Revised Penal Code, other special penal laws, or local government ordinances, regardless of whether or not civilians are co-accused, victims, or offended parties, which may be natural or juridical persons, shall be tried by the proper civil court, except when the offense, as determined before arraignment by the civil court, is service-connected, in which case, the offense shall be tried by court-martial, Provided, That the President of the Philippines may, in the interest of justice, order or direct at any time before arraignment that any such crimes or offenses be tried by the proper civil courts. As used in this Section, service-connected crimes or offenses shall be limited to those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of Commonwealth Act No. 408, as amended. In imposing the penalty for such crimes or offenses, the court-martial may take into consideration the penalty prescribed therefor in the Revised Penal Code, other special laws, or local government ordinances. Section 1 of R.A. No. 7055, quoted above, is clear and unambiguous. First, it lays down the general rule that members of the AFP and other persons subject to military law, including members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses penalized under the Revised Penal Code (like coup d’etat), other special penal laws, or local ordinances shall be tried by the proper civil court. Next, it provides the exception to the general rule, i.e., where the civil court, before arraignment, has determined the offense to be service-connected, then the offending soldier shall be tried by a court martial. Lastly, the law states an exception to the exception, i.e., where the President of the Philippines, in the interest of justice, directs before arraignment that any such crimes or offenses be tried by the proper civil court.

19

The second paragraph of the same provision further identifies the "service-connected crimes or offenses" as "limited to those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97" of the Articles of War. Violations of these specified Articles are triable by court martial. This delineates the jurisdiction between the civil courts and the court martial over crimes or offenses committed by military personnel. Such delineation of jurisdiction by R.A. No. 7055 is necessary to preserve the peculiar nature of military justice system over military personnel charged with service-connected offenses. The military justice system is disciplinary in nature, aimed at achieving the highest form of discipline in order to ensure the highest degree of military efficiency. 18 Military law is established not merely to enforce discipline in times of war, but also to preserve the tranquility and security of the State in time of peace; for there is nothing more dangerous to the public peace and safety than a licentious and undisciplined military body. 19 The administration of military justice has been universally practiced. Since time immemorial, all the armies in almost all countries of the world look upon the power of military law and its administration as the most effective means of enforcing discipline. For this reason, the court martial has become invariably an indispensable part of any organized armed forces, it being the most potent agency in enforcing discipline both in peace and in war. 20 Here, petitioners are charged for violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War before the court martial, thus: All persons subject to military law, did on or about 27 July 2003 at Oakwood Hotel, Makati City, Metro Manila, willfully, unlawfully and feloniously violate their solemn oath as officers to defend the Constitution, the law and the duly-constituted authorities and abused their constitutional duty to protect the people and the State by, among others, attempting to oust the incumbent dulyelected and legitimate President by force and violence, seriously disturbing the peace and tranquility of the people and the nation they are sworn to protect, thereby causing dishonor and disrespect to the military profession, conduct unbecoming an officer and a gentleman, in violation of AW 96 of the Articles of War. CONTRARY TO LAW. (Underscoring ours) Article 96 of the Articles of War 21 provides: ART. 96. Conduct Unbecoming an Officer and Gentleman. – Any officer, member of the Nurse Corps, cadet, flying cadet, or probationary second lieutenant, who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service. (Underscoring ours) We hold that the offense for violation of Article 96 of the Articles of War is service-connected. This is expressly provided in Section 1 (second paragraph) of R.A. No. 7055. It bears stressing that the charge against the petitioners concerns the alleged violation of their solemn oath as officers to defend the Constitution and the duly-constituted authorities.Such violation allegedly caused dishonor and disrespect to the military profession. In short, the charge has a bearing on their professional conduct or behavior as military officers. Equally indicative of the "serviceconnected" nature of the offense is the penalty prescribed for the same – dismissal from the service – imposable only by the military court.Such penalty is purely disciplinary in character, evidently intended to cleanse the military profession of misfits and to preserve the stringent standard of military discipline. Obviously, there is no merit in petitioners’ argument that they can no longer be charged before the court martial for violation of Article 96 of the Articles of War because the same has been declared by the RTC in its Order of February 11, 2004 as "not service-connected, but rather absorbed and in furtherance of the alleged crime of coup d’etat," hence, triable by said court (RTC). The RTC, in making such declaration, practically amended the law which expressly vests in the court martial the jurisdiction over "service-connected crimes or offenses." What the law has conferred the court should not take away. It is only the Constitution or the law that bestows jurisdiction on the court, tribunal, body or officer over the subject matter or nature of an action which can do so. 22 And it is only through a constitutional amendment or legislative enactment that such act can be done. The first and fundamental duty of the courts is merely to apply the law "as they find it, not as they like it to 20

be." 23 Evidently, such declaration by the RTC constitutes grave abuse of discretion tantamount to lack or excess of jurisdiction and is, therefore, void. In Navales v. Abaya., 24 this Court, through Mr. Justice Romeo J. Callejo, Sr., held: We agree with the respondents that the sweeping declaration made by the RTC (Branch 148) in the dispositive portion of its Order dated February 11, 2004 that all charges before the court-martial against the accused were not service-connected, but absorbed and in furtherance of the crime of coup d’etat, cannot be given effect. x x x, such declaration was made without or in excess of jurisdiction; hence, a nullity. The second paragraph of the above provision (referring to Section 1 of R.A. No. 7055) explicitly specifies what are considered "service-connected crimes or offenses" under Commonwealth Act No. 408, as amended, also known as the Articles of War, to wit: Articles 54 to 70: Art. 54. Fraudulent Enlistment. Art. 55. Officer Making Unlawful Enlistment. Art. 56. False Muster. Art. 57. False Returns. Art. 58. Certain Acts to Constitute Desertion. Art. 59. Desertion. Art. 60. Advising or Aiding Another to Desert. Art. 61. Entertaining a Deserter. Art. 62. Absence Without Leave. Art. 63. Disrespect Toward the President, Vice-President, Congress of the Philippines, or Secretary of National Defense. Art. 64. Disrespect Toward Superior Officer. Art. 65. Assaulting or Willfully Disobeying Superior Officer. Art. 66. Insubordinate Conduct Toward Non-Commissioned Officer. Art. 67. Mutiny or Sedition. Art. 68. Failure to Suppress Mutiny or Sedition. Art. 69. Quarrels; Frays; Disorders. Art. 70. Arrest or Confinement. Articles 72 to 92: Art. 72. Refusal to Receive and Keep Prisoners. Art. 73. Report of Prisoners Received. Art. 74. Releasing Prisoner Without Authority. Art. 75. Delivery of Offenders to Civil Authorities. Art. 76. Misbehavior Before the Enemy. Art. 77. Subordinates Compelling Commander to Surrender. Art. 78. Improper Use of Countersign. Art. 79. Forcing a Safeguard. Art. 80. Captured Property to be Secured for Public Service. Art. 81. Dealing in Captured or Abandoned Property. Art. 82. Relieving, Corresponding With, or Aiding the Enemy. Art. 83. Spies. Art. 84. Military Property.–Willful or Negligent Loss, Damage or wrongful Disposition. Art. 85. Waste or Unlawful Disposition of Military Property Issued to Soldiers. Art. 86. Drunk on Duty. Art. 87. Misbehavior of Sentinel. Art. 88. Personal Interest in Sale of Provisions. Art. 88-A. Unlawful Influencing Action of Court. Art. 89. Intimidation of Persons Bringing Provisions. Art. 90. Good Order to be Maintained and Wrongs Redressed. Art. 91. Provoking Speeches or Gestures. 21

Art. 92. Dueling. Articles 95 to 97: Art. 95. Frauds Against the Government. Art. 96. Conduct Unbecoming an Officer and Gentleman. Art. 97. General Article. Further, Section 1 of Rep. Act No. 7055 vests on the military courts the jurisdiction over the foregoing offenses. x x x. It is clear from the foregoing that Rep. Act No. 7055 did not divest the military courts of jurisdiction to try cases involving violations of Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of the Articles of War as these are considered "service-connected crimes or offenses." In fact, it mandates that these shall be tried by the court-martial. Moreover, the observation made by Mr. Justice Antonio T. Carpio during the deliberation of this case is worth quoting, thus: The trial court aggravated its error when it justified its ruling by holding that the charge of Conduct Unbecoming an Officer and a Gentleman is ‘absorbed and in furtherance to the alleged crime of coup d’etat.’ Firstly, the doctrine of ‘absorption of crimes’ is peculiar to criminal law and generally applies to crimes punished by the same statute, 25unlike here where different statutes are involved. Secondly, the doctrine applies only if the trial court has jurisdiction over both offenses. Here, Section 1 of R.A. 7055 deprives civil courts of jurisdiction over service-connected offenses, including Article 96 of the Articles of War. Thus, the doctrine of absorption of crimes is not applicable to this case. Military law is sui generis (Calley v. Callaway, 519 F.2d 184 [1975]), applicable only to military personnel because the military constitutes an armed organization requiring a system of discipline separate from that of civilians (see Orloff v. Willoughby, 345 U.S. 83 [1953]). Military personnel carry high-powered arms and other lethal weapons not allowed to civilians. History, experience, and the nature of a military organization dictate that military personnel must be subjected to a separate disciplinary system not applicable to unarmed civilians or unarmed government personnel. A civilian government employee reassigned to another place by his superior may question his reassignment by asking a temporary restraining order or injunction from a civil court. However, a soldier cannot go to a civil court and ask for a restraining or injunction if his military commander reassigns him to another area of military operations. If this is allowed, military discipline will collapse. xxx This Court has recognized that courts-martial are instrumentalities of the Executive to enable the President, as Commander-in-Chief, to effectively command, control, and discipline the armed forces (see Ruffy v. Chief of Staff, 75 Phil. 875 [1946], citing Winthrop’s Military Law and Precedents, 2nd edition, p. 49). In short, courts-martial form part of the disciplinary system that ensures the President’s control, and thus civilian supremacy, over the military. At the apex of this disciplinary system is the President who exercises review powers over decisions of courts-martial (citing Article 50 of the Articles of War; quoted provisions omitted). xxx While the Court had intervened before in courts-martial or similar proceedings, it did so sparingly and only to release a military personnel illegally detained (Ognir v. Director of Prisons, 80 Phil. 401 [1948] or to correct objectionable procedures (Yamashita v. Styer, 75 Phil. 563 [1945]). The Court has never suppressed court-martial proceedings on the ground that the offense charged ‘is absorbed and in furtherance of’ another criminal charge pending with the civil courts. The Court may now do so only if the offense charged is not one of the service-connected offenses specified in Section 1 of RA 7055. Such is not the situation in the present case.

22

With respect to the issue of prescription raised by petitioners in their Supplemental Petition, suffice it to say that we cannot entertain the same. The contending parties are at loggerheads as to (a) who among the petitioners were actually arraigned, and (b) the dates of their arraignment. These are matters involving questions of fact, not within our power of review, as we are not a trier of facts. In a petition for prohibition, such as the one at bar, only legal issues affecting the jurisdiction of the tribunal, board or officer involved may be resolved on the basis of the undisputed facts. 26 Clearly, the instant petition for prohibition must fail. The office of prohibition is to prevent the unlawful and oppressive exercise of authority and is directed against proceedings that are done without or in excess of jurisdiction, or with grave abuse of discretion, there being no appeal or other plain, speedy, and adequate remedy in the ordinary course of law. 27 Stated differently, prohibition is the remedy to prevent inferior courts, corporations, boards, or persons from usurping or exercising a jurisdiction or power with which they have not been vested by law. 28 In fine, this Court holds that herein respondents have the authority in convening a court martial and in charging petitioners with violation of Article 96 of the Articles of War. WHEREFORE, the instant petition for prohibition is DISMISSED. SO ORDERED.

G.R. No. 201565

October 13, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. EX-MAYOR CARLOS ESTONILO, SR., MAYOR REINARIO "REY" ESTONILO, EDE LB RANDO ESTONILO a.k.a. "EDEL ESTONILO," EUTIQUIANO ITCOBANES a.k.a. "NONONG ITCOBANES," and CALVIN DELA CRUZ a.k.a. "BULLDOG DELA CRUZ," Accused-Appellants. DECISION LEONARDO-DE CASTRO, J.: In this appeal, accused-appellants Ex-Mayor Carlos Estonilo, Sr. (Carlos, Sr.), Mayor Reinario Estonilo (Rey), Edelbrando Estonilo (Edel), Eutiquiano Itcobanes (Nonong), and Calvin Dela Cruz (Bulldog) seek liberty from the judgment1 of conviction rendered by the Regional Trial Court (RTC), Branch 45, Manila, which found them guilty beyond reasonable doubt of the complex crime ofMurder with Direct Assault in Criminal Case No. 05-238607. The above-named accused-appellants, along with four others, namely: Nonoy Estonilo (Nonoy),2 Titing Booc (Titing),3 and Gali Itcobanes (Gali),4 and Orlando Tagalog Materdam (Negro)5 were all charged in an Information dated July 30, 2004 that reads: That on or about April 5, 2004 at 8:00 o’clock in the evening thereof, at Celera Elementary School,6 Brgy. Villa Inocencio, Municipality of Placer, Province of Masbate, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, armed with firearms, conspiring, confederating and mutually helping one another, with evident premeditation and treachery, did then and there willfully, unlawfully and feloniously attack, assault and shoot one FLORO A. CASAS, while in the performance of his duty being the District Supervisor of public schools, hitting the latter on the different parts of his body which caused his instantaneous death. 7 On November 8, 2005, the prosecutor filed an Amended Information,8 which provides: That on or about April 5, 2004, at Celera Elementary School, Brgy. Villa Inocencio, Municipality of Placer, Province of Masbate, Philippines, and within the jurisdiction of the Honorable Court of Masbate, the above-named accused EX-MAYOR CARLOS ESTONILO, SR. and MAYOR 23

REINARIO "REY" ESTONILO, conspiring and confederating together and helping one another, with intent to kill, and with evident premeditation and treachery, did then and there willfully, unlawfully and feloniously induce their co-accused, EDELBRANDO ESTONILO AL[I]AS "EDEL ESTONILO[,] " EUTIQUIANO ITCOBANES AL[I]AS "NONONG ITCOBANES[,] " NONOY ESTONILO, TITING BOOC, GALI ITCOBANES, ORLANDO MATERDAM Y TAGALOG ALIAS "NEGRO MATERDAM[,]" [and] CALVIN DELA CRUZ AL[I]AS "BULLDOG DELA CRUZ[,]" who wereall armed with firearms, to attack, assault and use personal violence upon the person of one FLORO A. CASAS, while in the performance of his duty being a District Supervisor of public schools, by then and there shooting the latter, hitting said FLORO A. CASAS on the differentparts of his body which were the direct and immediate cause of his death thereafter.9 When they were arraigned on November 9, 2005, the accused-appellants pleaded not guilty to the crime charged. On the same date, the RTC issued a pre-trial order which stated, among others: a) Upon request by the prosecution, the defense admitted the following: 1. The identities of the five (5) accused present; 2. As to the jurisdiction of this Court, there was an Order from the Honorable Supreme Court asto the transfer of venue; 3. The fact of death of Floro A. Casas; 4. That the victim Floro A. Casas at the time of his death was a District Supervisor of the Department of Education. b) However, upon request by the defense, the prosecution did not admit that Ex-Mayor Carlos Estonilo, Sr. and Mayor Reinario Estonilo were not at the scene ofthe incident during the incident.10 The prosecution presented nine witnesses, namely: Elsa Q. Casas (Elsa), the victim’s wife; Felix Q. Casas (Felix), the victim’s son; Dr. Ulysses P. Francisco (Dr. Francisco), the Municipal Health Officer, Placer, Masbate; Senior Police Officer 4 Restituto L. Lepatan, Sr. (SPO4 Lepatan), Placer Police Station; Serapion M. Bedrijo (Serapion), employee of Municipal Councilor candidate Boy dela Pisa; Carlo S. Antipolo (Antipolo), a resident of Placer, Masbate; Diego L.Casas (Diego), cousin of the victim; Rosalinda V. Dahonan (Rosalinda), a resident of Placer, Masbate; and Servando P. Rosales (Servando), former employee of Ex-Mayor Carlos, Sr.11 The testimonies of the foregoing witnesses consisted of the following: Felix narrated that on April 4, 2005,the day before his father, Floro Casas (Floro), was gunned down, he was with the latter and some teachers at the Celera Inocencio Elementary School, Placer, Masbate; that they were working on the closing ceremonies to be held the following day; that one Ranio Morales called on Floro and told him that Mayor Carlos, Sr. wanted to see him at his (Ranio) house; that Floro and Felix went to see Mayor Carlos, Sr.; that when they saw Mayor Carlos, Sr., he showed them (Floro and Felix) a program of a celebration of the Federation of 7th Day Adventist that contained the names of the governor, the congressman, and Placer mayoralty candidate Vicente Cotero (Cotero), as guests of the said activity; that Felix asked his father why Cotero’s picture was so big while Mayor Carlos, Sr.’s name was not mentioned in the program; that Floro replied that he cannot help it because Cotero paid for the program; that the answer angered Mayor Carlos, Sr. and he scolded Floro; that Mayor Carlos, Sr. said "you are now for Cotero but you’re only Estonilo when you ask for my signature to sign the voucher. This is up to now thatyou will be the supervisor of Celera"; that Floro responded "when are you a superintendent when you don’t have any scholastic standing. Just look if I will still vote for your son"; that Mayor Carlos, Sr. replied "let’s see if you can still vote"; and that the following day, Floro was shot to death.12 But prior to the April 4, 2005 incident, Felix recounted that on December 10, 2003, upon invitation of Nonoy, he joined the latter’s group for a drinking spree at a videoke bar; that they talked about the death of one Titing Villester; that Nonoy told Felix that "brod, do not be afraid, because others are supposed to be afraid [of] us because they believe that we were the ones who killed Titing Villester" that afterwards Felix and the group were fetched at the videoke bar by Edel, a messenger of Mayor Carlos, Sr.; that they were brought to the house of one Bobong Baldecir (a nephew of Mayor Carlos, Sr.) in Daraga; that uponarriving thereat, Rey uttered "it’s good that Dodong (Felix’s nickname) is with you; that Nonoy then said "who would not [be] otherwise, his father would be the next victim 24

after Titing Villester";13 that Rey then turned to Felix and said, "it’s very important that your father is with us because a District Supervisor has a big [role] in the Comelec’s choice for those teachers who would become members of the Board of Election Inspectors"; that Felix clarified that Rey was then the 2004 mayoralty candidate for Placer, Masbate; and that Felix went along with him since he was in Daraga, the bailiwick of the Estonilos.14 On cross examination, the counsel for the accused tried to discredit Felix by questioning him on why it took him a long time to execute an affidavit relative to his father’s killing. Felix explained that he went to Cebu to stay away from Placer, which isunder the Estonilo’s jurisdiction. 15 The defense confronted Felix of a criminal case against him for illegal use of prohibited drugs, for which he was out on bail.16 On March 28, 2006, the prosecution presented two witnesses, Dr. Ulysses Francisco yPedrano and SPO4 Restituto Lepatan, Sr. The prosecution and the defense entered into stipulation offacts relative to their testimonies. [Stipulation of Facts on Dr. Ulysses P. Francisco’s testimony:] 1. That Dr. Ulysses P. Francisco, a Municipal Health Officer of Placer, Masbate, is expert in medicine; 2. That he was the one who conducted the Post-Mortem Examination on the dead body of Floro Casas yBaronda on April 6, 2004 at Katipunan, Placer, Masbate; 3. That in connection with his examination, he prepared the Post Mortem Examination Report, marked as Exhibit "F," the printed name and signature of Dr. Ulysses P. Francisco, marked as Exhibit "F-1"; 4. That he also prepared the Certificate of Death, marked as Exhibit "G" and the Sketch of a Human Body, marked as Exhibit "H"; 5. The veracity and truthfulness of the Post-Mortem Findings indicated in the Post-Mortem Examination Report; and 6. In the course of the examination of the victim, the said witness recovered three slugs: the 1 st slug was marked as Exhibit "I," the fragmented slug as Exhibit "I-1," and the metallic object consisting of two pieces of Exhibit "I-2." [Stipulation of Facts on SPO4 Restituto L. Lepatan, Sr.’s testimony:] 1. That there exists a Police Blotter in the Record/Blotter Book of the Placer, Masbate Police Station relativeto the shooting incident that occurred on April 5, 2004 at Celera Elementary School. Said Police Blotter was requested to be marked by the prosecution as Exhibit "J"; 2. That said witness prepared the Police Report dated April 17, 2004 relative to the blotter written on the Blotter Book. Said Police Report was requested to be marked as Exhibit "J-1" and the signature of Sr. Police Officer IV Restituto L. Lepatan, Sr. as Exhibit "J-1-a"; 3. The existence of the Police Blotter as appearing in the Blotter Book page number 325. Said Police Blotter book page 325 was requested to be marked as Exh. "K" and the bracketed portion thereof as Exh. "K-1."17 According to Dr. Francisco, Floro sustained gunshot wounds caused by more than one firearm based on the sizes of the slugs recovered and that some of them were fired at close range. The counsel for the accused waived his cross examination.18 Prosecution witness Serapion testified that while he was printing the name of Municipal Councilor candidate Boy dela Pisa on the street facing the Celera Elementary School on the night of April 5, 2004, he heard gunshots coming from inside the compound of the school; that after two or three minutes, he saw more or less six persons coming out of the school; that he was able to identify three of themas present in the courtroom: Edel, Nonoy, and Nonong; that he saw the six men approach Mayor Carlos, Sr.’s vehicle, which was parked near the school; that Mayor Carlos, Sr. and Rey came out of a house nearby; that upon reaching the vehicle, Serapion heard Nonoy say to Mayor Carlos, Sr. "mission accomplished, sir"; that Mayor Carlos, Sr. ordered Nonoy and his group to escape, which they did using two motorbikes towards the direction of Cataingan; and thereafter, that Mayor Carlos, Sr. and Rey drove towards the direction of Daraga.19

25

During his cross examination, the defense tried to discredit Serapion by confronting him with the fact thathe has a pending criminal case for frustrated murder and that he was out on bail. 20 Antipolo testified that on April 5, 2004, he was riding his motorcycle and passing by the gate of the Celera Elementary School when he heard gunshots and someone shouted that Floro was shot; that he stopped, alighted from his motorcycle, went to the gate, and saw four persons holding short firearms; that he identified Nonoy and Negro as the two who fired at Floro about seven times; that he identifiedEdel and Nonong as the two other gun holders; that at that moment, Gali shouted "sir, that’s enough, escape!"; that Gali was accompanied by someone named Ace, Titing and Bulldog; that right after Gali shouted for them to escape, all of them hurriedly left the school compound; that he saw Mayor Carlos, Sr.’s pick-up vehicle arrive soon thereafter; that Mayor Carlos, Sr., Rey and Negro alighted from the vehicle and watched the proceedings; that he heard Mayor Carlos, Sr. say "leave it because it’s already dead"; and that afterwards, the police officers arrived.21 In an attempt to discredit Antipolo, the defense counsel confronted him with a criminal case against him for homicide of one Edgardo Estonilo (brother of accused-appellant Edel) that happened on October 30, 2005.22 Elsa was presented to testify on the probable motive for the killing of Floro, the circumstances surrounding the killing and its discovery, their family background, her husband’s line of work, how she felt on their loss, and the expenses relative to his killing. She testified that she heard there were people who were jealous of Floro’s position because he could bring voters to his side during election time;that Placer mayoralty candidate Cotero donated medals for the 2003-2004 closing ceremony of the entire district of public schools; that during the closing ceremony, the donor’s name was announced, which angered then Mayor Carlos, Sr.;23 that when Floro was processing a voucher worth P70,000.00, Mayor Carlos, Sr. refused to sign the same and even threw the voucher on the floor saying "let this be signed by Vicente Cotero"; and that Floro’s cousin, Diego Casas, helped Floro secure the Mayor’s signature by ensuring Mayor Carlos, Sr. that Floro was for him, and only then did Mayor Carlos, Sr. agree to sign the voucher.24 Diego L. Casas corroborated Elsa’s testimony relative to the fact that he helped Floro secure Mayor Carlos, Sr.’s signature on the voucher.25 Rosalinda testified that at 7:00 a.m. on April 10, 2004, Mayor Carlos, Sr. went to her house and told her thathe would kill her husband following Floro; that she was shocked and scared, thus, she went to the Placer Police Station and reported the incident; that she went to see her husband, who was then campaigning for mayoralty candidateCotero, and informed him of what happened; and that she went to Elsa’shouse and informed the latter of the threat.26 Servando attested that at about 7:00 a.m. on April 1, 2004, he was in the house of Mayor Carlos,Sr. together with said Mayor, Nonong, Edgar Estonilo, the group of Bulldog, Negro, Alias "S" [Ace], Rollie, Nonong, Edel, and Gali; that he witnessed Mayor Carlos, Sr. say "ipatumba si Floro Casas"; that Servando later learned thatthe mayor’s men were unsuccessful in their goal because Floro was no longer in Barangay Taberna, where they intended to execute the mayor’s order;and that Mayor Carlos, Sr. and his men again planned to kill Floro at Celera Elementary School on April 4, 2004.27 During cross examination, the defense confronted Servando with the latter’s Affidavit of Retraction, which he executed on June 14, 2004. The affidavit contained a withdrawal of his Sinumpaang Salaysaytaken on May 30, 2004 at the Philippine National Police-Criminal Investigation and Detection Group (PNP-CIDG) Camp Bonny Serrano, Masbate City relative to the criminal complaint for direct assault with murder filed against Mayor Carlos, Sr. and his company. He was also asked about two criminal charges filed against him in Cebu relative toviolation of Republic Act No. 9165, illegal sale and illegal possession of dangerous drugs.28 On re-direct examination, Servando narrated that Mayor Carlos, Sr.’s nephew, Bobong Baldecir, fetched him from his house and he was brought to the house of Mayor Carlos, Sr. in Daraga; that from there, he was brought to Atty. Besario in Cebu; that Atty. Besario informed him about the Affidavit of Retraction that he was supposed to sign, which he did not understand as it was written in English; and that he clarified that the contents of the affidavit was not his but those of Bobong.29

26

The defense on its part called to the witness stand Jesus Baldecir, Jr. (Jesus/Bobong), Quirino D. Calipay (Quirino), and the five accused-appellants. Jesus denied Servando’s allegation that he (Jesus) forced him to sign the Affidavit of Retraction. Jesus narrated that Servando gave word that he (Servando) wanted to meet him (Jesus); that upon their meeting, Servando told him that he wanted to retract his sworn statement because Mayor Carlos, Sr. and his company did nothing wrong; that Jesus, Servando and Servando’s wife went to Cebu to meet Atty. Besario; that while traveling, Servando told him that was evading the men of Governor Go, Vicente Cotero and Casas because he feared for his life; that during the meeting Atty. Besario prepared the affidavit and translated it to Cebuano dialect; that afterwards, Jesus, Servando and Servando’s wife went to the Capitol so that Servando could sign it before the prosecutor; that Jesus, Atty. Besario, Servado and his wife, and Dante Estonilo (another nephew of Mayor Carlos) went to Manila to meet with the media; that the media asked Servando whether he was forced to sign, or was given money or reward to sign the affidavit of retraction, Servando replied in the negative; and that the purpose of the press meeting was to present Servando and show that he was not kidnapped.30 But during his cross examination, Jesus admitted that his nickname was Bobong, and that Mayor Carlos, Sr. ishis uncle; that he is one of the accused in the criminal case for the kidnapping of Servando; and that it was Dante (Dante) Estonilo who arranged for the meeting with the media, and who served as Servando’s and his wife’s companion, while he was with Atty. Besario. 31 During his turn, accused-appellant Mayor Carlos, Sr. testified that in the early evening of April 5, 2004 hewas in a house near the Celera Elementary School attending a birthday party; that while thereat, he heard successive gunshots and went out to ridehis vehicle so he could check the source of the gunshots; that when he reached the school gate someone informed him that Floro was gunned down; that he did not see the victim because according to the people it was boarded in a jeep and brought to the hospital; and that he and his son, Rey, confirmed that they were at the school minutes after the incident.32 During cross examination, Mayor Carlos said that he and Floro were close friends; that he learned that he and his son were suspects in Floro’s killing five months after the incident; that he confirmed that Rey and Calvin dela Cruz were with him while inquiring about the shooting at the school; and that he denied having met Felix on April 4, 2004, seeing Rosalinda after April 5, 2004, or that Servando was his bodyguard.33 Accused-appellant Rey testified that in the early evening of April 5, 2004 he was in his house and was planning tocampaign at Barangay Matagantang, Placer, Masbate; that on his way to said barangay, he passed by Celera Elementary School and noticed his father’s vehicle, and that there were several people thereat; that he stopped and stayed in the school for a few minutes, and then proceeded to meet his candidates for counselors at Ranio’s house; and that afterwards, they all went to Barangay Matagantang.34 On cross examination, Rey expressed that this criminal case may be politically motivated because his opponents could not attribute anything to him since he won as mayor.35 Quirino narrated that in the evening of April 5, 2004, he and his family were having supper at their house located in front of Celera Elementary School’s guardhouse, when they heard gunshots; that they immediately laid down, while Quirino ran across the road and took cover at the school fence; that he peeped through the fence and saw three persons firing a gun; that he could not identify them or their victim because it was a bit dark; that after 10 to 20 seconds, hewent back home; that a certain Joel Alcantara and his companions went to him asking him to go with them inside the school, once inside the school, they saw Floro lying face down; that he took the liberty to go to the police headquarters located five minutes away; and that when he and the Placer Chief of Police arrived at the school, he noticed Mayor Carlos, Sr. standing near the gate.36 For his part, accused-appellant Nonong testified that in the evening of April 5, 2004 he was engaged in a drinking spree in Nining Berdida’s house at Barangay Pili, Placer, Masbate; and that he stayed in her place until 11:00 p.m.37

27

During his cross examination, accused-appellant Nonong acknowledged that Mayor Carlos, Sr. is his uncle and Rey is his second cousin; that he was not Mayor Carlos, Sr.’s bodyguard, but admitted that he handled the latter’s fighting cocks; and admitted that Barangay Pili is 40 to 45 minutes away from the poblacionof Placer.38 Edel related that in the evening of April 5, 2004, he was sleeping in his house when Rey called him to go to Ranio’s house in Placer, Masbate for a meeting; that their group passed by Celera Elementary School and saw that there were plenty of people, one of whom was Mayor Carlos, Sr.; that their group stopped to inquire about what happened, and learned that Floro was gunned down; and that he and his group stayed for about five minutes and left.39 Accused-appellant Bulldog was also presented in court and confirmed that he was with Mayor Carlos, Sr. and his wife attending a birthday party near the Celera Elementary School; that they went to the school to check on what happened and learned that Floro was shot; and that they did not stay long and went home to Daraga.40 During cross examination, he deniedthat he was the bodyguard of Mayor Carlos, Sr.; and that he was merely accompanying the latter to help in pushing his vehicle in case the starter failed to work. 41 After trial, the RTC found the accused-appellants guilty beyond reasonable doubt of the crime charged. The fallo of its March 30, 2009 Decision provides: WHEREFORE, premises considered, this Court finds the accused EX-MAYOR CARLOS ESTONILO, SR., MAYOR REINARIO "REY" ESTONILO, EDELBRANDO ESTONILO alias "EDEL ESTONILO," EUTIQUIANO ITCOBANES alias "NONONG ITCOBANES," and CALVIN DELA CRUZ alias BULLDOG DELA CRUZ" GUILTY BEYOND REASONABLE DOUBT of the crime of Murder with Direct Assault under Article 248 and Article 148 in relation to Article 48 all of the Revised Penal Code and each of said accused are hereby sentenced to suffer the penalty of imprisonment of twenty (20) years and one (1) day to forty (40) years of reclusion perpetua. As civil liability pursuant to Article 100 of the Revised Penal Code, the aforesaid sentenced the accused are all hereby ordered to solidarily indemnify the family of the victim Floro Casas in the amount of Fifty Thousand Pesos (P50,000.00). Likewise, by way of moral damages, the said accused are furthermore ordered to solidarily pay the said family the amount of One Hundred Thousand Pesos (P100,000.00). The accused are, however, credited in the service of their sentence the full time during which they have been denied. Let this case be archivedas against the accused NONOY ESTONILO, TITING BOOC, and GALIITCOBANES who have warrants of arrest issued against them but still remain at large, pending their arrest/s. As to the accused ORLANDO TAGALOG MATERDAM ALIAS "NEGRO MATERDAM," separate trial isnecessary considering that he was only recently arrested when the trial of this case as to the other accused was already about to end.42 The RTC gave credence to the eyewitness account of Antipolo and the corroborating testimony of Serapion, who were both present at the school grounds during the shooting incident. The RTC pronounced that the evidence on record showed unity of purpose in the furtherance of a common criminal design, that was the killing of Floro. Accused-appellants Nonoy and Negro were the gunmen, while accused-appellants Edel and Nonong served as backup gunmen. Accused-appellant Bulldog, and accused Gali, Titing and one alias Ace served as lookouts.43 The RTC found accused-appellants Mayor Carlos, Sr. and Rey to have ordered their co-accused to kill Floro based on the testimony of Servando, who was present when the group planned to kill Floro. Thus, the RTC concluded that Ex-Mayor Carlos, Sr. is a principal by inducement. And accusedappellant Rey conspired with his father. In sum, the prosecution was able to establish conspiracy and evident premeditation among all the accused-appellants.44 28

The accused-appellants’ defense of alibi and denial did not withstand the positive identification of the prosecution witnesses. The accused appellants claimed that they were somewhere else in Placer, Masbate when the shooting took place. However, they were not able to establish the physical improbability of their being in the crime scene at the time of the shooting. The RTC was convinced thatthe motive for the murder was due to Floro’s support for mayoral candidate Vicente Cotero. Since the victim was a district supervisor of public schools, the RTC convicted the accused appellants of the complex crime of murder with direct assault.45 All five accused-appellants appealed the foregoing RTC decision to the Court of Appeals alleging that the RTC erred in concluding that motive was duly established, in appreciating the prosecution evidence and disregarding the salient points of the defense evidence, and in convicting the accused. 46 In its May 12, 2011 Decision, the Court of Appeals affirmed with modification the RTC decision.47 The dispositive part thereof reads: WHEREFORE, in light of the foregoing, the instant appealed is denied. The Decision dated 30 March 2009 of the Regional Trial Court of Manila, Branch 45 is hereby AFFIRMED with modificationin that the penalty imposed upon accused-appellants shall simply be reclusion perpetua with its accessory penalties and that the award of civil indemnity is increased to Seventy[-]Five Thousand Pesos (P75,000.00).48 The Court of Appeals sustained the findings of fact and conclusions of law of the RTC considering that the RTC had observed and monitored at close range the conduct, behavior and deportment of the witnesses as they testified. The Court of Appeals corrected the penalty imposed, and explained that reclusion perpetuais an indivisible penalty which should be imposed without specifying the duration. On June 29, 2011, the accused-appellants moved for reconsideration,49 which the Court of Appeals denied in its November 8, 2011 Resolution.50 Unsatisfied, the accused-appellants appealed their case before this Court.51 This Court’s Ruling The accused-appellants pray for the reversal of the judgment of conviction in the criminal case on the following assignment of errors: the RTC and the Court of Appeals erred in (1) giving credence and weight to the prosecution evidence, (2) finding that there was conspiracy among the accusedappellants, and (3) finding the accused-appellants guilty beyond reasonable doubt based on the prosecution evidence. In essence, the defense disagrees with the disposition of the Court of Appeals affirming their conviction for murder with direct assault on the ground that some of the testimonies of the prosecution witnesses constitute circumstantial evidence, and that the prosecution was not able to prove their guilt beyond reasonable doubt. The appeal fails. After a review of the record of the case, this Court sustains the conviction of the accused-appellants for murder with direct assault. The age-old rule is that the task ofassigning values to the testimonies of witnesses on the witness stand and weighing their credibility is best left to the trial court which forms its first-hand impressions as a witness testifies before it. It is, thus, no surprise that findings and conclusions of trial courts on the credibility of witnesses enjoy, asa rule, a badge of respect, for trial courts have the advantage of observing the demeanor of witnesses as they testify.52 This Court had nevertheless carefully scrutinized the records but found no indication that the trial and the appellate courts overlooked or failed to appreciate facts that, if considered, would change the outcome of this case. The trial court and the appellate court did not err in giving credence to the testimonies of the prosecution witnesses, particularly of Antipolo who was an eyewitness to the crime. 29

Antipolo’s testimony did not suffer from any serious and material inconsistency that could possibly detract from his credibility. He identified the accused-appellant Nonoy and accused Negro as those who fired at Floro about seven times, while accused-appellants Edel and Nonong were on standby also holding their firearms. He also witnessed accused Gali shouting to the gunmen to stop and escape. He narrated that after all the accused left, Mayor Carlos, Sr., Rey and Materdam arrived aboard the mayor’s vehicle. He also heard Mayor Carlos said "leave it because it’s already dead." From his direct and straightforward testimony, there is no doubt as to the identity of the culprits. To successfully prosecute the crime of murder, the following elements must be established: 53 (1) that a person was killed; (2) that the accused killed him or her; (3) that the killing was attended by any of the qualifying circumstances mentioned in Article 248of the Revised Penal Code; and (4) that the killing is not parricide or infanticide.54 In this case, the prosecution was able to clearly establish that (1) Floro was killed; (2) Ex-Mayor Carlos, Sr., Rey, Edel, Nonong, and Calvin were five of the nine perpetrators who killed him; (3) the killing was attended by the qualifying circumstance of evident premeditation as testified to by prosecution eyewitnesses, Servando and Antipolo, as well as treachery as below discussed; and (4) the killing of Floro was neither parricide nor infanticide. Of the four elements, the second and third elements are essentially contested by the defense. The Court finds that the prosecution unquestionably established these two elements. For the second element, the prosecution presented pieces of evidence which when joined together point to the accused-appellants as the offenders. Foremost, there is motive to kill Floro. It was Floro’s support for Vicente Cotero, who was Rey’s opponent for the position of mayor in Placer, Masbate. Second, the prosecution was able to establish that the accused appellants planned to kill Floro on two separate occasions. The prosecution witness, Servando, was present in Mayor Carlos, Sr.’shouse when they were plotting to kill Floro. He also heard Mayor Carlos, Sr. say "ipatumba si Floro Casas." Third, Antipolo was an eye witness to the killing. His testimony was corroborated by another witness, Serapion, who testified having seen the accused-appellants leaving the school a few minutes after he heard the gunshots. Serapion also recounted having heard one of them said "mission accomplished sir," after which, Mayor Carlos, Sr. ordered them to leave. Essentially, the prosecution evidence consists of both direct evidence and circumstantial evidence. The testimony of the eyewitness Antipolo is direct evidence of the commission of the crime. Circumstantial evidence is that evidence which proves a fact or series of facts from which the facts in issue may be established by inference.55 It consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience.56 Here, the circumstantial evidence consists of the testimonies of Servando and Serapion. Servando was present when Mayor Carlos, Sr. ordered his men to kill Floro. Whether this order was executed can be answered by relating it to Antipolo’s eyewitness account as well as Serapion’s testimony. As for the third element of qualifying circumstance, the prosecution witness, Servando, testified that he was present on the two occasions when the accused-appellants were planning tokill Floro. His categorical and straight forward narration proves the existence of evident premeditation. Treachery also attended the killing of Floro. For treachery to be present, two elements must concur: (1) at the time of the attack, the victim was not in a position to defend himself; and (2) the accused consciously and deliberately adopted the particular means, methods, or forms of attack employed by him. The essence of treachery is that the attack is deliberate and without warning, done in a swift and unexpected way, affording the hapless, unarmed and unsuspecting victim no chance to resist or escape. In this case, accused-appellant Nonoy and accused Negro successively fired at Floro about seven times – and the victim sustained 13 gunshot wounds all found to have been inflicted at close range giving the latter no chance at all to evade the attack and defend himself from the unexpected onslaught. Accused-appellants Edel and Nonong were on standby also holding their firearms to insure the success of their "mission" without risk to themselves; and three others served as lookouts. Hence, there is no denying that their collective acts point to a clear case of treachery. 30

Defense of denial and alibi The twin defenses of denial and alibi raised by the accused-appellants must fail in light of the positive identification made by Antipolo and Serapion. Alibi and denial are inherently weak defenses and must be brushed aside when the prosecution has sufficiently and positively ascertained the identity of the accused as in this case. It is also axiomatic that positive testimony prevails over negative testimony.57 The accused-appellants’ alibis that they were at different places at the time of the shooting are negative and self-serving and cannot be given more evidentiary value vis-à-vis the affirmative testimony of credible witnesses. The accused-appellants, the victim, and the prosecution witnesses reside in the same municipality and are, therefore, familiar with one another. More so, that the two principal accused in this case are prominent political figures. Therefore, the prosecution witnesses could not havebeen mistaken on the accused appellants’ identity including those who remained at large. Further, it has been held that for the defense of alibi to prosper, the accused must prove the following: (i) that he was present at another place at the time of the perpetration of the crime; and (ii) that it was physically impossible for him to be at the scene of the crime during its commission. Physical impossibility involves the distance and the facility of access between the crime scene and the location of the accused when the crime was committed; the accused must demonstrate that he was so far away and could not have been physically present atthe crime scene and its immediate vicinity when the crime was committed.58 Here, the accused-appellants utterly failed to satisfy the abovequoted requirements. In fact, Mayor Carlos, Sr. and his other co-accused, except for Nonong, admitted that they were near the school before the incident and at the school minutes after the killing took place. Certainly, the distance was not too far as to preclude the presence of accused-appellants at the school, and/or for them to slip away from where they were supposed to be, unnoticed. Penalties On the offense committed by accused-appellants, the RTC correctly concluded that they should be held accountable for the complex crime of direct assault with murder. There are two modes of committing atentados contra la autoridad o sus agentesunder Article 148 of the Revised Penal Code. Accused-appellants committed the second form of assault, the elements of which are that there must be an attack, use of force, or serious intimidation or resistance upon a person in authority or his agent; the assault was made when the said person was performing his duties or on the occasion of such performance; and the accused knew that the victim is a person in authority or his agent, that is, that the accused must have the intention to offend, injure or assault the offended party as a person in authority or an agent of a person in authority. In this case, Floro was the duly appointed District Supervisor of Public Schools, Placer, Masbate, thus, was a person in authority. But contrary to the statement of the RTC that there was direct assault just because Floro was a person in authority, this Court clarifies that the finding of direct assault is based on the fact that the attack or assault on Floro was, in reality, made by reason of the performance of his duty as the District Supervisor. When the assault results in the killing of that agent or of a person in authority for that matter, there arisesthe complex crime of direct assault with murder or homicide. The offense is a complex crime, the penalty for which is that for the graver offense, to be imposed in the maximum period. Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, provides for the penalty of reclusion perpetua to death for the felony of murder; thus, the imposable penalty should have been death. Plus the fact that there exists an aggravating circumstance, pursuant to Article 63, paragraph 2 of the Revised Penal Code, the proper penalty is death. But the imposition of death penalty has been prohibited by Republic Act No. 9346, entitled "An Act Prohibiting the Imposition of Death Penalty in the Philippines"; thus, the RTC, as affirmed by the Court of Appeals, properly imposed upon accused-appellants the penalty of reclusion perpetua. The Proper Indemnities

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As to the proper monetary awards imposable for the crime charged, modifications must be made herein.1âwphi1 The award of P100,000.00 each as civil indemnity and moral damages is proper to conform with current jurisprudence.59 Further, when a crime is committed with an aggravating circumstance either as qualifying or generic, an award of exemplary damages is justified under Article 223060 of the New Civil Code. Thus, conformably with the above, the legal heirs of the victim are also entitled to an award of exemplary damages61 in the amount of P100,000.00. Lastly, an interest at the rate of six percent (6%) per annum shall be imposed on all the damages awarded, to earn from the date of the finality of this judgment until fully paid, in line with prevailing jurisprudence.62 At this point, notice must be made that on January 28, 2014, the Superintendent, New Bilibid Prison informed this Court of the death of accused-appellant Ex-Mayor Carlos, Sr. on January 9, 2013. In view thereof, the case against deceased Ex-Mayor Carlos, Sr. is hereby ordered dismissed. WHEREFORE, premises considered, the Court of Appeals Decision dated May 12, 2011 in CA-G.R. CR.-H.C. No. 04142, affirming the Decision dated March 30, 2009, promulgated by the Regional Trial Court of Manila, Branch 45, in Criminal Case No. 05-238607, finding accused appellants REINARIO "REY" ESTONILO, EDELBRANDO "EDEL" ESTONILO, EUTIQUIANO "NONONG" ITCOBANES, and CAL VIN "BULLDOG" DELA CRUZ GUILTY beyond reasonable doubt of Murder with Direct Assault, is hereby AFFIRMED with MODIFICATIONS, the award of civil indemnity and moral damages is increased to P100,000.00 each, in addition to P100,000.00 as exemplary damages, and the imposition of 6% thereon as legal interest upon finality of this Court's Decision. SO ORDERED. G.R. No. 202692

November 12, 2014

EDMUND SYDECO y SIONZON, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION VELASCO, JR., J.: Assailed and sought to be set aside in this petition for review under Rule 45 are the December 28, 2011 Decision1and July 18, 2012 Resolution2 of the Court of Appeals (CA) in CA-G.R. CR No. 33567. The assailed issuances affirmed the decision3 of the Regional Trial Court (RTC) of Manila, Branch 12, in Criminal Case Nos. 09-270107-08 which, in turn, affirmed that of the Metropolitan Trial Court (MeTC) in Manila adjudging petitioner Edmund Sydeco (Sydeco) guilty of drunk driving and resisting arrest.4 The factual backdrop: On July 20, 2006, separate Informations, one for Violation of Section 56(f) of Republic Act No. (RA) 41365 and another, for Violation of Article 151 of the Revised Penal Code (RPC)6 were filed against petitioner Sydeco with the MeTC in Manila and eventually raffled to Branch 14 of that court. The accusatory portions of the interrelated informations, docketed as Crim. Case No. 052527-CN for the first offense and Crim. Case No. 052528-CN for the second, respectively read: 1. Crim. Case No. 052527-CN That on or about June 11, 2006, in the City of Manila, Philippines, the said accused, being then the driver and owner of a car, did then and there willfully and unlawfully, drive, manage and operate the

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same along Roxas Blvd. cor. Quirino Avenue, Malate, in said city, while under the influence of liquor, in violation of Section 56(f) of Republic Act 4136. Contrary to law. 2. Crim. Case No. 052528-CN That on or about June 11, 2006, in the City of Manila, Philippines, the said accused, did then and there willfully and unlawfully resist and disobey P/INSP Manuel Aguilar, SPO2 Virgilio Paulino, SPO4 Efren Bodino and PO3 Benedict Cruz III, bonafide member of the Philippine National Police, Malate Police Station-9, duly qualified and appointed, and while in the actual performance of their official duties as such police officers, by then and there resisting, shoving and pushing, the hands of said officers while the latter was placing him under arrest for violation of Article 151 of the Revised Penal Code. Contrary to law. By Order of September 19, 2006, the MeTC classified the cases as falling under, thus to be governed by, the Rule on Summary Procedure. When arraigned, petitioner, as accused, pleaded "Not Guilty" to both charges. During the trial of the two consolidated cases, the prosecution presented in evidence the oral testimonies of SPO4 Efren Bodino (Bodino),7 PO2 Emanuelle Parungao8 and Ms. Laura Delos Santos,9 plus the documents each identified while in the witness box, among which was Exh. "A", with sub-markings, the Joint Affidavit of Arrest10executed by SPO2 Bodino and two other police officers. The defense’s witnesses, on the other hand, consisted of Sydeco himself, his wife, Mildred, and Joenilo Pano. The prosecution’s version of the incident, as summarized in and/or as may be deduced from, the CA decision now on appeal is as follows: On or about June 11, 2006, P/Insp. Manuel Aguilar (Aguilar), SPO4 Bodino, PO3 Benedict Cruz III and another officer were manning a checkpoint established along Roxas Boulevard corner Quirino Ave., Malate, Manila when, from about twenty (20) meters away, they spotted a swerving red Ford Ranger pick up with plate number XAE-988. Petitioner was behind the wheel. The team members, all inuniform, flagged the vehicle down and asked the petitioner to alightfrom the vehicle so he could take a rest at the police station situated nearby,before he resumes driving. 11 Petitioner, who the policemen claimed was smelling of liquor, denied being drunk and insisted he could manage to drive. Then in a raised voice, petitioner started talking rudely to the policemen and in fact yelled at P/Insp. Aguilar blurting: "P…g ina mo, bakit mo ako hinuhuli." Atthat remark, P/Insp. Aguilar, who earlier pointed out to petitioner that his team had seen him swerving and driving under the influence of liquor, proceeded to arrestpetitioner who put up resistance. Despite petitioner’s efforts to parry the hold on him, the police eventually succeeded in subduing him who was then brought to the Ospital ng Maynila where he was examined and found to be positive of alcoholic breath per the Medical Certificate issuedby that hospital, marked as Exh. "F". Petitioner was then turned over to the Malate Police Station for disposition.12 Petitioner, on the other hand, claimed tobe a victim in the incident in question, adding in this regard that he has in fact filed criminal charges for physical injuries, robbery and arbitrary detention against P/Insp. Aguilar et al. In his Counter-Affidavit13 and his ComplaintAffidavit14appended thereto, petitioner averred that, in the early morning of June 12, 2006, he together with Joenilo Pano and Josie Villanueva, cook and waitress, respectively, in his restaurant located along Macapagal Ave., Pasay City, were on the way home from on board his pick-up when signaled to stop by police officers at the area immediately referred to above. Their flashlights trained on the inside of the vehicle and its occupants, the policemen then asked the petitioner to open the vehicle’s door and alight for a body and vehicle search, a directive he refused to heed owing to a previous extortion experience. Instead, he opened the vehicle window, uttering, "plain view lang boss, plain view lang." Obviously irked by this remark, one of the policemen, P/Insp. Aguilar, as it turnedout, then told the petitioner that he was drunk, pointing to three cases of empty beer bottles in the trunk of the vehicle. Petitioner’s explanation about being sober and that the empty bottles 33

adverted to came from his restaurant was ignored as P/Insp. Aguilar suddenly boxed him (petitioner) on the mouth and poked a gun at his head, at the same time blurting, "P…g ina mo gusto mo tapusin na kita dito marami ka pang sinasabi." The officers then pulled the petitioner out of the driver’s seat and pushed him into the police mobile car, whereupon he, petitioner, asked his companions to call up his wife. The policemen then brought petitioner to the Ospital ng Maynila where they succeeded in securing a medical certificate under the signature of one Dr. Harvey Balucating depicting petitioner as positive of alcoholic breath, although he refused to be examined and no alcohol breath examination was conducted. He was thereafter detained from 3:00 a.m.of June 12, 2006 and released in the afternoon of June 13, 2006. Before his release, however, he was allowed to undergo actual medical examination where the resulting medical certificate indicated that he has sustained physical injuries but negative for alcohol breath. Ten days later, petitioner filed his Complaint-Affidavit against Dr. Balucating, P/Insp. Aguilar and the other police officers. Petitioner also stated in his counter-affidavit that, under Sec. 29 of R.A. 4136, or the Land Transportation and Traffic Code, the procedure for dealing with a traffic violation is not to place the erring driver under arrest, but to confiscate his driver’s license. On June 26, 2009, the MeTC rendered judgment finding petitioner guilty as charged, disposing as follows: WHEREFORE, premises considered, the prosecution having established the guilt of the accused beyond reasonable doubt, his conviction of the offenses charges is hereby pronounced. Accordingly, he is sentenced to: 1. Pay a fine of two hundred fifty pesos (P250.00) for Criminal Case No. 052527-CN; and 2. Suffer imprisonment of straight penalty of three (3) months and pay a fine of two hundred fifty pesos (P250.00) for Criminal Case No. 052528-CN. For lack of basis, no civil liability is adjudged. The Branch Clerk of Court is directed to certify to the Land Transportation Office the result of this case, stating further the data required under Section 5815 of Republic Act 4136. Therefrom, petitioner appealed to the RTC on the main submissions that the MeTC erred in: 1) according credit to the medical certificate issued by Dr. Balucating, although the records custodian of Ospital ng Maynila was presented to testify thereon instead of the issuing physician, and 2) upholding the veracity of the joint affidavit of arrest of P/INSP Manuel Aguilar, SPO4 Efren Bodino, and PO3 Benedict Cruz III, considering that only SPO4 Bodino appeared in court to testify. By Decision16 dated February 22, 2010, the RTC affirmed the conviction of the petitioner, addressing the first issue thus raised in the appeal in the following wise: Dr. Balucating’s failure to testify relative to petitioner’s alcoholic breath, as indicatedin the medical certificate, is not fatal as such testimony would only serve to corroborate the testimony on the matter of SPO4 Bodino, noting thatunder the Rules of Court,17 observations of the police officers regarding the petitioner’s behavior would suffice to support the conclusion of the latter’s drunken state on the day he was apprehended.18 Apropos the second issue, the RTC pointed out that the prosecution has the discretion as to how many witnesses it needs to present before the trial court, the positive testimony of a single credible witness as to the guilt of the accused being reasonable enough to warrant a conviction. The RTC cited established jurisprudence19 enunciating the rule that preponderance is not necessarily with the greatest number as "[W]itnesses are to be weighed, not numbered." Following the denial by the RTC of his motion for reconsideration, petitioner went to the CA on a petition for review, the recourse docketed as CA-G.R. CR No. 33567. By a Decision dated December 28, 2011, as would be reiterated in a Resolution of July 18, 2012, the appellatecourt affirmed that of the RTC, thus: WHEREFORE, the petition is DENIED. The assailed Decision dated February 22, 2010 of the RTC, Manila, Branch 12, is AFFIRMED. SO ORDERED. 34

Hence, this petition on the following stated issues: I. The CA erred in upholding the presumption of regularity in the performance of duties by the police officers; and II. The CA erred in giving weight to the Medical Certificate issued by Dr. Harvey Balucating, in the absence of his testimony before the Court. The petition is meritorious. Prefatory, the rule according great weight, even finality at times, to the trial court’s findings of fact does hold sway when, as here, it appears in the record that facts and circumstancesof weight and substance have been overlooked, misapprehended or misapplied in a case under appeal.20 Corollary, it is basic that an appeal in criminal prosecutions throws the whole case wide open for review, inclusive of the matter of credibility and appreciation of evidence. 21` Peace officers and traffic enforcers,like other public officials and employees are bound to discharge their duties with prudence, caution and attention, which careful men usually exercise in the management of their own affairs. 22 In the case at bar, the men manning the checkpoint in the subject area and during the period material appearednot to have performed their duties as required by law, or at least fell short of the norm expected of peace officers. They spotted the petitioner’s purported swerving vehicle. They then signaled him to stop which he obeyed. But they did not demand the presentation of the driver’s license orissue any ticket or similar citation paper for traffic violation as required under the particular premises by Sec. 29 of RA 4136, which specifically provides: SECTION 29. Confiscation of Driver’s License. – Law enforcement and peace officers of other agencies duly deputized by the Director shall, in apprehending a driver for any violation of this Act or any regulations issued pursuant thereto, or of local traffic rules and regulations x x x confiscate the license ofthe driver concerned and issue a receipt prescribed and issuedby the Bureau therefor which shall authorize the driver to operate a motor vehicle for a period not exceeding seventy-two hours from the time and date of issue of said receipt. The period so fixed in the receipt shall not be extended, and shall become invalid thereafter.x x x (Emphasis added.) Instead of requiring the vehicle’s occupants to answer one or two routinary questions out of respectto what the Court has, in Abenes v. Court of Appeals,23 adverted to as the motorists’ right of "free passage without [intrusive] interruption," P/Insp. Aguilar, et al. engaged petitioner in what appears to be an unnecessary conversation and when utterances were made doubtless not to their liking, they ordered the latter to step out of the vehicle, concluding after seeing three (3) empty cases of beer at the trunk of the vehicle that petitioner was driving under the influence of alcohol. Then petitioner went on with his "plain view search" line. The remark apparently pissed the police officers off no end as one of them immediately lashed at petitioner and his companions as "mga lasing" (drunk) and to get out of the vehicle, an incongruous response to an otherwise reasonable plea. Defense witness, Joenilo Pano, graphically described this particular event in his sinumpaang salaysay, as follows: x x x matapos kami huminto ay naglapitan sa amin ang mga pulis, nag flash light sa loob ng sasakyan at sa aming mga mukha. x x x isang pulis ang nag-utos sa aminna kami ay magsi-baba at buksan ang pintuan ng nasabing sasakyan. x x x dahil doon sinabi ni Kuya sa mga pulis, na hindi pwede iyon at pinigilan niya ako at ang aking kasama kong waitress na bumaba. x x x iginiit ni Kuya sa mga pulisang salitang "PLAIN VIEW LANG BOSS, PLAIN VIEW LANG" pero iyon ayhindi nila pinansin. Sa halip as isang pulis ang nagsabi na "MGA LASING KAYO HETO MAY CASE PA KAYO NG BEER". x x x habang nagpapaliwanag si Kuya, isang pulis ang biglang kumuha ng susi ng sasakyan habang ang isang pulis ang biglang sumuntok sa bibig ni Kuya, nagbunot ng baril at tinutukan sa ulo si Kuya. x x x dahil doon ay nagmakaawa ako na wag barilin si Kuya subalit ako rin ay tinutukan ng baril. x x x na matapos suntukin si Kuya aypinagtulungan siya ng mga pulis na ilabas sa sasakyan at nang mailabas siyaay pinagtulakan siya ng mga pulis sa gilid ng kalsada habang hawak ang kanilang baril.24

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Pano’s above account ironicallyfinds in a way collaboration from the arresting officers themselves who admitted that they originally had no intention to search the vehicle in question nor subject its occupants to a body search. The officers wrote in their aforementioned joint affidavit: xxxx That we arrested the suspect, Edmund Sydeco y Siozon x x x for violation of RA 4136 (Driving under the influence of liquor), and violation of Article 151 of the RPC (Resisting Arrest) x x x committed on or about 3:30A.M., June 11, 2006 along x x x Malate, Manila. x x x He began to raise his voice and converse with us rudely without considering that we are in uniform, on duty and performing our job. P/INSP Manuel Aguilar pointed out that we saw him swerving and driving under the influence of liquor that was why we are inviting him to our police station in which our intention was to make him rest for a moment before he continue to drive. x x x (Emphasis added.) In fine, at the time of his apprehension, or when he was signaled to stop, to be precise, petitioner has not committed any crime or suspected of having committed one. "Swerving," as ordinarily understood,refers to a movement wherein a vehicle shifts from a lane to another or to turn aside from a direct course of action or movement.25 The act may become punishable when there is a sign indicating that swerving is prohibited or where swerving partakes the nature ofreckless driving, a concept defined under RA 4136, as: SECTION 48. Reckless Driving. – Noperson shall operate a motor vehicle on any highway recklessly or without reasonable caution considering the width, traffic, grades, crossing, curvatures, visibility and other conditions of the highway and the conditions of the atmosphere and weather, or so as to endanger the property or the safetyor rights of any person or so as to cause excessive or unreasonable damage to the highway. Swerving is not necessarily indicative of imprudent behavior let alone constitutive of reckless driving. To constitute the offense of reckless driving, the act must be something more than a mere negligence in the operation of a motor vehicle, and a willful and wantondisregard of the consequences is required.26 Nothing in the records indicate that the area was a "no swerving or overtaking zone." Moreover, the swerving incident, if this be the case, occurred at around 3:00 a.m. when the streets are usually clear of moving vehicles and human traffic, and the danger to life, limb and property to third persons is minimal. When the police officers stopped the petitioner’s car, they did not issue any ticket for swerving as required under Section 29 of RA 4136. Instead, they inspected the vehicle, ordered the petitioner and his companions to step down of their pick up and concluded that the petitioner was then drunk mainly because of the cases of beer found at the trunk of the vehicle. On re-direct examination, SPO4 Bodino testified: Q: On that particular date, time and place … what exactly prompted you to arrest the accused (sic) the charged in for Viol. of Section 56(f) of R.A. 4136? A: Noong mag check-up kami, naamoynamin na amoy alak siya at yung sasakyan ay hindi maganda ang takbo. Q: Now you stated in your affidavit of arrest Mr. Witness that you spotted the vehicle of the accused swerving, is that correct? A: Yes, sir. Q. Is that also the reason why you apprehended him? A: Yes, sir. Q: And what happened after Mr. Witness, when you approached the vehicle of the accused? A: The accused was in a loud voice. He was asking, "Bakit daw siya pinahihinto?" xxxx Q: How do you describe the resistance Mr. Witness? A: He refused to ride with us going to the hospital, Your Honor. x x x x27 Going over the records, it is fairly clear that what triggered the confrontational stand-off between the police team, on one hand, and petitioner on the other, was the latter’s refusal to get off of the vehicle for a body and vehicle search juxtaposed by his insistence on a plain view search only. Petitioner’s 36

twin gestures cannot plausibly be considered as resisting a lawful order.28 He may have sounded boorish or spoken crudely at that time, but none of this would make him a criminal. It remains to stress that the petitioner has not, when flagged down, committed a crime or performed an overt act warranting a reasonable inference of criminal activity. He did not try to avoid the road block established. He came to a full stop when so required to stop. The two key elements of resistance and serious disobedience punished under Art. 151 of the RPC are: (1) That a person in authority or his agent is engaged in the performance of official duty or gives a lawful order to the offender; and (2) That the offender resists or seriously disobeys such person or his agent.29 There can be no quibble that P/Insp. Aguilar and his apprehending team are persons in authority or agents of a person in authority manning a legal checkpoint. But surely petitioner’s act of exercising one’s right against unreasonable searches30 to be conducted in the middle of the night cannot, in context, be equated to disobedience let alone resisting a lawful order in contemplation of Art. 151 of the RPC. As has often been said, albeit expressed differently and under dissimilar circumstances, the vitality of democracy lies not in the rights it guarantees, but in the courage of the people to assert and use them whenever they are ignored or worse infringed.31 Moreover, there is, to stress, nothing in RA 4136 that authorized the checkpoint-manning policemen to order petitioner and his companions to get out of the vehicle for a vehicle and body search. And it bears to emphasize that there was no reasonable suspicion of the occurrence of a crime that would allow what jurisprudence refers to as a "stop and frisk" action. As SPO4 Bodino no less testified, the only reason why they asked petitioner to get out of the vehicle was not because he has committed a crime, but because of their intention toinvite him to Station 9 so he could rest before he resumes driving. But instead of a tactful invitation, the apprehending officers, in an act indicative of overstepping of their duties, dragged the petitioner out of the vehicle and, in the process of subduing him, pointed a gun and punched him on the face. None of the police officers, to note, categorically denied the petitioner’s allegation aboutbeing physically hurt before being brought to the Ospital ng Maynila to be tested for intoxication. What the policemen claimed was that it took the three (3) of them to subdue the fiftyfive year old petitioner. Both actions were done in excess of their authority granted under RA 4136. They relied on the medical certificate issued by Dr. Balucating attesting that petitioner showed no physical injuries. The medical certificate was in fact challenged not only because the petitioner insisted at every turn that he was not examined, but also because Dr. Balucating failed to testify as to its content. Ms. Delos Santos, the medical record custodian ofthe Ospital ng Maynila, testified, but only to attest that the hospital has a record of the certificate. The trial court, in its decision, merely stated: At the outset, the records of the case show that the same were not testified upon by the doctor who issued it.1âwphi1Instead, the Records Custodian of the Ospital ng Maynila was presented by the Prosecution to testify on the said documents. However, although the doctor who examined the accused was unable to testify to affirm the contents of the Medical Certificate he issued (re: that he was found to have an alcoholic breath), this court finds that the observation of herein private complainants as to the accused’s behavior and condition after the incident was sufficient. Under Section 50 of Rule 130 of the Revised Rules of evidence: The opinion of a witness for which proper basis is given, may be received in evidence regarding x x xx The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person Under Section 15 of the Revised Rules on Summary Procedure, "at the trial, the affidavits submitted by the parties shall constitute the direct testimonies of the witnesses who executed the same."32 In sum, the MeTC, as echoed by RTC and CA later, did not rely on the medical certificate Dr. Balucating issued on June 12, 2006 as to petitioner’s intoxicated state, as the former was not able to testify as to its contents, but on the testimony of SPO4Bodino, on the assumption that he and his fellow police officers were acting in the regular performance of their duties. It cannot be emphasized enough that smelling of liquor/alcohol and be under the influence of liquor are differing concepts. 37

Corollarily, it is difficult to determine with legally acceptable certainty whether a person is drunk in contemplation of Sec. 56(f) of RA 4136 penalizing the act of driving under the influence of alcohol. The legal situation has of course changed with the approval in May 2013 of the Anti-Drunk and Drugged Driving Act of 2013 (RA 10586) which also penalizes driving under the influence of alcohol (DUIA),33a term defined under its Sec. 3(e) as the "act of operating a motor vehicle while the driver’s blood alcohol concentration level has, after being subjected to a breath analyzer test reached the level of intoxication as established jointly by the [DOH], the NAPOLCOM] and the [DOTC]. And under Sec. 3(g) of the IRR of RA 10586, a driver of a private motor vehicle with gross vehicle weight not exceeding 4,500 kilograms who has BAC [blood alcohol concentration] of 0.05% or higher shall be conclusive proof that said driver isdriving under the influence of alcohol. Viewed from the prism of RA 10586, petitioner cannot plausibly be convicted of driving under the influence of alcohol for this obvious reason: he had not been tested beyond reasonable doubt, let alone conclusively, for reaching during the period material the threshold level of intoxication set under the law for DUIA, i.e., a BAC of 0.05% or over. Under Art. 22 of the RPC,34 penal laws shall be given retroactive insofar asthey are favorable to the accused. Section 19 of RA 10586 expressly modified Sec. 56(f) of RA 4136. Verily, even by force of Art. 22 ofthe RPC in relation to Sec. 3(e) of RA 10586 alone, petitioner could very well be acquitted for the charge of driving under the influence of alcohol, even if the supposed inculpatory act occurred in 2006. Parenthetically, the Office of the City Prosecutor of Manila, per its Resolution 35 of November 21, 2006 found, on the strength of another physical examination from the same Ospital ng Maynila conducted by Dr. Devega on the petitioner on the same day,June 12, but later hour, probable cause for slight physical injuries against P/Insp. Aguilar et al. That finding to be sure tends to indicate that the police indeed man handled the petitioner and belied, or at least cancelled out, the purported Dr. Balucating’s finding as to petitioner’s true state. The Court must underscore at this juncture that the petitioner, after the unfortunate incident, lost no time incommencing the appropriate criminal charges against the police officers and Dr. Balucating, whomhe accused of issuing Exh. "F" even without examining him. The element of immediacy in the filing lends credence to petitioner’s profession of innocence, particularly of the charge of disobeying lawful order or resisting arrest. Certainly not to be overlooked is the fact that petitioner,in so filing his complaint, could not have possibly been inspired by improper motive, the police officers being complete strangers to him and vice versa. Withal, unless he had a legitimate grievance, it is difficult to accept the notion that petitioner would expose himself to harm’s way by filing a harassment criminal suit against policemen. Conviction must come only after it survives the test of reason.36 It is thus required that every circumstance favoring one’s innocence be duly taken into account.37 Given the deviation of the police officers from the standard and usual procedure in dealing with traffic violation by perceived drivers under the influence of alcoholand executing an arrest, the blind reliance and simplistic invocation by the trial court and the CA on the presumption of regularity in the conduct of police duty is clearly misplaced. As stressed in People v. Ambrosio, 38 the presumption of regularity is merely just that, a presumption disputable by contrary proof and which when challenged by the evidence cannot be regarded as binding truth. And to be sure, this presumption alone cannot preponderate over the presumption of innocence that prevails if not overcome by proof that obliterates all doubts as to the offender’s culpability. In the present case, the absence of conclusive proof being under the influence of liquor while driving coupled with the forceful manner the police yanked petitioner out of his vehicle argues against or at least cast doubt on the finding of guilt for drunken driving and resisting arrest. In case of doubt as to the moral certainty of culpability, the balance tips in favor of innocence or at least infavor of the milderform of criminal liability. This is as it should be. For, it is basic, almost elementary, that the burden of proving the guiltof an accused lies on the prosecution which must rely on the strength of its evidence and noton the weakness of the defense. WHEREFORE, in light of all the foregoing, the appealed Decision and Resolution of the Court of Appeals in CA-G.R. CR No. 33567 are hereby REVERSED and SET ASI:OE. Petitioner is hereby acquitted of the crimes charged in Criminal Case No. 052527-CN and Criminal Case No. 052528CN. No pronouncement as to costs. 38

G.R. No. 112170 April 10, 1996 CESARIO URSUA, petitioner, vs. COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES, respondents. BELLOSILLO, J.:p This is a petition for review of the decision of the Court of Appeals which affirmed the conviction of petitioner by the Regional Trial Court of Davao City for violation of Sec. 1 of C.A. No. 142, as amended by R.A. No. 6085, otherwise known as "An Act to Regulate the Use of Aliases". 1 Petitioner Cesario Ursua was a Community Environment and Natural Resources Officer assigned in Kidapawan, Cotabato. On 9 May 1989 the Provincial Governor of Cotabato requested the Office of the Ombudsman in Manila to conduct an investigation on a complaint for bribery, dishonesty, abuse of authority and giving of unwarranted benefits by petitioner and other officials of the Department of Environment and Natural Resources. The complaint was initiated by the Sangguniang Panlalawigan of Cotabato through a resolution advising the Governor to report the involvement of petitioner and others in the illegal cutting of mahogany trees and hauling of illegally-cut logs in the area. 2 On 1 August 1989 Atty. Francis Palmones, counsel for petitioner, wrote the Office of the Ombudsman in Davao City requesting that he be furnished copy of the complaint against petitioner. Atty. Palmones then asked his client Ursua to take his letter-request to the Office of the Ombudsman because his law firm's messenger, Oscar Perez, had to attend to some personal matters. Before proceeding to the Office of the Ombudsman petitioner talked to Oscar Perez and told him that he was reluctant to personally ask for the document since he was one of the respondents before the Ombudsman. However, Perez advised him not to worry as he could just sign his (Perez) name if ever he would be required to acknowledge receipt of the complaint. 3 When petitioner arrived at the Office of the Ombudsman in Davao City he was instructed by the security officer to register in the visitors' logbook. Instead of writing down his name petitioner wrote the name "Oscar Perez" after which he was told to proceed to the Administrative Division for the copy of the complaint he needed. He handed the letter of Atty. Palmones to the Chief of the Administrative Division, Ms. Loida Kahulugan, who then gave him a copy of the complaint, receipt of which he acknowledged by writing the name "Oscar Perez." 4 Before petitioner could leave the premises he was greeted by an acquaintance, Josefa Amparo, who also worked in the same office. They conversed for a while then he left. When Loida learned that the person who introduced himself as "Oscar Perez" was actually petitioner Cesario Ursua, a customer of Josefa Amparo in her gasoline station, Loida reported the matter to the Deputy Ombudsman who recommended that petitioner be accordingly charged. On 18 December 1990, after the prosecution had completed the presentation of its evidence, petitioner without leave of court filed a demurrer to evidence alleging that the failure of the prosecution to prove that his supposedalias was different from his registered name in the local civil registry was fatal to its cause. Petitioner argued that no document from the local civil registry was presented to show the registered name of accused which according to him was a condition sine qua non for the validity of his conviction. The trial court rejected his contentions and found him guilty of violating Sec. 1 of C.A. No. 142 as amended by R.A. No. 6085. He was sentenced to suffer a prison term of one (1) year and one (1) day of prision correccionalminimum as minimum, to four (4) years of prision correccional medium as maximum, with all the accessory penalties provided for by law, and to pay a fine of P4,000.00 plus costs. Petitioner appealed to the Court of Appeals.

39

On 31 May 1993 the Court of Appeals affirmed the conviction of petitioner but modified the penalty by imposing an indeterminate term of one (1) year as minimum to three (3) years as maximum and a fine of P5,000.00. Petitioner now comes to us for review of his conviction as he reasserts his innocence. He contends that he has not violated C.A. No. 142 as amended by R.A. No. 6085 as he never used any alias name; neither is "Oscar Perez" hisalias. An alias, according to him, is a term which connotes the habitual use of another name by which a person is also known. He claims that he has never been known as "Oscar Perez" and that he only used such name on one occasion and it was with the express consent of Oscar Perez himself. It is his position that an essential requirement for a conviction under C.A. No. 142 as amended by R.A. No. 6085 has not been complied with when the prosecution failed to prove that his supposed alias was different from his registered name in the Registry of Births. He further argues that the Court of Appeals erred in not considering the defense theory that he was charged under the wrong law. 5 Time and again we have decreed that statutes are to be construed in the light of the purposes to be achieved and the evils sought to be remedied. Thus in construing a statute the reason for its enactment should be kept in mind and the statute should be construed with reference to the intended scope and purpose. 6 The court may consider the spirit and reason of the statute, where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the lawmakers. 7 For a clear understanding of the purpose of C.A. No. 142 as amended, which was allegedly violated by petitioner, and the surrounding circumstances under which the law was enacted, the pertinent provisions thereof, its amendments and related statutes are herein cited. C.A. No. 142, which was approved on 7 November 1936, and before its amendment by R.A. No. 6085, is entitled An Act to Regulate the Use of Aliases. It provides as follows: Sec. 1. Except as a pseudonym for literary purposes, no person shall use any name different from the one with which he was christened or by which he has been known since his childhood, or such substitute name as may have been authorized by a competent court. The name shall comprise the patronymic name and one or two surnames. Sec. 2. Any person desiring to use an alias or aliases shall apply for authority therefor in proceedings like those legally provided to obtain judicial authority for a change of name. Separate proceedings shall be had for each alias, and each new petition shall set forth the original name and the alias oraliases for the use of which judicial authority has been, obtained, specifying the proceedings and the date on which such authority was granted. Judicial authorities for the use of aliases shall be recorded in the proper civil register . . . . The above law was subsequently amended by R.A. No. 6085, approved on 4 August 1969. As amended, C.A. No. 142 now reads: Sec. 1. Except as a pseudonym solely for literary, cinema, television, radio or other entertainment purposes and in athletic events where the use of pseudonym is a normally accepted practice, no person shall use any name different from the one with which he was registered at birth in the office of the local civil registry or with which he was baptized for the first time, or in case of all alien, with which he was registered in the bureau of immigration upon entry; or such substitute name as may have been authorized by a competent court: Provided, That persons whose births have not been registered in any local civil registry and who have not been baptized, have one year from the approval of this act within which to register their names in the civil registry of their residence. The name shall comprise the patronymic name and one or two surnames. Sec. 2. Any person desiring to use an alias shall apply for authority therefor in proceedings like those legally provided to obtain judicial authority for a change of 40

name and no person shall be allowed to secure such judicial authority for more than one alias. The petition for an alias shall set forth the person's baptismal and family name and the name recorded in the civil registry, if different, his immigrant's name, if an alien, and his pseudonym, if he has such names other than his original or real name, specifying the reason or reasons for the desired alias. The judicial authority for the use of alias, the Christian name and the alien immigrant's name shall be recorded in the proper local civil registry, and no person shall use any name or names other than his original or real name unless the same is or are duly recorded in the proper local civil registry. The objective and purpose of C.A. No. 142 have their origin and basis in Act No. 3883, An Act to Regulate the Use in Business Transactions of Names other than True Names, Prescribing the Duties of the Director of the Bureau of Commerce and Industry in its Enforcement, Providing Penalties for Violations thereof, and for other purposes, which was approved on 14 November 1931 and amended by Act No. 4147, approved on 28 November 1934. 8The pertinent provisions of Act No. 3883 as amended follow — Sec. 1. It shall be unlawful for any person to use or sign, on any written or printed receipt including receipt for tax or business or any written or printed contract not verified by a notary public or on any written or printed evidence of any agreement or business transactions, any name used in connection with his business other than his true name, or keep conspicuously exhibited in plain view in or at the place where his business is conducted, if he is engaged in a business, any sign announcing a firm name or business name or style without first registering such other name, or such firm name, or business name or style in the Bureau of Commerce together with his true name and that of any other person having a joint or common interest with him in such contract, agreement, business transaction, or business . . . . For a bit of history, the enactment of C.A. No. 142 as amended was made primarily to curb the common practice among the Chinese of adopting scores of different names and aliases which created tremendous confusion in the field of trade. Such a practice almost bordered on the crime of using fictitious names which for obvious reasons could not be successfully maintained against the Chinese who, rightly or wrongly, claimed they possessed a thousand and one names. C.A. No. 142 thus penalized the act of using an alias name, unless such alias was duly authorized by proper judicial proceedings and recorded in the civil register. 9 In Yu Kheng Chiau v. Republic 10 the Court had occasion to explain the meaning, concept and ill effects of the use of analias within the purview of C.A. No. 142 when we ruled — There can hardly be any doubt that petitioner's use of alias "Kheng Chiau Young" in addition to his real name "Yu Cheng Chiau" would add to more confusion. That he is known in his business, as manager of the Robert Reid, Inc., by the former name, is not sufficient reason to allow him its use. After all, petitioner admitted that he is known to his associates by both names. In fact, the Anselmo Trinidad, Inc., of which he is a customer, knows him by his real name. Neither would the fact that he had encountered certain difficulties in his transactions with government offices which required him to explain why he bore two names, justify the grant of his petition, for petitioner could easily avoid said difficulties by simply using and sticking only to his real name "Yu Kheng Chiau." The fact that petitioner intends to reside permanently in the Philippines, as shown by his having filed a petition for naturalization in Branch V of the above-mentioned court, argues the more against the grant of his petition, because if naturalized as a Filipino citizen, there would then be no necessity for his further using said alias, as it would be contrary to the usual Filipino way and practice of using only one name in ordinary as well as business transactions. And, as the lower court correctly observed, if he believes (after he is naturalized) that it would be better for him to write his name following the Occidental method, "he can easily file a petition for change of name, so

41

that in lieu of the name "Yu Kheng Chian," he can, abandoning the same, ask for authority to adopt the name Kheng Chiau Young." All things considered, we are of the opinion and so hold, that petitioner has not shown satisfactory proper and reasonable grounds under the aforequoted provisions of Commonwealth Act No. 142 and the Rules of Court, to warrant the grant of his petition for the use of an alias name. Clearly therefore an alias is a name or names used by a person or intended to be used by him publicly and habitually usually in business transactions in addition to his real name by which he is registered at birth or baptized the first time or substitute name authorized by a competent authority. A man's name is simply the sound or sounds by which he is commonly designated by his fellows and by which they distinguish him but sometimes a man is known by several different names and these are known as aliases. 11 Hence, the use of a fictitious name or a different name belonging to another person in a single instance without any sign or indication that the user intends to be known by this name in addition to his real name from that day forth does not fall within the prohibition contained in C.A. No. 142 as amended. This is so in the case at bench. It is not disputed that petitioner introduced himself in the Office of the Ombudsman as "Oscar Perez," which was the name of the messenger of his lawyer who should have brought the letter to that office in the first place instead of petitioner. He did so while merely serving the request of his lawyer to obtain a copy of the complaint in which petitioner was a respondent. There is no question then that "Oscar Perez" is not an alias name of petitioner. There is no evidence showing that he had used or was intending to use that name as his second name in addition to his real name. The use of the name "Oscar Perez" was made by petitioner in an isolated transaction where he was not even legally required to expose his real identity. For, even if he had identified himself properly at the Office of the Ombudsman, petitioner would still be able to get a copy of the complaint as a matter of right, and the Office of the Ombudsman could not refuse him because the complaint was part of public records hence open to inspection and examination by anyone under the proper circumstances. While the act of petitioner may be covered by other provisions of law, such does not constitute an offense within the concept of C.A. No. 142 as amended under which he is prosecuted. The confusion and fraud in business transactions which the anti-alias law and its related statutes seek to prevent are not present here as the circumstances are peculiar and distinct from those contemplated by the legislature in enacting C.A. No. 142 as amended. There exists a valid presumption that undesirable consequences were never intended by a legislative measure and that a construction of which the statute is fairly susceptible is favored, which will avoid all objectionable, mischievous, indefensible, wrongful, evil and injurious consequences. 12 Moreover, as C.A. No. 142 is a penal statute, it should be construed strictly against the State and in favor of the accused. 13 The reason for this principle is the tenderness of the law for the rights of individuals and the object is to establish a certain rule by conformity to which mankind would be safe, and the discretion of the court limited. 14 Indeed, our mind cannot rest easy on the proposition that petitioner should be convicted on a law that does not clearly penalize the act done by him. WHEREFORE, the questioned decision of the Court of Appeals affirming that of the Regional Trial Court of Davao City is REVERSED and SET ASIDE and petitioner CESARIO URSUA is ACQUITTED of the crime charged. SO ORDERED.

G.R. Nos. 164368-69

April 2, 2009

PEOPLE OF THE PHILIPPINES, Petitioner, vs. JOSEPH EJERCITO ESTRADA and THE HONORABLE SPECIAL DIVISION OF THE SANDIGANBAYAN,Respondents.

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DECISION BRION, J.: The People of the Philippines (the People) filed this Petition for Review on Certiorari 1 to seek the reversal of the Sandiganbayan’s Joint Resolution dated July 12, 2004, granting respondent Joseph Ejercito Estrada’s (Estrada) demurrer to evidence in Crim. Case No. 26565.2 THE FACTS On April 4, 2001, an Information for plunder (docketed as Crim. Case No. 26558) was filed with the Sandiganbayan against respondent Estrada, among other accused. A separate Information for illegal use of alias, docketed as Crim. Case No. 26565, was likewise filed against Estrada. The Amended Information in Crim. Case No. 26565 reads: That on or about 04 February 2000, or sometime prior or subsequent thereto, in the City of Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then President of the Republic of the Philippines, without having been duly authorized, judicially or administratively, taking advantage of his position and committing the offense in relation to office, i.e., in order to CONCEAL THE ill-gotten wealth HE ACQUIRED during his tenure and his true identity as THE President of the Republic of the Philippines, did then and there, willfully, unlawfully and criminally REPRESENT HIMSELF AS ‘JOSE VELARDE’ IN SEVERAL TRANSACTIONS AND use and employ the SAID alias "Jose Velarde" which IS neither his registered name at birth nor his baptismal name, in signing documents with Equitable PCI Bank and/or other corporate entities. CONTRARY TO LAW. Crim. Case Nos. 26565 and 26558 were subsequently consolidated for joint trial. Still another Information, this time for perjury and docketed as Crim. Case No. 26905, was filed with the Sandiganbayan against Estrada. This was later consolidated, too, with Crim. Cases No. 26558 and 26565. Estrada was subsequently arrested on the basis of a warrant of arrest that the Sandiganbayan issued. On January 11, 2005, we ordered the creation of a Special Division in the Sandiganbayan to try, hear, and decide the charges of plunder and related cases (illegal use of alias and perjury) against respondent Estrada.3 At the trial, the People presented testimonial and documentary evidence to prove the allegations of the Informations for plunder, illegal use of alias, and perjury. The People’s evidence for the illegal alias charge, as summarized by the Sandiganbayan, consisted of: A. The testimonies of Philippine Commercial and Industrial Bank (PCIB) officers Clarissa G. Ocampo (Ocampo) and Atty. Manuel Curato (Curato) who commonly declared that on February 4, 2000, Estrada opened a numbered trust account (Trust Account C-163) with PCIB and signed as "Jose Velarde" in the account opening documents; both Ocampo and Curato also testified that Aprodicio Lacquian and Fernando Chua were present on that occasion; B. (1) The testimony of PCIB-Greenhills Branch Manager Teresa Barcelan, who declared that a certain Baby Ortaliza (Ortaliza) transacted several times with her; that Ortaliza deposited several checks in PCIB Savings Account No. 0160-62502-5 under the account name "Jose Velarde" on the following dates (as evidenced by deposit receipts duly marked in evidence): a. 20 October 1999 (Exh. "MMMMM") b. 8 November 1999 (Exh. "LLLLL") c. 22 November 1999 (Exh. "NNNNN") d. 24 November 1999 (Exh. "OOOOO") 43

e. 25 November 1999 (Exh. "PPPPP") f. 20 December 1999 (Exh. "QQQQQ") g. 21 December 1999 (Exh. "RRRRR") h. 29 December 1999 (Exh. "SSSSS") i. 4 January 2000 (Exh. "TTTTT") j. 10 May 2000 (Exh. "UUUUU") k. 6 June 2000 (Exh. "VVVVV") l. 25 July 2000 (Exh. "WWWWW") (2) Documents duly identified by witnesses showing that Lucena Ortaliza was employed in the Office of the Vice President and, later on, in the Office of the President when Estrada occupied these positions and when deposits were made to the Jose Velarde Savings Account No. 0160-62502-5. The People filed its Formal Offer of Exhibits in the consolidated cases, which the Sandiganbayan admitted into evidence in a Resolution dated October 13, 2003. 4 The accused separately moved to reconsider the Sandiganbayan Resolution;5 the People, on the other hand, filed its Consolidated Comment/Opposition to the motions.6 The Sandiganbayan denied the motions in its Resolution dated November 17, 2003.7 After the People rested in all three cases, the defense moved to be allowed to file a demurrer to evidence in these cases.8 In its Joint Resolution dated March 10, 2004,9 the Sandiganbayan only granted the defense leave to file demurrers in Crim. Case Nos. 26565 (illegal use of alias) and 26905 (perjury). Estrada filed separate Demurrers to Evidence for Crim. Case Nos. 26565 and 26905.10 His demurrer to evidence for Crim. Case No. 26565 (illegal use of alias) was anchored on the following grounds11: 1. Of the thirty-five (35) witnesses presented by the prosecution, only two (2) witnesses, Ms. Clarissa Ocampo and Atty. Manuel Curato, testified that on one occasion (4 February 2000), they saw movant use the name "Jose Velarde"; 2. The use of numbered accounts and the like was legal and was prohibited only in late 2001 as can be gleaned from Bangko Sentral Circular No. 302, series of 2001, dated 11 October 2001; 3. There is no proof of public and habitual use of alias as the documents offered by the prosecution are banking documents which, by their nature, are confidential and cannot be revealed without following proper procedures; and 4. The use of alias is absorbed in plunder. The People opposed the demurrers through a Consolidated Opposition that presented the following arguments:12 1. That the use of fictitious names in bank transaction was not expressly prohibited until BSP No. 302 is of no moment considering that as early as Commonwealth Act No. 142, the use of alias was already prohibited. Movant is being prosecuted for violation of C.A. No. 142 and not BSP Circular No. 302; 2. Movant’s reliance on Ursua vs. Court of Appeals (256 SCRA 147 [1996]) is misplaced; 3. Assuming arguendo that C.A. No. 142, as amended, requires publication of the alias and the habitual use thereof, the prosecution has presented more than sufficient evidence in this regard to convict movant for illegal use of alias; and 4. Contrary to the submission of movant, the instant case of illegal use of alias is not absorbed in plunder. Estrada replied to the Consolidated Opposition through a Consolidated Reply Opposition. THE ASSAILED SANDIGANBAYAN’S RULING The Sandiganbayan issued on July 12, 2004 the Resolution now assailed in this petition. The salient points of the assailed resolution are: 44

First – the coverage of Estrada’s indictment. The Sandiganbayan found that the only relevant evidence for the indictment are those relating to what is described in the Information – i.e., the testimonies and documents on the opening of Trust Account C-163 on February 4, 2000. The Sandiganbayan reasoned out that the use of the disjunctive "or" between "on or about 04 February 2000" and "sometime prior or subsequent thereto" means that the act/s allegedly committed on February 4, 2000 could have actually taken place prior to or subsequent thereto; the use of the conjunctive was simply the prosecution’s procedural tool to guard against any variance between the date stated in the Information and that proved during the trial in a situation in which time was not a material ingredient of the offense; it does not mean and cannot be read as a roving commission that includes acts and/or events separate and distinct from those that took place on the single date "on or about 04 February 2000 or sometime prior or subsequent thereto." The Sandiganbayan ruled that the use of the disjunctive "or" prevented it from interpreting the Information any other way. Second – the People’s failure to present evidence that proved Estrada’s commission of the offense. The Sandiganbayan found that the People failed to present evidence that Estrada committed the crime punished under Commonwealth Act No. 142, as amended by Republic Act (R.A.) No. 6085 (CA 142), as interpreted by the Supreme Court in Ursua v. Court of Appeals. 13 It ruled that there is an illegal use of alias within the context of CA 142 only if the use of the alias is public and habitual. In Estrada’s case, the Sandiganbayan noted, the application of the principles was not as simple because of the complications resulting from the nature of the transaction involved – the alias was used in connection with the opening of a numbered trust account made during the effectivity of R.A. No. 1405, as amended,14 and prior to the enactment of Republic R.A. No. 9160.15 Estrada did not publicly use the alias "Jose Velarde": a. Estrada’s use of the alias "Jose Velarde" in his dealings with Dichavez and Ortaliza after February 4, 2000 is not relevant in light of the conclusion that the acts imputed to Estrada under the Information were the act/s committed on February 4, 2000 only. Additionally, the phrase, "Estrada did … represent himself as ‘Jose Velarde’ in several transactions," standing alone, violates Estrada’s right to be informed of the nature and the cause of the accusation, because it is very general and vague. This phrase is qualified and explained by the succeeding phrase – "and use and employ the said alias ‘Jose Velarde’" – which "is neither his registered name at birth nor his baptismal name, in signing documents with Equitable PCI Bank and/or other corporate entities." Thus, Estrada’s representations before persons other than those mentioned in the Information are immaterial; Ortaliza and Dichavez do not fall within the "Equitable PCI Bank and/or other corporate entities" specified in the Information. Estrada’s representations with Ortaliza and Dichavez are not therefore covered by the indictment. b. The Sandiganbayan rejected the application of the principle in the law of libel that mere communication to a third person is publicity; it reasoned out that that the definition of publicity is not limited to the way it is defined under the law on libel; additionally, the application of the libel law definition is onerous to the accused and is precluded by the ruling in Ursua that CA No. 142, as a penal statute, should be construed strictly against the State and favorably for the accused. It ruled that the definition under the law on libel, even if it applies, considers a communication to a third person covered by the privileged communication rule to be non-actionable. Estrada’s use of the alias in front of Ocampo and Curato is one such privileged communication under R.A. No. 1405, as amended. The Sandiganbayan said: Movant’s act of signing "Jose Velarde" in bank documents being absolutely confidential, the witnessing thereof by bank officers who were likewise sworn to secrecy by the same law cannot be considered as ‘public’ as to fall within the ambit of CA 142 as amended. On account of the absolute confidentiality of the transaction, it cannot be said that movant intended to be known by this name in addition to his real name. Confidentiality and secrecy negate publicity. Ursua instructs: Hence, the use of a fictitious name or a different name belonging to another person in a single instance without any sign or indication that the user intends to be known by this name in

45

addition to his real name from that day forth does not fall within the prohibition in C.A. No. 142 as amended. c. The Sandiganbayan further found that the intention not to be publicly known by the name "Jose Velarde" is shown by the nature of a numbered account – a perfectly valid banking transaction at the time Trust Account C-163 was opened. The opening, too, of a numbered trust account, the Sandiganbayan further ruled, did not impose on Estrada the obligation to disclose his real identity – the obligation R.A. No. 6713 imposes is to file under oath a statement of assets and liabilities.16 Reading CA No. 142, R.A. No. 1405 and R.A. No. 6713 together, Estrada had the absolute obligation to disclose his assets including the amount of his bank deposits, but he was under no obligation at all to disclose the other particulars of the bank account (such as the name he used to open it). Third – the effect of the enactment of R.A. No. 9160.17 The Sandiganbayan said that the absolute prohibition in R.A. No. 9160 against the use of anonymous accounts, accounts under fictitious names, and all other similar accounts, is a legislative acknowledgment that a gaping hole previously existed in our laws that allowed depositors to hide their true identities. The Sandiganbayan noted that the prohibition was lifted from Bangko Sentral ng Pilipinas (BSP) Circular No. 251 dated July 7, 2000 – another confirmation that the opening of a numbered trust account was perfectly legal when it was opened on February 4, 2000. The Sandiganbayan ruled that the provisions of CA No. 142, as interpreted in Ursua, must necessarily be harmonized with the provisions of R.A. No.1405 and R.A. No. 9160 under the principle that every statute should be construed in a way that will harmonize it with existing laws. A reasonable scrutiny, the Sandiganbayan said, of all these laws in relation to the present case, led it to conclude that the use of an alias within the context of a bank transaction (specifically, the opening of a numbered account made before bank officers) is protected by the secrecy provisions of R.A. No. 1405, and is thus outside the coverage of CA No. 142 until the passage into law of R.A. No. 9160. THE PETITION The People filed this petition raising the following issues: 1. Whether the court a quo gravely erred and abused its discretion in dismissing Crim. Case No. 26565 and in holding that the use by respondent Joseph Estrada of his alias "Jose Velarde" was not public despite the presence of Messrs. Aprodicio Laquian and Fernando Chua on 4 February 2000; 2. Whether the court a quo gravely erred and abused its discretion in dismissing Crim. Case No. 26565 and in holding that the use by respondent Joseph Estrada of his alias "Jose Velarde" was allowable under banking rules, despite the clear prohibition under Commonwealth Act No. 142; 3. Whether the court a quo gravely erred and abused its discretion in dismissing Crim. Case No. 26565 and in applying R.A. No. 1405 as an exception to the illegal use of alias punishable under Commonwealth Act No. 142; 4. Whether the alleged harmonization and application made by the court a quo of R.A. No.1405 and Commonwealth Act No. 142 were proper; 5. Whether the court a quo gravely erred and abused its discretion in limiting the coverage of the amended Information in Crim. Case No. 26565 to the use of the alias "Jose Velarde" by respondent Joseph Estrada on February 4, 2000; 6. Whether the court a quo gravely erred and abused its discretion in departing from its earlier final finding on the non-applicability of Ursua v. Court of Appeals and forcing its application to the instant case. THE COURT’S RULING 46

The petition has no merit. The Law on Illegal Use of Alias and the Ursua Ruling Sections 1 and 2 of CA No. 142, as amended, read: Section 1. Except as a pseudonym solely for literary, cinema, television, radio or other entertainment purposes and in athletic events where the use of pseudonym is a normally accepted practice, no person shall use any name different from the one with which he was registered at birth in the office of the local civil registry or with which he was baptized for the first time, or in case of an alien, with which he was registered in the bureau of immigration upon entry; or such substitute name as may have been authorized by a competent court: Provided, That persons whose births have not been registered in any local civil registry and who have not been baptized, have one year from the approval of this act within which to register their names in the civil registry of their residence. The name shall comprise the patronymic name and one or two surnames. Section 2. Any person desiring to use an alias shall apply for authority therefor in proceedings like those legally provided to obtain judicial authority for a change of name and no person shall be allowed to secure such judicial authority for more than one alias. The petition for an alias shall set forth the person's baptismal and family name and the name recorded in the civil registry, if different, his immigrant's name, if an alien, and his pseudonym, if he has such names other than his original or real name, specifying the reason or reasons for the desired alias. The judicial authority for the use of alias, the Christian name and the alien immigrant's name shall be recorded in the proper local civil registry, and no person shall use any name or names other than his original or real name unless the same is or are duly recorded in the proper local civil registry. How this law is violated has been answered by the Ursua definition of an alias – "a name or names used by a person or intended to be used by him publicly and habitually usually in business transactions in addition to his real name by which he is registered at birth or baptized the first time or substitute name authorized by a competent authority." There must be, in the words of Ursua, a "sign or indication that the user intends to be known by this name (the alias) in addition to his real name from that day forth … [for the use of alias to] fall within the prohibition contained in C.A. No. 142 as amended."18 Ursua further relates the historical background and rationale that led to the enactment of CA No. 142, as follows: The enactment of C.A. No. 142 was made primarily to curb the common practice among the Chinese of adopting scores of different names and aliases which created tremendous confusion in the field of trade. Such a practice almost bordered on the crime of using fictitious names which for obvious reasons could not be successfully maintained against the Chinese who, rightly or wrongly, claimed they possessed a thousand and one names. C.A. No. 142 thus penalized the act of using an alias name, unless such alias was duly authorized by proper judicial proceedings and recorded in the civil register.19 Following the doctrine of stare decisis,20 we are guided by the Ursua ruling on how the crime punished under CA No. 142 may be committed. Close adherence to this ruling, in other words, is unavoidable in the application of and the determination of criminal liability under CA No. 142. Among the many grounds the People invokes to avoid the application of the Ursua ruling proceeds from Estrada’s position in the government; at the time of the commission of the offense, he was the President of the Republic who is required by law to disclose his true name. We do not find this argument sufficient to justify a distinction between a man on the street, on one hand, and the President of the Republic, on the other, for purposes of applying CA No. 142. In the first place, the law does not make any distinction, expressly or impliedly, that would justify a differential treatment. CA No. 142 as applied to Estrada, in fact allows him to use his cinema or screen name of Joseph Estrada, which name he has used even when he was already the President of the Philippines. Even the petitioner has acquiesced to the use of the screen name of the accused, as shown by the title of the present petition. Additionally, any distinction we make based on the People’s claim unduly 47

prejudices Estrada; this is proscribed by the Ursua dictum that CA No. 142, as a penal statute, should be construed strictly against the State and in favor of the accused. 21 The mode of violating CA No. 142 is therefore the same whoever the accused may be. The People also calls our attention to an earlier Sandiganbayan ruling (Resolution dated February 6, 2002) denying Estrada’s motion to quash the Information. This earlier Resolution effectively rejected the application of Ursua under the following tenor: The use of the term "alias" in the Amended Information in itself serves to bring this case outside the ambit of the ruling in the case of Ursua v. Court of Appeals (256 SCRA 147 [1996]), on which the accused heavily relies in his motion to quash. The term "alias" means "otherwise known as" (Webster Third New International Dictionary, 1993 ed., p. 53). The charge of using an "alias" logically implies that another name has been used publicly and habitually. Otherwise, he will not be known by such name. In any case, the amended information adverts to "several transactions" and signing of documents with the Equitable PCI Bank and/or other corporate entities where the above-mentioned alias was allegedly employed by the accused. The facts alleged in the information are distinctly different from facts established in the Ursua case where another name was used by the accused in a single instance without any sign or indication that that [sic] he intended to be known from that day by this name in addition to his real name.22 The People argues that the Sandiganbayan gravely abused its discretion in applying Ursua notwithstanding this earlier final ruling on its non-applicability – a ruling that binds the parties in the present case. The People thus claims that the Sandiganbayan erred to the point of gravely abusing its discretion when it resurrected the application of Ursua, resulting in the reversal of its earlier final ruling. We find no merit in this argument for two reasons. First, the cited Sandiganbayan resolution is a mere interlocutory order – a ruling denying a motion to quash23 – that cannot be given the attributes of finality and immutability that are generally accorded to judgments or orders that finally dispose of the whole, of or particular matters in, a case.24 The Sandiganbayan resolution is a mere interlocutory order because its effects would only be provisional in character, and would still require the issuing court to undertake substantial proceedings in order to put the controversy to rest.25 It is basic remedial law that an interlocutory order is always under the control of the court and may be modified or rescinded upon sufficient grounds shown at any time before final judgment.26 Perez v. Court of Appeals,27 albeit a civil case, instructively teaches that an interlocutory order carries no res adjudicata effects. Says Perez: The Decision in CA-G.R. No. 10415 having resolved only an interlocutory matter, the principle of res judicatacannot be applied in this case. There can be no res judicata where the previous order in question was not an order or judgment determinative of an issue of fact pending before the court but was only an interlocutory order because it required the parties to perform certain acts for final adjudication. In this case, the lifting of the restraining order paved the way for the possession of the fishpond on the part of petitioners and/or their representatives pending the resolution of the main action for injunction. In other words, the main issue of whether or not private respondent may be considered a sublessee or a transferee of the lease entitled to possess the fishpond under the circumstances of the case had yet to be resolved when the restraining order was lifted.28 Second, in the earlier motion to quash, the Sandiganbayan solely looked at the allegations of the Information to determine the sufficiency of these allegations and did not consider any evidence aliunde. This is far different from the present demurrer to evidence where the Sandiganbayan had a fuller view of the prosecution’s case, and was faced with the issue of whether the prosecution’s evidence was sufficient to prove the allegations of the Information. Under these differing views, the Sandiganbayan may arrive at a different conclusion on the application of Ursua, the leading case in the application of CA 142, and the change in ruling is not per se indicative of grave abuse of discretion. That there is no error of law is strengthened by our consideration of the Sandiganbayan ruling on the application of Ursua.

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In an exercise of caution given Ursua’s jurisprudential binding effect, the People also argues in its petition that Estrada’s case is different from Ursua’s for the following reasons: (1) respondent Estrada used and intended to continually use the alias "Jose Velarde" in addition to the name "Joseph Estrada"; (2) Estrada’s use of the alias was not isolated or limited to a single transaction; and (3) the use of the alias "Jose Velarde" was designed to cause and did cause "confusion and fraud in business transactions" which the anti-alias law and its related statutes seek to prevent. The People also argues that the evidence it presented more than satisfied the requirements of CA No. 142, as amended, and Ursua, as it was also shown or established that Estrada’s use of the alias was public. In light of our above conclusions and based on the parties’ expressed positions, we shall now examine within the Ursua framework the assailed Sandiganbayan Resolution granting the demurrer to evidence. The prosecution has the burden of proof to show that the evidence it presented with the Sandiganbayan satisfied the Ursua requirements, particularly on the matter of publicity and habituality in the use of an alias. What is the coverage of the indictment? The People argues that the Sandiganbayan gravely erred and abused its discretion in limiting the coverage of the amended Information in Crim. Case No. 26565 to Estrada’s use of the alias "Jose Velarde" on February 4, 2000. It posits that there was a main transaction – one that took place on February 4, 2000 – but there were other transactions covered by the phrase "prior to or subsequent thereto; the Information specifically referred to "several transactions" … "with Equitable PCI Bank and/or other corporate entities." To the People, the restrictive finding – that the phrase "prior to or subsequent thereto" is absorbed by the phrase "on or about 04 February 2000" – drastically amends the succeeding main allegations on the constitutive criminal acts by removing the plurality of both the transactions involved and the documents signed with various entities; there is the undeniable essential relationship between the allegations of the multiplicity of transactions, on one hand, and the additional antecedent of "prior to or subsequent thereto," on the other. It argues that the Sandiganbayan reduced the phrase "prior to or subsequent thereto" into a useless appendage, providing Estrada with a convenient and totally unwarranted escape route. The People further argues that the allegation of time is the least exacting in satisfying the constitutional requirement that the accused has to be informed of the accusation against him. Section 6 of Rule 110 of the Revised Rules of Court provides that an allegation of the approximate date of the commission of the offense will suffice, while Section 11 of the same Rule provides that it is not necessary to state in the complaint or information the precise date the offense was committed except when it is a material ingredient of the crime. This liberality allegedly shaped the time-tested rule that when the "time" given in the complaint is not of the essence of the offense, the time of the commission of the offense does not need to be proven as alleged, and that the complaint will be sustained if the proof shows that the offense was committed at any time within the period of the statute of limitations and before the commencement of the action (citing People v. Bugayong [299 SCRA 528, 537] that in turn cited US v. Smith [3 Phil. 20, 22]). Since allegations of date of the commission of an offense are liberally interpreted, the People posits that the Sandiganbayan gravely abused its discretion in disregarding the additional clause "prior to or subsequent thereto"; under the liberality principle, the allegations of the acts constitutive of the offense finally determine the sufficiency of the allegations of time. The People thus claims that no surprise could have taken place that would prevent Estrada from properly defending himself; the information fully notified him that he was being accused of using the alias Jose Velarde in more than just one instance. We see no merit in these arguments. At its core, the issue is constitutional in nature – the right of Estrada to be informed of the nature and cause of the accusation against him. Under the provisions of the Rules of Court implementing this constitutional right, 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 in the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.29 As to the cause of accusation, the acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute, but in 49

terms sufficient to enable a person of common understanding to know the offense charged and the qualifying and aggravating circumstances, and for the court to pronounce judgment. 30 The date of the commission of the offense need not be precisely stated in the complaint or information except when the precise date is a material ingredient of the offense. The offense may be alleged to have been committed on a date as near as possible to the actual date of its commission.31 The information must at all times embody the essential elements of the crime charged by setting forth the facts and circumstances that bear on the culpability and liability of the accused so that he can properly prepare for and undertake his defense.32 In short, the allegations in the complaint or information, as written, must fully inform or acquaint the accused – the primary reader of and the party directly affected by the complaint or information – of the charge/s laid. The heretofore cited Information states that "… on or about 04 February 2000, or sometime prior or subsequent thereto, in the City of Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused [did] … willfully, unlawfully and criminally REPRESENT HIMSELF AS ‘JOSE VELARDE’ IN SEVERAL TRANSACTIONS AND use and employ the SAID alias "Jose Velarde" which IS neither his registered name at birth nor his baptismal name, in signing documents with Equitable PCI Bank and/or other corporate entities." We fully agree with the disputed Sandiganbayan’s reading of the Information, as this was how the accused might have similarly read and understood the allegations in the Information and, on this basis, prepared his defense. Broken down into its component parts, the allegation of time in the Information plainly states that (1) ON February 4, 2000; (2) OR before February 4, 2000; (3) OR sometime prior or subsequent to February 4, 2000, in the City of Manila, Estrada represented himself as "Jose Velarde" in several transactions in signing documents with Equitable PCI Bank and/or other corporate entities. Under this analysis, the several transactions involving the signing of documents with Equitable PCI Bank and/or other corporate entities all had their reference to February 4, 2000; they were all made on or about or prior or subsequent to that date, thus plainly implying that all these transactions took place only on February 4, 2000 or on another single date sometime before or after February 4, 2000. To be sure, the Information could have simply said "on or about February 4, 2000" to capture all the alternative approximate dates, so that the phrase "sometime prior or subsequent thereto" would effectively be a surplusage that has no meaning separately from the "on or about" already expressed. This consequent uselessness of the "prior or subsequent thereto" phrase cannot be denied, but it is a direct and necessary consequence of the use of the "OR" between the two phrases and the "THERETO" that referred back to February 4, 2000 in the second phrase. Of course, the reading would have been very different (and would have been clearly in accord with the People’s present interpretation) had the Information simply used "AND" instead of "OR" to separate the phrases; the intent to refer to various transactions occurring on various dates and occasions all proximate to February 4, 2000 could not be disputed. Unfortunately for the People, the imprecision in the use of "OR" is the reality the case has to live with. To act contrary to this reality would violate Estrada’s right to be informed of the nature and cause of accusation against him; the multiple transactions on several separate days that the People claims would result in surprise and denial of an opportunity to prepare for Estrada, who has a right to rely on the single day mentioned in the Information. Separately from the constitutional dimension of the allegation of time in the Information, another issue that the allegation of time and our above conclusion raise relates to what act or acts, constituting a violation of the offense charged, were actually alleged in the Information.1avvphi1 The conclusion we arrived at necessarily impacts on the People’s case, as it deals a fatal blow on the People’s claim that Estrada habitually used the Jose Velarde alias. For, to our mind, the repeated use of an alias within a single day cannot be deemed "habitual," as it does not amount to a customary practice or use. This reason alone dictates the dismissal of the petition under CA No. 142 and the terms of Ursua. The issues the application and R.A. No. 9160.

of of

CA

publicity, numbered No. 142,

accounts, R.A. No.

and 1405,

50

We shall jointly discuss these interrelated issues. The People claims that even on the assumption that Ocampo and Curato are bank officers sworn to secrecy under the law, the presence of two other persons who are not bank officers – Aprodicio Laquian and Fernando Chua – when Estrada’s signed the bank documents as "Jose Velarde" amounted to a "public" use of an alias that violates CA No. 142. On the issue of numbered accounts, the People argues that to premise the validity of Estrada’s prosecution for violation of CA No. 142 on a mere banking practice is gravely erroneous, improper, and constitutes grave abuse of discretion; no banking law provision allowing the use of aliases in the opening of bank accounts existed; at most, it was allowed by mere convention or industry practice, but not by a statute enacted by the legislature. Additionally, that Estrada’s prosecution was supposedly based on BSP Circular No. 302 dated October 11, 2001 is wrong and misleading, as Estrada stands charged with violation of CA No. 142, penalized since 1936, and not with a violation of a mere BSP Circular. That the use of alias in bank transactions prior to BSP Circular No. 302 is allowed is inconsequential because as early as CA No. 142, the use of an alias (except for certain purposes which do not include banking) was already prohibited. Nothing in CA No. 142 exempted the use of aliases in banking transactions, since the law did not distinguish or limit its application; it was therefore grave error for the Sandiganbayan to have done so. Lastly on this point, bank regulations being mere issuances cannot amend, modify or prevail over the effective, subsisting and enforceable provision of CA No. 142. On the issue of the applicability of R.A. No. 1405 and its relationship with CA No. 142, that since nothing in CA No. 142 excuses the use of an alias, the Sandiganbayan gravely abused its discretion when it ruled that R.A. No. 1405 is an exception to CA No. 142’s coverage. Harmonization of laws, the People posits, is allowed only if the laws intended to be harmonized refer to the same subject matter, or are at least related with one another. The three laws which the Sandiganbayan tried to harmonize are not remotely related to one another; they each deal with a different subject matter, prohibits a different act, governs a different conduct, and covers a different class of persons, 33 and there was no need to force their application to one another. Harmonization of laws, the People adds, presupposes the existence of conflict or incongruence between or among the provisions of various laws, a situation not obtaining in the present case. The People posits, too, that R.A. No. 1405 does not apply to trust transactions, such as Trust Account No. C-163, as it applies only to traditional deposits (simple loans). A trust account, according to the People, may not be considered a deposit because it does not create the juridical relation of creditor and debtor; trust and deposit operations are treated separately and are different in legal contemplation; trust operation is separate and distinct from banking and requires a grant of separate authority, and trust funds are not covered by deposit insurance under the Philippine Deposit Insurance Corporation law (R.A. No. 3591, as amended). The People further argues that the Sandiganbayan’s conclusion that the transaction or communication was privileged in nature was erroneous – a congruent interpretation of CA No. 142 and R.A. No. 1405 shows that a person who signs in a public or private transaction a name or alias, other than his original name or the alias he is authorized to use, shall be held liable for violation of CA No. 142, while the bank employees are bound by the confidentiality of bank transactions except in the circumstances enumerated in R.A. No. 1405. At most, the People argues, the prohibition in R.A. No. 1405 covers bank employees and officers only, and not Estrada; the law does not prohibit Estrada from disclosing and making public his use of an alias to other people, including Ocampo and Curato, as he did when he made a public exhibit and use of the alias before Messrs. Lacquian and Chua. Finally, the People argues that the Sandiganbayan ruling that the use of an alias before bank officers does not violate CA No. 142 effectively encourages the commission of wrongdoing and the concealment of ill-gotten wealth under pseudonyms; it sustains an anomalous and prejudicial policy that uses the law to silence bank officials and employees from reporting the commission of crimes. The People contends that the law – R.A. No. 1405 – was not intended by the Legislature to be used as a subterfuge or camouflage for the commission of crimes and cannot be so interpreted; the law can only be interpreted, understood and applied so that right and justice would prevail.

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We see no merit in these arguments. We agree, albeit for a different reason, with the Sandiganbayan position that the rule in the law of libel – that mere communication to a third person is publicity – does not apply to violations of CA No. 142. Our close reading of Ursua – particularly, the requirement that there be intention by the user to be culpable and the historical reasons we cited above – tells us that the required publicity in the use of alias is more than mere communication to a third person; the use of the alias, to be considered public, must be made openly, or in an open manner or place, or to cause it to become generally known. In order to be held liable for a violation of CA No. 142, the user of the alias must have held himself out as a person who shall publicly be known under that other name. In other words, the intent to publicly use the alias must be manifest. To our mind, the presence of Lacquian and Chua when Estrada signed as Jose Velarde and opened Trust Account No. C-163 does not necessarily indicate his intention to be publicly known henceforth as Jose Velarde. In relation to Estrada, Lacquian and Chua were not part of the public who had no access to Estrada’s privacy and to the confidential matters that transpired in Malacañan where he sat as President; Lacquian was the Chief of Staff with whom he shared matters of the highest and strictest confidence, while Chua was a lawyer-friend bound by his oath of office and ties of friendship to keep and maintain the privacy and secrecy of his affairs. Thus, Estrada could not be said to have intended his signing as Jose Velarde to be for public consumption by the fact alone that Lacquian and Chua were also inside the room at that time. The same holds true for Estrada’s alleged representations with Ortaliza and Dichavez, assuming the evidence for these representations to be admissible. All of Estrada’s representations to these people were made in privacy and in secrecy, with no iota of intention of publicity. The nature, too, of the transaction on which the indictment rests, affords Estrada a reasonable expectation of privacy, as the alleged criminal act related to the opening of a trust account – a transaction that R.A. No. 1405 considers absolutely confidential in nature.34 We previously rejected, in Ejercito v. Sandiganbayan,35 the People’s nitpicking argument on the alleged dichotomy between bank deposits and trust transactions, when we said: The contention that trust accounts are not covered by the term "deposits," as used in R.A. 1405, by the mere fact that they do not entail a creditor-debtor relationship between the trustor and the bank, does not lie. An examination of the law shows that the term "deposits" used therein is to be understood broadly and not limited only to accounts which give rise to a creditor-debtor relationship between the depositor and the bank. The policy behind the law is laid down in Section 1: SECTION 1. It is hereby declared to be the policy of the Government to give encouragement to the people to deposit their money in banking institutions and to discourage private hoarding so that the same may be properly utilized by banks in authorized loans to assist in the economic development of the country. (Underscoring supplied) If the money deposited under an account may be used by bank for authorized loans to third persons, then such account, regardless of whether it creates a creditor-debtor relationship between the depositor and the bank, falls under the category of accounts which the law precisely seeks to protect for the purpose of boosting the economic development of the country. Trust Account No. 858 is, without doubt, one such account. The Trust Agreement between petitioner and Urban Bank provides that the trust account covers "deposit, placement or investment of funds" by Urban Bank for and in behalf of petitioner. The money deposited under Trust Account No. 858, was, therefore, intended not merely to remain with the bank but to be invested by it elsewhere. To hold that this type of account is not protected by R.A. 1405 would encourage private hoarding of funds that could otherwise be invested by bank in other ventures, contrary to the policy behind the law. Section 2 of the same law in fact even more clearly shows that the term "deposits" was intended to be understood broadly: 52

SECTION 2. All deposits of whatever nature with bank or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation. (Emphasis and underscoring supplied)1avvphi1 The phrase "of whatever nature" proscribes any restrictive interpretation of "deposits." Moreover, it is clear from the immediately quoted provision that, generally, the law applies not only to money which is deposited but also to those which are invested. This further shows that the law was not intended to apply only to "deposits" in the strict sense of the word.lawphil.net Otherwise, there would have been no need to add the phrase "or invested. Clearly, therefore, R.A. 1405 is broad enough to cover Trust Account No. 858.36 We have consistently ruled that bank deposits under R.A. No. 1405 (the Secrecy of Bank Deposits Law) are statutorily protected or recognized zones of privacy.37 Given the private nature of Estrada’s act of signing the documents as "Jose Velarde" related to the opening of the trust account, the People cannot claim that there was already a public use of alias when Ocampo and Curato witnessed the signing. We need not even consider here the impact of the obligations imposed by R.A. No.1405 on the bank officers; what is essentially significant is the privacy situation that is necessarily implied in these kinds of transactions. This statutorily guaranteed privacy and secrecy effectively negate a conclusion that the transaction was done publicly or with the intent to use the alias publicly. The enactment of R.A. No.9160, on the other hand, is a significant development only because it clearly manifests that prior to its enactment, numbered accounts or anonymous accounts were permitted banking transactions, whether they be allowed by law or by a mere banking regulation. To be sure, an indictment against Estrada using this relatively recent law cannot be maintained without violating the constitutional prohibition on the enactment and use of ex post facto laws. 38 We hasten to add that this holistic application and interpretation of these various laws is not an attempt to harmonize these laws. A finding of commission of the offense punished under CA No. 142 must necessarily rest on the evidence of the requisites for culpability, as amplified in Ursua. The application of R.A. No. 1405 is significant only because Estrada’s use of the alias was pursuant to a transaction that the law considers private or, at the very least, where the law guarantees a reasonable expectation of privacy to the parties to the transactions; it is at this point that R.A. No. 1405 tangentially interfaces with an indictment under CA 142. In this light, there is no actual frontal clash between CA No. 142 and R.A. No. 1405 that requires harmonization. Each operates within its own sphere, but must necessarily be read together when these spheres interface with one another. Finally, R.A. No. 9160, as a law of recent vintage in relation to the indictment against Estrada, cannot be a source or an influencing factor in his indictment. In finding the absence of the requisite publicity, we simply looked at the totality of the circumstances obtaining in Estrada’s use of the alias "Jose Velarde" vis-à-vis the Ursua requisites. We do not decide here whether Estrada’s use of an alias when he occupied the highest executive position in the land was valid and legal; we simply determined, as the Sandiganbayan did, whether he may be made liable for the offense charged based on the evidence the People presented. As with any other accused, his guilt must be based on the evidence and proof beyond reasonable doubt that a finding of criminal liability requires. If the People fails to discharge this burden, as they did fail in this case, the rule of law requires that we so declare. We do so now in this review and accordingly find no reversible error of law in the assailed Sandiganbayan ruling. WHEREFORE, premises considered, we DENY the petition for lack of merit. SO ORDERED.

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G.R. No. 183700

October 13, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. PABLITO ANDAYA y REANO, Accused-Appellant. DECISION BERSAMIN, J.: The non-presentation of the confidential informant as a witness does not ordinarily weaken the State's case against the accused. However, if the arresting lawmen arrested the accused based on the pre-arranged signal from the confidential informant who acted as the poseur buyer, his nonpresentation must be credibly explained and the transaction established by other ways in order to satisfy the quantum of proof beyond reasonable doubt because the arresting lawmen did not themselves participate in the buy-bust transaction with the accused. Antecedents On February 7, 2003, an information for violation of Section 5 of Republic Act No. 9165 1 (RA 9165) was filed charging Pablito Andaya y Reano (Andaya). The accusatory portion of the information reads: That on or about December 16, 2002 at around 9:50 o'clock in the evening at Brgy. San Jose Sico, Batangas City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there, willfully, unlawfully and feloniously, sell, dispense or deliver, more or less 0.09 gram(s) of Methamphetamine Hydrochloride (shabu), a dangerous drug, which is a clear violation of the above-cited law. CONTRARY TO LAW.2 Upon arraignment,3 Andaya pleaded not guilty to the charge. Thereafter, trial on the merits ensued. The CA summed up the versions of the parties, as follows:4 Five (5) witnesses were presented by the prosecution, namely: SPO4 Delfin Alea, SPO3 Nelio Lopez, SPO2 Danilo Mercado, SPO4 Protasio Marasigan and Jupri Delantar. SPO2 Delfin Alea testified that at about 8:00 o'clock in the evening of December 16, 2002, their asset who was conducting surveillance of Pablito Andaya in Barangay San Jose Sico, Batangas City, arrived at their station. Said asset reported that he had arranged to buy shabu from Pablito. A team composed of SPO1 Aguila, SPO1 Cabungcal, Eric de Chavez, PO1 Lindberg Yap, Edwalberto Villar and asset Bagsit was constituted to conduct a buy-bust. Two (2) pieces of P100.00 bills both duly marked "X" were recorded in the police blotter. Alea gave the marked bills to the asset. Upon reaching the designated place, the team members alighted from their vehicles and occupied different positions where they could see and observe the asset. The asset knocked on the door of Pablito's house. Pablito came out. Pablito and the asset talked briefly. The asset gave Pablito the marked money. The asset received something from appellant. The pre-arranged signal signifying consummation of the transaction was given. The team members approached Pablito and the asset, introduced themselves as police officers and arrested accused. He was brought to the police station. The arrival of the team was recorded in the police blotter. The merchandise handed by accused to the asset was sent to the Regional Crime Laboratory in Camp Vicente Lim, Canlubang, Laguna. The specimen was positive for methampethamine Hydrochloride (shabu), a dangerous drug. SPO2 Lopez received the person of the accused, the marked money and the item accused handed to the asset. Lopez prepared the request for laboratory examination. He also prepared the documents required for filing of the case with the Public Prosecutor. SPO2 Danilo Mercado recorded the marked bills in the police blotter before the buy-bust. Upon the team's return, the marked money and the merchandise from accused were turned over to SPO2

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Mercado. He prepared a complaint sheet. Thereafter, he turned over accused and the evidence to the Police Investigator. SPo4 Protacio Marasigan received a written request for laboratory examination of the subject merchandise. He brought the request to the crime laboratory in Laguna. Jupri Delantar, a Forensic Chemical Officer in Camp Vicente Lim, Laguna, conducted the examination. The merchandise tested positive for shabu. Accused-appellant denied the charge. He stated that at about 9: 15 in the evening of December 16, 2002 he was at home watching TV with his family when police officers arrived. When he opened the door, a police officer poked his gun at him. Somebody else held a long firearm. Pablito was handcuffed and brought outside. He refused to negotiate and asked for a warrant. The policemen searched the house, turned over the beddings and uncovered their furniture. No gun nor shabu was found. Pablito was brought to the police station and detained. After three (3) days he was released. He received a subpoena from the Public Prosecutor afterwards. His wife Crisanta, corroborated appellants' testimony. She added having told her husband about the loss of their cellphone and the money in his wallet. She was asked to produce P5,000.00 which she was unable to do. She was able to raise only P2,000.00. Judgment of the RTC On February 21, 2006, the Regional Trial Court, Branch 4, in Batangas City (R TC) rendered its judgment convicting Andaya as charged, and meted him the penalty of life imprisonment,5 viz: In the case at bar, the buy-bust operation conducted on the night of December 16, 2002 is supported by the police blotter wherein not only was the depaiiure and arrival of the operatives have been duly recorded but also the two (2) pieces of marked one hundred peso bills. The arrest of the accused was made after the police asset had given the pre-arranged signal outside his house. The marked money was recovered from the very hand of the accused while the deck of crystalline substances given to the asset upon the latter's handing over to the accused the marked money has been turned over to the police by the asset. The crystalline substance when examined at the police crime laboratory was found to contain methamphetamine hydrochloride a dangerous and prohibited drug and weighed 0.09 gram. These foregoing facts have been clearly testified to by the Prosecution witnesses who are members of the Philippine Integrated National Police Force stationed at Batangas City. No ill-motive has been imputed to any of these police officers prior to and at the time the herein accused was arrested on the night of December 16, 2002. The accused and his wife as a defense denied the sale of shabu that fateful night. There were allegations in their testimonies that the police demanded money from them. The wife of the accused even testified that she gave P 1,500.00 to the police officer who then eventually released said accused. And early on, she even claimed money and a cellphone were missing after the accused was arrested in their house. The testimonies of the accused and his wife are bereft of any corroborating evidence emanating from a disinterested source. It is no less than self-serving devoid of any credence considering the following circumstances: 1. Scrutinizing the entirety of the testimony of the accused and his wife Crisanta Andaya, there are material variances gleaned therefrom. The accused himself never testified that he was pushed to a chair and yet witness Crisanta Andaya said she saw her husband pushed to a chair. Also, the accused said there were two guns poked at him when he opened the door but his wife said only one was holding a gun while another had a long firearm on his shoulder. 2. The testimony of the accused was that only P500.00 was taken by the police before his release. But the wife said P1,500.00 was given to the police before the accused was released. 55

3. The accused and his wife never made any complaint to the proper authorities as regards the alleged loss of money and cellphone when the accused was arrested on December 16, 2002. Neither was there any complaint filed by them for the alleged P500.00 or Pl1500.00 demanded from and given by them to the police. 4. The accused was a resident of Barangay San Jose Sico, Batangas City since the 1980's why was it that it was at Rosario, Batangas where the accused was arrested. The Defense gave no evidence to contest the presumption of guilt based on flight. 5. It is significant to note also that the accused never bothered to ask who was knocking at his door past 9:00 o'clock in the evening. While his family was already lying in bed to sleep he was still watching T.V. These actuations of the accused tend to support the fact that the police asset had made a deal with the accused for the sale of shabu and was expecting the asset to come that night. In the light of all foregoing considerations, the Court is left with no alternative than to find the herein accused criminally liable for the offense charged in the information. Wherefore, accused Pablito Andaya y Reano is found GUILTY beyond reasonable doubt of violating Section 5, Article II of Republic Act No. 9165. He is therefore sentenced to undergo life imprisonment and to pay the costs of this action. The 0.09 gram of methamphetamine hydrochloride subject of this case is confiscated and directed to be proceeded against pursuant to law. The accused may be credited with his preventive imprisonment if he is entitled to any. SO ORDERED.6 Decision of the CA In his appeal, Andaya contended: I. THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THE ACCUSEDAPPELLANT'S SEARCH AND ARREST AS ILLEGAL. II. THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED DESPITE THE FAIL URE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.7 On February 11, 2008, the CA promulgated its assailed decision affirming the conviction,8 viz: WHEREFORE, in view of the foregoing, the appeal is DISMISSED. The decision of Branch IV, RTC, Fourth Judicial Region, Batangas City, in Criminal Case No. 12771 is AFFIRMED in toto. SO ORDERED.9 Issues Hence, Andaya appeals, insisting that the search of his house and his person and his arrest by the police officers violated his constitutional right against unreasonable searches and seizures; and that the Prosecution's nonpresentation of the confidential informant was adverse to the Prosecution, indicating that his guilt was not proved beyond reasonable doubt. Ruling

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The appeal is meritorious. To secure the conviction of the accused who is charged with the illegal sale of dangerous drugs as defined and punished by Section 5, Article II of Republic Act No. 9165 (Comprehensive Drugs Act of 2002), the State must establish the concurrence of the following elements, namely: (a) that the transaction or sale took place between the accused and the poseur buyer; and ( b) that the dangerous drugs subject of the transaction or sale is presented in court as evidence of the corpus delicti.10 We reiterate that a buy-bust operation is a valid and legitimate form of entrapment of the drug pusher.11 In such operation, the poseur buyer transacts with the suspect by purchasing a quantity of the dangerous drug and paying the price agreed upon, and in turn the drug pusher turns over or delivers the dangerous drug subject of their agreement in exchange for the price or other consideration. Once the transaction is consummated, the drug pusher is arrested, and can be held to account under the criminal law. The justification that underlies the legitimacy of the buy-bust operation is that the suspect is arrested in jlagranti delicto, that is, the suspect has just committed, or is in the act of committing, or is attempting to commit the offense in the presence of the arresting police officer or private person.12 The arresting police officer or private person is favored in such instance with the presumption of regularity in the performance of official duty. Proof of the transaction must be credible and complete. In every criminal prosecution, it is the State, and no other, that bears the burden of proving the illegal sale of the dangerous drug beyond reasonable doubt.13 This responsibility imposed on the State accords with the presumption of innocence in favor of the accused, who has no duty to prove his innocence until and unless the presumption of innocence in his favor has been overcome by sufficient and competent evidence. 14 Here, the confidential informant was not a police officer. He was designated to be the poseur buyer himself. It is notable that the members of the buy-bust team arrested Andaya on the basis of the prearranged signal from the poseur buyer. The pre-arranged signal signified to the members of the buybust team that the transaction had been consummated between the poseur buyer and Andaya. However, the State did not present the confidential informant/poseur buyer during the trial to describe how exactly the transaction between him and Andaya had taken place. There would have been no issue against that, except that none of the members of the buy-bust team had directly witnessed the transaction, if any, between Andaya and the poseur buyer due to their being positioned at a distance from the poseur buyer and Andaya at the moment of the supposed transaction. The CA did not find anything wrong or odd in the non-presentation of the poseur buyer as a witness against the accused. In fact, it justified the non-presentation as follows: Appellant also questioned the failure of the prosecution to present the informer. The court is aware of the considerations why confidential informants are usually not presented by the prosecution. There is the need to hide their identity and preserve their invaluable service to the police. (People v. Khor, 307 SCRA 295 [1999], citing People v. Gireng, 241 SCRA 11 [1995].) Foremost is the desire to protect them from being objects or targets of revenge by the criminals they implicate once they become known. (People vs. Ong, G.R. No. 137348, June 21, 2004.) In People vs Lopez (214 SCRA 323), it was held that there was no need for the prosecution to present the confidential informer as the poseur buyer himself positively identified the accused as the one who sold to him one deck of methamphetamine hydrochloride or "shabu." The trial court then properly relied on the testimonies of the police officers despite the decision of the prosecution not to present the informer.15 The foregoing justification by the CA was off-tangent and does not help the State's cause any.1âwphi1 It is obvious that the rulings cited to supp01i the need to conceal the confidential infonnants' identities related to the confidential informants who gave information against suspected drug dealers. The presentation of the confidential informants as witnesses for the Prosecution in those instances could be excused because there were poseur buyers who directly incriminated the accused. In this case, however, it was different, because the poseur buyer and the confidential informant were one and the same. Without the poseur buyer's testimony, the State did not credibly incriminate Andaya. 57

Indeed, Section 5 of Republic Act No. 9165 punishes "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, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions." Under the law, selling was any act "of giving away any dangerous drug and/or controlled precursor and essential chemical whether for money or any other consideration;" 16 while delivering was any act "of knowingly passing a dangerous drug to another, personally or otherwise, and by any means, with or without consideration."17 Given the legal characterizations of the acts constituting the offense charged, the members of the buy-bust team could not incriminate Andaya by simply declaring that they had seen from their positions the poseur buyer handing something to Andaya who, in turn, gave something to the poseur buyer. If the transaction was a sale, it was unwarranted to infer from such testimonies of the members of the buy-bust team that what the poseur buyer handed over were the marked P100.00 bills and that what Andaya gave to the poseur buyer was the shabu purchased. Another mark of suspicion attending the evidence of guilt related to the reliance by the members of the buy-bust team on the pre-arranged signal from the poseur buyer. To start with, the record does not show what the prearranged signal consisted of. It is fundamental enough to expect the State to be clear and definite about its evidence of guilt, particularly here where the conviction of Andaya would require him to spend the rest of his natural life behind bars. Nothing less should be done here. Secondly, the reliance on the supposed signal to establish the consummation of the transaction between the poseur buyer and Andaya was unwarranted because the unmitigatedly hearsay character of the signal rendered it entirely bereft of trustworthiness. The arresting members of the buy-bust team interpreted the signal from the anonymous poseur buyer as the sign of the consummation of the transaction. Their interpretation, being necessarily subjective without the testimony of the poseur buyer, unfairly threatened the liberty of Andaya. We should not allow that threat to perpetuate itself. And, lastly, the reliance on the signal would deprive Andaya the right to confront and test the credibility of the poseur buyer who supposedly gave it. We should look at the situation of Andaya with utmost caution because of what our judicial experience through the years has told us about unscrupulous lawmen resorting to stratagems of false incrimination in order to arrest individuals they target for ulterior reasons. In this case, the arrest did not emanate from probable cause, for the formless signal from the anonymous poseur buyer did not establish beyond reasonable doubt the elements of illegal sale of dangerous drugs under Section 5 of Republic Act No. 9165.1âwphi1 In affirming the RTC's conviction of the accused, the CA observed that the defense of frame-up put up by the accused was discredited by the absence of proof of "any intent on the paii of the police authorities to falsely impute such crime against the accused, the presumption of regularity in the performance of official duty stands."18 Such outright rejection by the lower courts of Andaya's defense of frame-up is not outrightly binding. For sure, the frame-up defense has been commonly used in prosecutions based on buy-bust operations that have led to the an-est of the suspects.19 Its use might be seen as excessive, but the failure of the accused to impute any ill motives to falsely incriminate them should not deter us from scrutinizing the circumstances of the cases brought to us for review. We should remind ourselves that we cannot presume that the accused committed the crimes they have been charged with. The State must fully establish that for us. If the imputation of ill motive to the lawmen is the only means of impeaching them, then that would be the end of our dutiful vigilance to protect our citizenry from false arrests and wrongful incriminations. We are aware that there have been in the past many cases of false arrests and wrongful incriminations, and that should heighten our resolve to strengthen the ramparts of judicial scrutiny. Nor should we shirk from our responsibility of protecting the liberties of our citizenry just because the lawmen are shielded by the presumption of the regularity of their performance of duty. The presumed regularity is nothing but a purely evidentiary tool intended to avoid the impossible and time-consuming task of establishing every detail of the performance by officials and functionaries of the Government. Conversion by no means defeat the much stronger and much firmer presumption of innocence in favor of every person whose life, property and liberty comes under the risk of forfeiture on the strength of a false accusation of committing some crime.20 The criminal accusation against a person must be substantiated by proof beyond reasonable doubt. The Court should steadfastly safeguard his right to be presumed innocent. Although his innocence could be doubted, for his 58

reputation in his community might not be lily-white or lustrous, he should not fear a conviction for any crime, least of all one as grave as drug pushing, unless the evidence against him was clear, competent and beyond reasonable doubt. Otherwise, the presumption of innocence in his favor would be rendered empty. WHEREFORE, the Court REVERSES and SETS ASIDE the decision promulgated on February 11, 2008; ACQUITS accused Pablito Andaya y Reano for failure to prove his guilt beyond reasonable doubt; and ORDERS his immediate release from confinement at the National Penitentiary in Muntinlupa City. The Court DIRECTS that the Director of the Bureau of Corrections to implement the immediate release of Pablito Andaya y Reano, unless he is confined for any other lawful cause; and to report his compliance within ten days from receipt. SO ORDERED.

G.R. No. 207993

January 21, 2015

PEOPLE OF THE PHILIPPINES, Appellee, vs. GERARDO ENUMERABLE y DE VILLA, Appellant.

DECISION CARPIO, J.: The Case On appeal is the 31 January 2013 Decision1 of the Court of Appeals in CA-G.R. CR HC No. 04948. The Court of Appeals affirmed the 15 February 2011 Decision2 of the Regional Trial Court, Branch 12 of Lipa City convicting appellant Gerardo Enumerable y De Villa for violation of Section 5 of Republic Act No. 9165.

The Facts The Information dated 27 August 2004 reads: That on or about the 27th day of May, 2004 at about 11:30 o'clock in the morning at Petron Gasoline Station, located at B. Morada Ave., Lipa City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law, did then and there willfully, unlawfully and feloniously sell, deliver, dispose or give away to a police officer-poseur buyer, 9.88 grams of Methamphetamine Hydrochloride locally known as "shabu", a dangerous drug, contained in three (3) plastic sachets. Contrary to Law.3 Appellant pleaded not guilty to the offense charged.4 Trial ensued. The prosecution presented two witnesses, namely: Police Officer (PO) 3 Edwalberto Villas and Police Inspector Danilo Balmes. On the other hand, appellant waived the presentation of any defense evidence. As found by the trial court,the facts are as follows:

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From the evidence adduced by the People, the Court finds that based on the information about a dealin shabu between the asset of PO3 Edwalberto Villas and a certain Gerry of San Pablo City, a buy-bust operation was conducted by the elements of the Batangas City Police Station with the assistance of Police Inspector Danilo Balmes of the CIDG Batangas Province on May 27, 2004 at 11:30 o’clock in the morning at the Petron Gasoline Station along B. Morada Ave., Lipa City. Using two (2) pieces of marked P500.00 bills and boodle money to make the appearance of about P24,000.00, the police asset who posed as a buyer transacted with the alias Gerry upon his arrival atthe gas station. After the exchange of the marked money and the three (3) plastic sachets of shabu placed in a black plastic box, alias Gerry was placed under arrest. He was later identified as Gerardo Enumerable y de Villa. The marked money was recovered from his possession by PO3 Villas who also took custody of the specimen shabu which he marked EMV 1 to EMV 3. The three (3) sachets of shabu were turned over to the Batangas Provincial Crime Laboratory, pursuant to the request for laboratory examination of P/Supt. Fausto Manzanilla, Jr., Chief of Police, Batangas City PNP on May 27, 2004 at 5:25 p.m. However, that Crime laboratory indorsed the request with the specimens on June 4, 2004 at 2:30 p.m. to the Regional Crime Laboratory in Calamba City. Police Inspector and Forensic Chemist Donna Villa P. Huelgas found the specimens positive for the presence of methamphetamine hydrochloride, a dangerous drug, as shown by Chemistry Report No. D-566-04, the authenticity and genuineness of which were admitted by accused during the pre-trial.5 Appellant filed a Comment with Motion for Leave to File Demurrer,6 which motion was denied by the trial court for appellant’s failure to adduce any reason therefor.7 The trial court found appellant guilty of the offense charged. The dispositive portion of the trial court’s decision reads: WHEREFORE, the Court finds accused GERARDO ENUMERABLE y DE VILLA guilty beyond reasonable doubt as principal by direct participation of the crime of drug pushing as defined and penalized under Section 5, Article II of Republic Act [No.] 9165 otherwise known as the Comprehensive Dangerous Drugs Act of 2002 and hereby impose on him the penalty of life imprisonment and to pay a fine of P500,000.00. The 9.88 grams of shabu are hereby ordered destroyed pursuant to the provisions of Section 21(4) and (7) of RA 9165. The period of detention of the accused shall be deducted in his service of sentence. Let a commitment order be issued for the transfer of custody of the accused from the BJMP Lipa City to the National Penitentiary, Muntinlupa City. SO ORDERED.8 Appellant filed a Notice of Appeal.9 The Court of Appeals affirmed the conviction of appellantfor the offense charged. Hence, this appeal. The Ruling of the Court of Appeals In sustaining appellant’s conviction for the offense charged, the Court of Appeals held that the testimony ofPO3 Villas identifying the three plastic sachets of shabu as the same onesseized from appellant rendered insignificant appellant’s allegation that PO3 Villas did not immediately put markings on the three sachets of shabu at the place of arrest. The Court of Appeals further ruled that the failure of the arresting officers to conduct a physical inventory and to take photographs of the seized items is not fatal as long as the integrity and evidentiary value of the seized items are properly preserved, as in this case. According to the Court of Appeals, the prosecution was able to prove the unbroken chain of custody of the prohibited drug from the time PO3 Villas confiscated the plastic sachets from appellant and marked them at the place of arrest, to the time PO3 Villas brought the plastic sachets to the police station and turned them over to the investigator on-duty until the time SPO1 de Castro submitted the 60

marked plastic sachets to the Regional Crime Laboratory Office Calabarzon for laboratory examination. The Issue The issue boils down to whether the prosecution established the identity and integrity of the confiscated illegal drug, which is the corpus delicti of the offense charged against appellant. The Ruling of the Court We grant the appeal. While appellant waived the presentation of evidence for his defense, he disputes the identity and integrity of the illegal drug which is the corpus delicti of the offense charged against him. Appellant maintains that the prosecution failed to prove the unbroken chain of custody of the illegal drug which gravely impairs its identity. Without the identity of the corpus delicti being sufficiently established, appellantclaims that he should be acquitted. It is settled that in prosecutions for illegal saleof dangerous drug, not only must the essential elements of the offense be proved beyond reasonable doubt, but likewise the identity of the prohibited drug. The dangerous drug itself constitutes the corpus delictiof the offense and the fact of its existence is vital to a judgment of conviction.10 Necessarily, the prosecution must establish that the substance seized from the accused is the same substance offered in court as exhibit.1âwphi1 In this regard, the prosecution must sufficiently prove the unbroken chain of custody of the confiscated illegal drug. In People v. Watamama,11 the Court held: In all prosecutions for the violation of the Comprehensive Dangerous Drugs Act of 2002, the existence of the prohibited drug has to be proved. The chain of custody rule requires that testimony be presented about every link in the chain, from the moment the item was seized up to the time it is offered in evidence. To this end, the prosecution must ensure that the substance presented in court is the same substance seized from the accused. While this Court recognizes substantial adherence to the requirements of R.A. No. 9165 and its implementing rules and regulations, not perfect adherence, is what is demanded of police officers attending to drugs cases, still, such officers must present justifiable reason for their imperfect conduct and show that the integrity and evidentiary value of the seized items had been preserved. x x x. (Emphasis supplied) In People v. Climaco,12 citing Malillin v. People,13 the Court held: x x x [T]o establish guilt of the accused beyond reasonable doubt in cases involving dangerous drugs, it is important that the substance illegally possessed in the first place be the same substance offered in court as exhibit. This chain of custody requirement ensures that unnecessary doubts are removed concerning the identity of the evidence. When the identity of the dangerous drug recovered from the accused is not the same dangerous drug presented to the forensic chemist for review and examination, nor the same dangerous drug presented to the court, the identity of the dangerous drug is not preserved due to the broken chain of custody. With this, an element in the criminal cases for illegal sale and illegal possession of dangerous drugs, the corpus delicti, is not proven, and the accused must then be acquitted based on reasonable doubt. For this reason, [the accused] must be acquitted on the ground of reasonable doubt due to the broken chain of custody over the dangerous drug allegedly recovered from him. In this case, there was a glaring gap in the custody of the illegal drug since the prosecution failed to sufficiently establish who had custody of the illegal drug from the moment it was allegedly transmitted to the Batangas Provincial Crime Laboratory on 27 May 2004 until it was allegedly delivered to the Regional Crime Laboratory on 4 June 2004. There was no evidence presented how the confiscated sachets of shabu were stored, preserved or labeled nor who had custody prior to their 61

delivery to the Regional Crime Laboratory and their subsequent presentation before the trial court. This is evident from the testimony of PO3 Villas, who stated he had no knowledge on who had custody of the sachets of shabu from 27 May 2004 until 4 June 2004. PO3 Villas testified thus: Q But when the accused was arrested on May 27, 2004, records will show that the specimen was submitted to the crime laboratory on June 4, 2004 which is practically several days after. Am I right? A It was turned over to the duty investigator. Q Who brought the specimen to the crime laboratory? A I don’t know from the duty investigator, sir. Q So you are not aware who brought the specimen to the crime laboratory? AYes, sir. Q But between May 27 and June 4, 2004, who was in custody of the specimen? A I turned it over to the duty investigator, sir. Q On what date? A On May 27 after we turned over the suspect to the investigator, sir. Q So your statement which says that the accused was released simply because the specimen or the resultof the examination … would not catch up with the investigation isnot correct because you have not submitted immediately the specimen to the crime laboratory? COURT Q Because it was submitted seven (7) days after the apprehension? A I was not the one who is concerned with the submission of the specimen to the crime laboratory. We turned it over to the duty investigator and the duty investigator marked the specimen, Your Honor. ATTY. GAJITOS Q But you will agree that the specimen was submitted to the crime laboratory by your investigator only on June 4, 2004 or practically a week after the apprehension? A I don’t know, sir. It is onlynow that I came to know, sir.14 (Emphasis supplied) The prosecution attempted to fill the gap in the chain of custody. However, such effort proved futile. On re-direct examination, PO3 Villas, who earlier testified that he had no knowledge on who had custody of the illegal drugs prior and during their delivery to the crime laboratories, merely restated the contents of the 3 June 2004 Memorandum from the Chief of the Batangas Police addressed to the Regional Chief, corresponding to the questions of the prosecutor. In other words, PO3 Villas testified on a piece of document he had no participation inthe preparation or execution thereof. PO3 Villas testified as follows: CROSS-EXAMINATION OF ATTY. GAJITOS

Q Do you admit there are no significant markings on this black box for possession or identification more particularly the signature or initial of the arresting officer? A No, sir. 62

ATTY. GAJITOS No further question, Your Honor. COURT Re-direct. PROSECUTOR Q During your cross-examination, youwere asked regarding the fact as a reply to the question of the defense it was after 7 days that the specimen was actually brought to the laboratory for examination, your answer that was correct? A Yes, ma’am. Q I am showing to you a document, the indorsement which came from the Office of the Chief of Police of Batangas City dated May 27, 2004, can you please go over the same and tell the Court what is the relevance of that document regarding the delivery of specimen to the crime laboratory? A This is the request prepared by our investigator dated May 27 in relation to the arrest of Gerardo Enumerable wherein the subject were three (3) plastic sachets of shabu, it was delivered to Batangas Provincial Crime Laboratory on the same date, ma’am. Q How did you come to know it was delivered on the same date? A There was a stamp receipt by the Provincial Crime Laboratory office delivered by SPO1 De Castro and received by PO3 Llarena at Batangas Provincial Crime Laboratory, ma’am. Q You likewise identified during the direct examination chemistry report coming from Camp Vicente Lim, how would you reconcile the fact the specimen was delivered to the Provincial Crime Laboratory and the result came from Camp Vicente Lim? A It was the Provincial Crime Laboratory of Batangas PPO who made the indorsements from Batangas Provincial Police Office to the Crime Laboratory, Camp Vicente Lim, ma’am. Q Do you have proof to show that fact? A Yes, ma’am. Q What is that? A Letter request made by the Batangas Crime Laboratory to the Crime Laboratory, Camp Vicente Lim, ma’am. Q This is the same request made by the Batangas Provincial Crime Laboratory addressed to Regional Crime Laboratory, was there a proof to show that the specimen together with the indorsement was actually received by the Crime Laboratory Camp Vicente Lim. A Yes, there was a stamp of the Regional Crime Laboratory office delivered by PO3 Vargas and received by PO3 Macabasco of the Regional Crime Laboratory, ma’am. Q What date? A It was delivered on June 3 and the specimen was received on June 4, ma’am. Q Why was it necessary for your officeto deliver the specimen to the Provincial Crime Laboratory, why not directly to the Crime Laboratory of Camp Vicente Lim? 63

A During that time there was no chemist who examined the specimen in the Provincial Crime Laboratory so what they did was they delivered the specimen to the Regional Crime Laboratory, ma’am. Q My question is, why not deliver it directly to Camp Vicente Lim? A The PNP during that time did not have any budget, ma’am. Q How much would it needto deliver the specimen? A It was cheap, sir. The problemwas that the Provincial Crime Laboratory did not have any chemist, they delivered the specimen to the Regional Crime Laboratory that is why there are many accused who remained at large, ma’am. xxxx Q Who brought the specimen to the PNP Crime Laboratory? A The officer on duty, Your Honor. Q From Batangas to Camp Vicente Lim, do you know the officer? A The person who delivered there, it is stated in the document, Your Honor. Q Who was in custody of this specimen from Batangas PNP to the Provincial Crime Laboratory? A The officer, Your Honor.15 (Emphasis supplied)

Clearly, PO3 Villas had no personal knowledge on (1) how the illegal drugs were delivered and who delivered the drugs from the Batangas Provincial Crime Laboratory to the Regional Crime Laboratory; (2) who received the drugs in the Regional Crime Laboratory; and (3) who had custody of the drugs from 27 May 2004 to 3 June 2004 until their presentation before the trial court. The testimony of PO3 Villas merely attests to the existence of the Memorandum from the Chief of the Batangas Provincial Crime Laboratory to the Regional Crime Laboratory. While appellant admitted during the pre-trial the authenticity and due execution of the Chemistry Report, prepared by Police Inspector and Forensic Chemist Donna Villa P. Huelgas, this admission merely affirms the existence of the specimen and the request for laboratory examination and the results thereof. Appellant's admission does not relate to the issue of chain of custody. In fact, appellant qualified his admission that the specimens were not taken or bought from him.16 In People v. Gutierrez, the Court stated: x x x That the defense stipulated on these matters, viz: that the specimen exists, that a request has been made by the arresting officers for examination thereof, that a forensic chemist examined it, and that it tested positive for methylamphetamine hydrochloride has no bearing on the question of chain of custody. These stipulations, which merely affirm the existence of the specimen, and the request for laboratory examination and the results thereof, were entered into during pre-trial only in order to dispense with the testimony of the forensic chemist and abbreviate the proceedings. x x x.17 Since the failure of the prosecution to establish every link in the chain of custody of the illegal drug gravely compromised its identity and integrity, which illegal drug is the corpus delicti of the offense charged against appellant, his acquittal is therefore in order. WHEREFORE, we GRANT the appeal and ACQUIT appellant Gerardo Enumerable y De Villa based on reasonable doubt and we ORDER his immediate release from detention, unless he is detained for any other lawful cause.

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G.R. No. 198450 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. FERNANDO RANCHE HAVANA a.k.a. FERNAMDO RANCHE ABANA, Accused-Appellant. DECISION DEL CASTILLO, J.: "Statutory rules on preserving the chain of custody of confiscated prohibited drugs and related items are designed to ensure the integrity and reliability of the evidence to be presented against the accused. Their observance is the key to the successful prosecution of illegal possession or illegal sale of dangerous drugs."1 At issue in this case is whether appellant Fernando Ranche Havana a.k.a. Fernando Ranche Abana did in fact sell or deliver to an alleged poseur-buyer some 0.03 gram of the banned substance Methylamphetamine Hydrochloride, locally known as "shabu" on the late afternoon of November 4, 2005. The appellant insists that he never did. The prosecution asserts the contrary. On appeal is the May 31, 2010 Decision2 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 00688, affirming the February 28, 2007 Decision3 of the Regional Trial Court (RTC) of Cebu City, Branch 58 finding Fernando Havana y Ranche a.k.a Fernando Abruia y Ranche (appellant) guilty of violating Section 5, Article II of Republic Act No. 9165 (RA 9165) otherwise known as the Comprehensive Dangerous Drugs Act of 2002 and sentencing him to suffer the penalty of life imprisonment and to pay a fine of P500,000.00. Factual Antecedents In an Information4 dated November 18, 2005, the appellant was charged with illegal sale of dangerous drugs committed as follows: That on or about the 4th day of November, 2005, at about 6:30 p.m., in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent and without authority of law, did then and there sell, deliver or give away to a poseur[-]buyer the following: One (1) heat-sealed transparent plastic packet containing 0.03 gram of white crystalline substance containing Methylamphetamine Hydrochloride, locally known as "SHABU", a dangerous drug. CONTRARY TO LAW.5 Appellant put in a negative plea. Trial then followed. The prosecution’s case is essentially erected upon the testimonies of PO2 Miguel R. Enriquez 6 (PO2 Enriquez), SPO1 Rogelio J. Cañete, Jr. (SPO1 Cañete), and Police Chief Inspector Mutchit G. Salinas (PCI Salinas), all members of the Philippine National Police (PNP), Police Station 10, Punta Princesa, Cebu City and documentary exhibits pertaining to the buy-bust operation. The combined testimonies and the documentary exhibits tended to establish these facts: On the afternoon of November 4, 2005, a civilian informant, one "Droga", went to Police Station 10, Punta Princesa, Cebu City and reported to the duty officer SPO1 Vicente R. Espenido, Jr. (SPO1 Espenido) that the appellant was actively engaged in the illegal drug trade at Sitio Mangga, Punta Princesa, Cebu City. SPO1 Espenido immediately assembled a buy-bust team, with him as the team leader, the civilian asset and with PO2 Enriquez, SPO1 Cañete, and SPO1 Jasper C. Nuñez (PO2 Nuñez) as back-up. The police team designated the unnamed "civilian informant" as poseur-buyer and provided him with a P100.00 marked money bill, with its serial number (SN003332) noted in the police blotter,7 to be used for the purpose of buying shabu from appellant. The buy-bust operation 65

was allegedly coordinated with the Office of the Philippine Drug Enforcement Agency (PDEA).8When the police team reached the target area, the "civilian informant" went to the house of appellant and called the latter. Hidden from view, some 15 meters away from the house, the back-up operatives, PO2 Enriquez and SPO1 Cañete, saw the civilian informant talking with the appellant. Not long after, they saw the "civilian informant" handling over the marked P100.00 bill to the appellant, who in exchange gave to the former a plastic pack containing 0.03 gram white crystalline substance which these two suspected as shabu. The "civilian informant" then placed a face towel on his left shoulder to signal that the sale had been consummated. SPO1 Espenido and his two companions rushed towards the "civilian informant" and the appellant and arrested the latter after apprising him of his constitutional rights. SPO1 Espenido recovered the P100.00 marked money from the appellant while the plastic pack was given by the "civilian informant" to SPO1 Espenido. The appellant was taken to the police station for investigation. The P100.00 marked money and the plastic pack containing the suspected shabu were turned over to SPO2 Nuñez who marked the plastic pack with "FA" the initials of herein appellant. He then prepared a letter requesting for examination9 of the item seized from the appellant addressed to the PNP Crime Laboratory. PCI Salinas, a forensic chemist of the PNP Crime Laboratory of Brgy. Apas, Cebu City, testified that he conducted a laboratory examination of the recovered specimen10 that yielded "positive result for the presence of methylamphetamine hydrochloride, a dangerous drug." 11 The appellant denied that he was a shabu-seller; he also denied that he was arrested in a buy-bust operation.1âwphi1 He claimed that on that evening of November 4, 2005 he was eating bread when SPO2 Nuñez barged inside his house, handcuffed him and brought him to the police precinct. He claimed that he was mistaken for his neighbor "Narding" the real shabu-seller. His daughter, Maria Theresa, corroborated him. Ruling of the Regional Trial Court The RTC found appellant guilty as charged and sentenced him to suffer the penalty of life imprisonment and to pay a fine of P500,000.00. From this judgment, appellant appealed to the CA. Ruling of the Court of Appeals On appeal, the CA upheld the RTC ruling. The appellate court held that the non-submission of the pre-operation report to the PDEA did not at all render the buy-bust operation irregular. What it held as important is that the police officers were able to call the PDEA prior to the operation. The CA was convinced that all the elements of the offense charged were established by the prosecution. The CA held that the integrity and evidentiary value of the confiscated item had been preserved, despite the fact that the police officers did not strictly adhere to the procedure outlined in Section 21 of RA 9165 which governs the so-called "buy-bust" operations. It held that the police officers regularly performed their functions. Thus, in its Decision of May 31, 2010, the CA decreed dispositively – WHEREFORE, premises considered, the Appeal is hereby DISMISSED. The Decision dated February 28, 2007 of the Regional Trial Court (RTC), Branch 58, Cebu City, in Criminal Case No. CBU-75283, is AFFIRMED. SO ORDERED.12 Aggrieved, appellant is now before us seeking the reversal of his conviction faulting the courts below for convicting him of the crime charged. He questions in his Supplemental Brief: (1) the lack of precoordination with the PDEA regarding the buy-bust operation, (2) the non-presentation in court of the unnamed "civilian informant" as poseur-buyer, (3) the non-compliance by the police officers with the prescribed procedure under Section 21, Article II of RA 9165 and lastly, the dubious chain of custody of the subject shabu. The Office of the Solicitor General (OSG) prays for the affirmance of the appealed Decision arguing that the essential elements of the offense charged had been adequately established and that the 66

appellant’s bare denial cannot prevail over the positive and straightforward testimonies of the police operatives who are presumed to have performed their duties regularly. Our Ruling The appeal is well-taken. Prefatorily, we stress again that generally, the trial court’s findings of fact, especially when affirmed by the CA, are entitled to great weight, and will not be disturbed on appeal. 13 Even as this Court must defer to this salutary rule, it must likewise pay homage to a higher duty which is to dispense real, conscientious and honest-to-goodness justice by conducting a thorough examination of the entire records of the case based on the settled principle that an appeal in a criminal case opens the whole case for review on all questions including those not raised by the parties.14 The appellant contends that the belated submission of the pre-operation report to the PDEA after the buy-bust operation violates RA 9165; and that the non-presentation of the unnamed "civilian informant" who allegedly brokered the transaction with him casts serious doubts on the factuality of the buy-bust operation.15 There is no merit in this contention. We held in People v. Abedin16 that coordination with the PDEA is not an indispensable requirement before police authorities may carry out a buy-bust operation; that in fact, even the absence of coordination with the PDEA will not invalidate a buy-bust operation.17 Neither is the presentation of the informant indispensable to the success in prosecuting drug-related cases.18 Informers are almost always never presented in court because of the need to preserve their invaluable service to the police. Unless their testimony is absolutely essential to the conviction of the accused, their testimony may be dispensed with since their narrations would be merely corroborative to the testimonies of the buybust team. Adherence to the chain of custody rule not established. In this ultimate recourse, appellant focuses his principal argument on the alleged failure of the prosecution to establish a continuous and unbroken chain of custody of the seized illegal drug and the lack of integrity of the evidence in view of the police officers’ non-compliance with Section 21, Article II of RA 9165. "In a prosecution for illegal sale of dangerous drugs, the following elements must be duly established: (1) proof that the transaction or sale took place; and (2) the presentation in court of the corpus delicti or the illicit drug as evidence."19 The dangerous drug itself constitutes the very corpus delicti of the offense and the fact of its existence beyond reasonable doubt plus the fact of its delivery and/or sale are both vital and essential to a judgment of conviction in a criminal case.20 And more than just the fact of sale, "[o]f prime importance therefore x x x is that the identity of the dangerous drug be likewise established beyond reasonable doubt. In other words, it must be established with unwavering exactitude that the dangerous drug presented in court as evidence against the accused is the same as that seized from him in the first place. The chain of custody requirement performs this function in that in ensures that unnecessary doubts concerning the identity of the evidence are removed."21 The Dangerous Drugs Board Regulation No. 1, Series of 2002, defines chain of custody as "duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping, to presentation in court for destruction." As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered in evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what 67

happened to it while in the witness’ possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. While the testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not readily identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard obtains in case the evidence is susceptible of alteration, tampering, contamination and even substitution and exchange. In other words, the exhibit’s level of susceptibility to fungibility, alteration or tampering –without regard to whether the same is advertent or otherwise not – dictates the level of strictness in the application of the chain or custody rule.22 Measured by the foregoing yardstick, we find that the prosecution utterly failed to establish convincingly the chain of custody of the alleged seized plastic pack subject matter hereof. In fact only PO2 Enriquez and SPO1 Cañete testified in respect to the identity of the alleged evidence. However, from their testimonies, the prosecution was not able to account for the linkages in the chain while the plastic pack was not or no longer in their respective possession. While both witnesses testified that after the sale and apprehension of the appellant, the poseur-buyer turned over the subject pack of shabu to their team leader SPO1 Espenido, there is no record as to what happened after the turn-over. SPO1 Espenido to whom the specimen was allegedly surrendered by the poseur-buyer was not presented in court to identify the person to whom it was given thereafter and the condition thereof while it was in his possession and control. The prosecution did not bother to offer any explanation for his non-presentation as a witness. This is a significant gap in the chain of custody of the illegal stuff. The prosecution’s cause is also marred by confusion and uncertainty regarding the possessor of the pack ofshabu when it was brought to the police station. By PO2 Enriquez’s account, it was SPO2 Nuñez who was in possession of the same – an account which is at loggerheads with the claim of SPO1 Cañete that he was in custody and possession thereof and that he personally brought the same to the police station. These police officers cannot seem to agree on a point over which there could hardly be a disagreement. It must be observed that SPO2 Nuñez who had supposedly taken custody of the substance following PO2 Enriquez’s account was likewise not presented in court to testify. Worse, the prosecution did not even try to reconcile this inconsistency. Moreover, the prosecution failed to show how, when and from whom SPO2 Nuñez or SPO1 Cañete received the evidence. There was no evidence on how they came into possession of the pack of shabu. Again, this is a clear missing link in the chain of custody of the specimen after it left the hands of SPO1 Espenido. We also take note that the testimonies of the prosecution witnesses failed to identify the person to whom the specimen was given at the police station. All that has been said is that the investigator, SPO2 Nuñez, marked the specimen. But this statement did not necessarily mean that he was the same officer who received the same from either PO2 Enriquez or SPO1 Cañete. In fact, there is a total want of evidence tending to prove that fact. It must be recalled that SPO2 Nuñez did not take the witness stand to identify the specific marking on the alleged specimen; neither did the prosecution adduce conclusive proof as to the author of the handwriting affixed therein and admit the same as his own handwriting. True, PO2 Enriquez claimed that he personally delivered to the crime laboratory the specimen attached to the letter-request; nonetheless, he did not categorically testify that the substance presented in court was the very same substance delivered to the crime laboratory for analysis. In fact, going by the records neither of the two police officers testified that the substance delivered to the crime laboratory for chemical analysis and later presented in court was the same substance seized from the appellant. Nor can the prosecution gain from the testimony of the forensic chemist PCI Salinas. The records show that there is nothing positive and convincingly clear from the testimony of PCI Salinas. She did not at all categorically and straightforwardly assert that the alleged chemical substance that was 68

submitted for laboratory examination and thereafter presented in court was the very same substance allegedly recovered from the appellant. If anything, the sum and substance of her testimony is that the alleged pack of shabu submitted to her for laboratory examination showed that it was positive for methamphetylane hydrochloride or shabu. She never testified where the substance came from. Her testimony was limited only on the result of the examination she conducted and not on the source of the substance. "[W]hile the chain of custody should ideally be perfect [and unbroken], in reality it is not, ‘as it is almost always impossible to obtain an unbroken chain.’" 23 As such, what is of utmost importance "is the preservation of the integrity and the evidentiary value of the seized items as they will be used to determine the guilt or innocence of the accused."24 In the case at bench, this Court finds it exceedingly difficult to believe that the integrity and evidentiary value of the drug have been properly preserved by the apprehending officers. The inexplicable failure of the police officers to testify as to what they did with the alleged drug while in their respective possession resulted in a breach or break in the chain of custody of the drug. In some cases,25 the Court declared that the failure of the prosecution to offer the testimony of key witnesses to establish a sufficiently complete chain of custody of theshabu plus the irregular manner which plagued the handling of the evidence before the same was offered in court, whittles down the chances of the government to obtain a successful prosecution in a drug-related case. Here, apart from the utter failure of the prosecution to establish an unbroken chain of custody, yet another procedural lapse casts further uncertainty about the identity and integrity of the subject shabu. We refer to the non-compliance by the buy-bust team with the most rudimentary procedural safeguards relative to the custody and disposition of the seized item under Section 21(1),26 Article II of RA 9165. Here, the alleged apprehending team after the alleged initial custody and control of the drug, and after immediately seizing and confiscating the same, never ever made a physical inventory of the same, nor did it ever photograph the same in the presence of the appellant from whom the alleged item was confiscated. There was no physical inventory and photograph of the item allegedly seized from appellant. Neither was there any explanation offered for such failure. While this Court in certain cases has tempered the mandate of strict compliance with the requisite under Section 21 of RA 9165, such liberality, as stated in the Implementing Rules and Regulations27 can be applied only when the evidentiary value and integrity of the illegal drug are properly preserved as we stressed in People v. Guru.28 In the case at bar, the evidentiary value and integrity of the alleged illegal drug had been thoroughly compromised. Serious uncertainty is generated on the identity of the item in view of the broken linkages in the chain of custody. In this light, the presumption of regularity in the performance of official duty accorded the buy-bust team by the courts below cannot arise. WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-G.R CR-HC No. 00688 dated May 31, 2010 is REVERSED and SET ASIDE. Appellant Fernando Ranche Havana a.k.a. Fernando Ranche Abana is hereby ACQUITTED of the charge, his guilt not having been established beyond reasonable doubt. The Director of the Bureau of Corrections is hereby ORDERED to immediately RELEASE the accused from custody, unless he is held for another lawful cause. SO ORDERED.

G.R. No. 188698

July 22, 2015

PEOPLE OF THE PHILIPPINES, Appellee, vs. SONIA BERNEL NUARIN, Appellant. DECISION

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BRION, J.: We decide the appeal filed by appellant Sonia Bemel Nuarin (appellant) from the April 28, 2009 decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02886. The appealed decision affirmed the May 25, 2007 joint decision2 of the Regional Trial Court (RTC), Branch 80, Quezon City, finding the appellant guilty beyond reasonable doubt of violation of Section 5, Article II of Republic Act (R.A.) No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002. Background Facts The prosecution charged the appellant with violation of Sections 53 and 11, 4 respectively, of R.A. No. 9165 before the RTC, docketed as Criminal Case Nos. Q-03-114918 and Q-03-114919. The appellant was duly arraigned; she pleaded not guilty to the charges laid. The prosecution presented Police Officer 1 (PO1) Roberto Manalo at the trial on the merits that followed, while the parties stipulated5 the testimony of Forensic Chemist, Police Senior Inspector (P/Sr. Insp.) Bernardino Banac. The appellant took the witness stand for the defense. PO1 Manalo testified that on February 2, 2003, members of the District Drug Enforcement Group of the Central Police District, composed of himself, PO1 Filnar Mutia, PO3 Cleto Montenegro, PO3 Eduardo Datul, and PO3 Rommel Bautista went to Barangay Old Balara, Quezon City, to conduct a buy-bust operation against the appellant.6 When they arrived there at around 12:30 p.m., the informant introduced PO1 Manalo to the appellant. PO1 Manalo told the appellant that he wanted to buy P100.00 worth of shabu. The appellant handed a sachet containing white crystalline substances to PO1 Manalo who, in turn, gave him the marked money. Immediately after, PO1 Manalo made the prearranged signal to his companions.7 The other members of the entrapment team rushed to the scene and introduced themselves as policemen; PO1 Mutia searched the appellant and found two other plastic sachets inside the appellant’s coin purse. Thereafter, the police brought the appellant and the seized items to the police station.8 The defense presented a different picture of the events. The appellant’s testimony was aptly summarized by the CA as follows: On February 2, 2003, at about 12:30 in the afternoon, accused-appellant was at home with her son John Bernel and friends Jan Ticson and Rebecca Agana. They had just finished eating lunch and accused appellant was, then, washing the dishes when she heard a knock on the door. At the door were PO3 Cleto Montenegro, PO1 Filnar Mutia and two others. They were looking for a certain Bogart. When accused-appellant said that she did not know where Bogart was, the police officers entered the house and searched the premises for about an hour. When the search did not yield anything incriminatory, the police brought accused-appellant and the other occupants of the house to Camp Karingal In Quezon City. There, the police extorted P40,000.00 in exchange of accusedappellant’s release. When the money was not produced, accused-appellant was charged by the police officers.9 In its joint decision10 of May 25, 2007, the RTC found the appellant guilty of the illegal sale of 0.03 gram of shabu penalized under Section 5, Article II of R.A. No. 9165. The RTC held that the prosecution was able to prove, through testimonial and documentary evidence, that an illegal sale of drugs took place between the appellant and the poseur-buyer, PO1 Manalo. It added that the police were presumed to have regularly performed their official duties in the absence of any evidence to rebut this presumption. The RTC likewise found no merit in the appellant’s defenses of denial and extortion as she failed to substantiate these. Accordingly, the RTC sentenced the appellant to suffer the penalty of life imprisonment, and ordered her to pay a P500,000.00 fine. The RTC, however, acquitted the appellant of illegal possession of dangerous drugs in Criminal Case No. Q-03-114919 for insufficiency of evidence. On appeal, the CA affirmed the RTC decision in toto. The CA held that the prosecution successfully proved all the elements of illegal sale of shabu under Section 5, Article II of R.A. No. 9165. It further ruled that the integrity and evidentiary value of the confiscated shabu had been preserved. The CA 70

also disregarded the appellant’s denial in the light of the positive identification made by PO1 Manalo. In her brief on appeal, the appellant contends that the trial court gravely erred in convicting her of the crime charged despite the prosecution’s failure to establish that a buy-bust operation took place. She also maintained that the chain of custody over the seized shabu had been broken. For the State, the office of the Solicitor General (OSG) counters that the prosecution was able to establish that the sale of shabu between the appellant and the poseur-buyer was consummated. It also maintained that the nonpresentation in court of the original marked money, the forensic chemist, the informant, and the original marked money was not fatal in the prosecution for illegal drugs. Our Ruling After due consideration, we resolve to acquit the appellant for the prosecution’s failure to prove her guilt beyond reasonable doubt. A successful prosecution for the sale of illegal drugs requires more than the perfunctory presentation of evidence establishing each element of the crime: the identities of the buyer and seller, the transaction or sale of the illegal drug, and the existence of the corpus delicti. In securing or sustaining a conviction under R.A. No. 9165, the intrinsic worth of these pieces of evidence, especially the identity and integrity of the corpus delicti, must definitely be shown to have been preserved. This requirement necessarily arises from the illegal drug’s unique characteristic that renders it indistinct, not readily identifiable, and easily open to tampering, alteration, or substitution either by accident or otherwise. Thus, to remove any doubt on the identity and integrity of the seized drug, evidence must definitely show that the illegal drug presented in court is the same illegal drug actually recovered from the accused-appellant.11 It is in this respect that the prosecution failed. The ‘Marking’ Requirement vis-à-vis the Chain of Custody Rule Dangerous Drugs Board Regulation No. 1, Series of 2002, which implements R.A. No. 9165, defines chain of custody as "the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction." A crucial step in proving chain of custody is the marking of the seized drugs or other related items immediately after they are seized from the accused. "Marking" means the placing by the apprehending officer or the poseur-buyer of his/her initials and signature on the items seized. Marking after seizure is the starting point in the custodial link; hence, it is vital that the seized contraband be immediately marked because succeeding handlers of the specimens will use the markings as reference. The marking of the evidence serves to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of the criminal proceedings, thus preventing switching, "planting," or contamination of evidence.12 In the present case, the prosecution’s lone witness, PO1 Manalo, gave conflicting statements as to who marked the seized sachets. In his direct testimony, he claimed that it was the desk officer who marked the sachets, thus: PROSECUTOR JOSEPHUS ASIS: Q: After you were able to arrest the accused and while going travelling (sic) to your office[,] who was holding the drug that you were able to buy from the accused? PO1 MANALO: A: I, Sir. Q: After the recovered money by PO1 Mutia and after you arrived at the station[,] what did you do? 71

A: We turned it over to the desk officer and the desk officer put the initial RM. Q: After the marking[,] what happened next? A: The investigator prepared a request to the crime laboratory and brought the drug to the crime lab. Q: Who brought it if you know? A: I can no longer remember.13 In the latter part of his direct examination, however, PO1 Manalo claimed that he was the one who marked the sachets. To directly quote from the records: PROSECUTOR JOSEPHUS ASIS: Q: Now you mentioned that you were able to purchase drug from the accused. If the drug will be shown to you[,] would you be able to identify it? PO1 MANALO: A: I have my marking there[,] sir. Q: Will you please go over the same and tell me what is the relation of the said sachet with the substance with the one you were able to buy (sic)? Q: This is the same stuff that I bought, this is my marking. PROS ASIS: Witness identified the sachet previously marked Exhibit "F-3." May we request that the marking placed by the witness in the sachet be marked as Exhibit "F-3-B." xxxx Q: How sure are you that the sachet that you have just identified is also the sachet that you recovered during the operation? A: Nobody held it except me. Q: How did you identify the sachet? A: The marking that I made.14 [emphasis supplied] In his cross-examination, PO1 Manalo again stated that he was the one who marked the confiscated plastic sachets with "RM." We point out that succeeding handlers of the specimen will use the initial markings as reference. If at the first instance or opportunity, there are already doubts on who really placed the markings on the seized sachets (or if the markings were made in accordance with the required procedure), serious uncertainty hangs over the identification of the seized shabu that the prosecution introduced into evidence. In addition, the records do not show that the sachets were marked in the presence of the appellant. In People v. Sanchez,15 we explained that the "marking" of the seized items to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence should be done (1) in the presence of the apprehended violator (2) immediately upon confiscation.16 We explained therein that [t]his step initiates the process of protecting innocent persons from dubious and concocted searches, and of protecting as well the apprehending officers from harassment suits based on planting of evidence under Section 29and on allegations of robbery or theft. Significantly, PO1 Manalo and PO1 Mutia did not even mention that they marked the seized plastic sachet in their Joint Affidavit of Arrest. In People of the Philippines v. Merlita Palomares y Costuna,17 the Court acquitted the accused for the prosecution’s failure to clearly establish the identity of the person who marked the seized drugs; the place where marking was made; and whether the marking had been made in the accused’s presence. As to the subsequent links in the chain of custody, PO1 Manalo stated that he handed the seized plastic sachets to the desk officer at the police station.1âwphi1 Curiously, the identity of this desk officer was never revealed during trial. This is particularly significant since no reference was ever made as to the person who submitted the seized specimen to the PNP Crime Laboratory for examination. PO1 Manalo, in fact, testified that he could not remember the person who brought the seized plastic sachets to the crime laboratory. Notably, the specimen was forwarded to the crime laboratory only at 10:35 p.m. It was not clear, therefore, who had temporary custody of the seized

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items when they left the hands of PO1 Manalo until they were brought to the crime laboratory for qualitative analysis. The stipulation on the testimony of the forensic chemist does nothing to help fill the gap as regards the custody and possession of the sachets from the police station to the crime laboratory. To recall, the parties merely stipulated that P/Sr. Insp. Banac received a request for laboratory examination, together with the specimen to be examined; that he recorded the receipt of the sachets in the logbook and conducted a physical, chemical, and confirmatory test on the submitted specimen; that he found them positive for the presence of shabu; and that he put his markings on the sachet and placed it in an improvised envelope before forwarding it to the evidence custodian. Notably, the RTC held that P/Sr. Insp. Banac "has no personal knowledge from whom the subject specimen presented before this court was taken (sic)."18 Simply put, the stipulated testimony of the forensic chemical officer has no bearing on the question of whether the specimen submitted for chemical analysis and subsequently presented in court were the same as that seized from the appellant. The requirements of paragraph 1, Section 21 of Article II of R.A. No. 9165 The required procedure on the seizure and custody of drugs is embodied in Section 21, paragraph 1,Article II of R.A. No. 9165, which states: 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 ours] This is implemented by Section 21(a), Article II of the Implementing Rules and Regulations of R.A. No. 9165, which reads: (a) The apprehending officer/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: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items; [emphasis ours] This procedure, however, was not shown to have been complied with by the members of the buy-bust team, asPO1 Manalo himself admitted that the police did not make an inventory and photograph the seized items either at the place of seizure or at the police station. In addition, the police did not offer any acceptable reason why they failed to do a basic requirement like a physical inventory of the seized drugs, considering that there were only three (3) sachets taken from the appellant. In the recent case of People of the Philippines v. Rosalinda Casabuena,19 we acquitted the accused for failure of the police to make an inventory and to photograph the seized shabu. We explained that strict compliance with the prescribed procedure is required because of the illegal drug's unique characteristic rendering it indistinct, not readily identifiable, and easily open to tampering, alteration, or substitution either by accident or otherwise. No Presumption of Regularity in the Performance of Official Duties

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The courts a quo erred in giving weight to the presumption of regularity in performance that a police officer enjoys in the absence of any taint of irregularity and of ill motive that would induce him to falsify his testimony. The regularity of the performance of the police officers’ duties leaves much to be desired in this case given the lapses in their handling of the allegedly confiscated shabu. The totality of all the procedural lapses we previously discussed effectively produced serious doubts on the integrity and identity of the corpus delicti, especially in the face of allegations of frame up and extortion. We have previously held that these lapses negate the presumption that official duties have been regularly performed by the police officers. Any taint of irregularity affects the whole performance and should make the presumption unavailable.20 We also entertain serious doubts on PO1 Manalo’s claim that they coordinated with the Philippine Drug Enforcement Agency (PDEA) before the buy-bust operation, as he admitted that there was no pre-operation report or coordination sheet prepared by the police. Significantly, PO1 Manalo likewise admitted that the police did not coordinate with the barangay officials of the subject area. To our mind, these circumstances vis-à-vis the lapses made in the handling and safekeeping of the alleged sachets of shabu puts in doubt the claim of the police that they had conducted a legitimate buy-bust operation. In fine, the totality of evidence presented in the instant case does not support the appellant's conviction for violation of Section 5, Article II, R.A. No. 9165, since the prosecution failed to prove beyond reasonable doubt all the elements of the offense. We reiterate that the prosecution’s failure to comply with Section 21, Article II of R.A. No. 9165, and with the chain of custody requirement of this Act, compromised the identity of the item seized, which is the corpus delicti of the crime charged against appellant. Following the constitutional mandate, when the guilt of the appellant has not been proven with moral certainty, as in this case, the presumption of innocence prevails and his exoneration should be granted as a matter of right.21 A final note. We are mindful of the pernicious effects of drugs in our society; they are lingering maladies that destroy families and relationships, and engender crimes. The Court is one with all the agencies concerned in pursuing an intensive and unrelenting campaign against this social dilemma. Regardless of our desire to curb this menace, we cannot disregard the protection provided by the Constitution, most particularly on the presumption of innocence bestowed on the appellant. Proof beyond reasonable doubt, or that quantum of proof sufficient to produce moral certainty that would convince and satisfy the conscience of those who act in judgment, is indispensable to overcome this constitutional presumption. If the prosecution has not proved, in the first place, all the elements of the crime charged, which in this case is the corpus delicti, then the appellant deserves no less than an acquittal.22 WHEREFORE, premises considered, we REVERSE and SET ASIDE the April 28, 2009 decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02886. Sonia Bemel Nuarin is hereby ACQUITTED for the failure of the prosecution to prove her guilt beyond reasonable doubt. She is ordered immediately RELEASED from detention unless she is confined for another lawful cause. Let a copy of this Decision be furnished the Superintendent, Correctional Institution for Women, Mandaluyong City, for immediate implementation. The Superintendent of the Correctional Institution for Women is directed to report the action she has taken to this Court within five (5) days from receipt of this Decision. SO ORDERED. G.R. No. 200748 July 23, 2014 JAIME D. DELA CRUZ, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION SERENO, CJ:

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This is a Petition for Review on Certiorari, filed by petitioner Jaime D. dela Cruz, from the Decision1 dated 22 June 2011 issued by the Twentieth Division of the Court of Appeals (CA) and Resolution2 dated 2 February 2012 issued by the Former Twentieth Division of the CA in CA-G.R. C.R. No. 00670. THE ANTECEDENT FACTS Petitioner Jaime D. dela Cruz was charged with violation of Section 15, Article II of Republic Act No. (R.A.) 9165, or The Comprehensive Dangerous Drugs Act of 2002, by the Graft Investigation and Prosecution Officer of the Office of the Ombudsman - Visayas, in an Information3 dated 14 February 2006, which reads: That on or about the 31st day of January 2006, at Cebu City, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, JAIME D. DE LA CRUZ, a public officer, having been duly appointed and qualified to such public position as Police Officer 2 of the Philippine National Police (PNP) assigned in the Security Service Group of the Cebu City Police Office, after having beenarrested by agents of the National Bureau of Investigation (NBI) in an entrapment operation, was found positive for use of METHAMPHETAMINE HYDROCHLORIDEcommonly known as "Shabu", the dangerous drug after a confirmatory test conducted on said accused. CONTRARY TO LAW. When arraigned, petitioner, assisted by counsel de parte, pleaded not guilty to the charge. The records do not reveal whether De la Cruz was likewise charged for extortion. VERSION OF THE PROSECUTION The evidence of the prosecution reveals that at 8:00 a.m. of 31 January 2006, the agents and special investigators of the National Bureau of Investigation, Central Visayas Regional Office (NBICEVRO) or simply NBI, received a Complaint from Corazon Absin (Corazon) and Charito Escobido (Charito). The complainants claimed that at 1:00 a.m. of that same day, Ariel Escobido (Ariel), the live-in partner of Corazon and son of Charito, was picked up by several unknown male persons believed to be police officers for allegedly selling drugs. An errand boy gave a number to the complainants, and when the latter gave the number a ring, they were instructed to proceed to the Gorordo Police Office located along Gorordo Avenue, Cebu City. In the said police office, they met "James" who demanded from them P100,000, later lowered to P40,000, in exchange for the release of Ariel. After the meeting, the complainants proceeded to the NBI-CEVRO to file a complaint and narrate the circumstances of the meeting to the authorities. While at the NBI-CEVRO, Charitoeven received calls supposedly from "James" instructing her to bring the money as soon as possible. The special investigators at the NBI-CEVRO verified the text messages received by the complainants.1âwphi1 A team was immediately formed to implement an entrapment operation, which took place inside a Jollibee branch at the corner of Gen. Maxilom and Gorordo Avenues, Cebu City. The officers were able to nab Jaime dela Cruz by using a pre-marked 500 bill dusted with fluorescent powder, which was made part of the amount demanded by "James" and handed by Corazon. Petitioner was later brought to the forensic laboratory of the NBI-CEVRO where forensic examination was done by forensic chemist Rommel Paglinawan. Petitioner was required to submit his urine for drug testing. It later yielded a positive result for presence of dangerous drugs as indicated in the confirmatory test result labeled as Toxicology (DangerousDrugs) Report No. 2006TDD-2402 dated 16 February 2006. VERSION OF THE DEFENSE The defense presented petitioner as the lone witness. He denied the charges and testified that while eating at the said Jollibee branch, he was arrested allegedly for extortion by NBI agents. When he was at the NBI Office, he was required to extract urine for drug examination, but he refused saying he wanted it to be done by the Philippine National Police (PNP) Crime Laboratory and not by the NBI. His request was, however, denied. He also requested to be allowed to call his lawyer prior to the taking of his urine sample, to no avail. 75

THE RULING OF THE RTC The Regional Trial Court (RTC) Branch 58 of Cebu City, in its Decision4 dated 6 June 2007, found the accused guilty beyond reasonable doubt of violating Section 15, Article II of R.A. 9165 and sentenced him to suffer the penalty of compulsory rehabilitation for a period of not less than six (6) months at the Cebu Center for the Ultimate Rehabilitation of Drug Dependents located at Salinas, Lahug, Cebu City.5 Petitioner filed an appeal assigning as error the RTC’s validation of the result of the urine test despite its dubiousness having been admitted in spite of the lack of legal basis for itsadmission. First, he alleges that the forensic laboratory examination was conducted despite the fact that he was not assisted by counsel, in clear violation of his constitutional right. Secondly, he was allegedly held guilty beyond reasonable doubt notwithstanding the lack of sufficient basis to convict him. THE RULING OF THE CA The CA found the appeal devoid of merit and affirmed the ruling of the RTC. Petitioner filed a timely Motion for Reconsideration. He argued that the CA overlooked prevailing jurisprudence, which states that drug testing conducted under circumstancessimilar to his would violate a person’s right to privacy. The appellate court nevertheless denied the motion. Petitioner thus filed the present Petition for Review on certiorari. He assigns as errors the use of hearsay evidence as basis for his conviction and the questionable circumstances surrounding his arrest and drug test. Respondent, through the Office of the Solicitor General, filed its Comment,6 saying that "petitioner’s arguments cannot be the subject of a petition for review on certiorariunder Rule 45, as they involve questions of facts which may not be the subject thereof; after his arraignment, he can no longer contest the validity of his arrest, less so at this stage of the proceedings; his guilt has been adequately established by direct evidence; and the manner in which the laboratory examination was conducted was grounded on a valid and existing law. THE ISSUE We deem it proper to give due course to this Petition by confronting head-on the issue of whether or not the drug test conducted upon the petitioner is legal. OUR RULING We declare that the drug testconducted upon petitioner is not grounded upon any existing law or jurisprudence. We gloss over petitioner’s non-compliance with the Resolution7 ordering him to submit clearly legible duplicate originals or certified true copies of the assailed Decision and Resolution. Petitioner was charged with use of dangerous drugs in violation of the law, the pertinent provision of which reads: Section 15. Use of Dangerous Drugs. – A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense, subject to the provisions of Article VIII of this Act. If apprehended using any dangerous drug for the second time, he/she shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine ranging from Fifty thousand pesos (P50,000.00) to Two hundred thousand pesos (P200,000.00): Provided,That this Section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of this Act, in which case the provisions stated therein shall apply.8

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The RTC subsequently convicted petitioner, ruling that the following elements of Section 15 were established: (1) the accused was arrested; (2) the accused was subjected to drug test; and (3) the confirmatory test shows that he used a dangerous drug. Disregarding petitioner’s objection regarding the admissibility of the evidence, the lower court also reasoned that "a suspect cannot invoke his right to counsel when he is required to extract urine because, while he is already in custody, he is not compelled to make a statement or testimony against himself. Extracting urine from one’s body is merely a mechanical act, hence, falling outside the concept of a custodial investigation." We find the ruling and reasoning of the trial court, as well as the subsequent affirmation by the CA, erroneous on three counts. The drug test in Section 15 does not cover persons apprehended or arrested for any unlawful act, but only for unlawful acts listed under Article II of R.A. 9165. First, "[a] person apprehended orarrested" cannot literally mean any person apprehended or arrested for any crime.The phrase must be read in context and understood in consonance with R.A. 9165. Section 15 comprehends persons arrested or apprehended for unlawful acts listed under Article II of the law. Hence, a drug test can be made upon persons who are apprehended or arrested for, among others, the "importation,"9 "sale, trading, administration, dispensation, delivery, distribution and transportation",10"manufacture"11 and "possession"12 of dangerous drugs and/or controlled precursors and essential chemicals; possession thereof "during parties, social gatherings or meetings" 13 ; being "employees and visitors of a den, dive or resort";14 "maintenance of a den, dive or resort";15 "illegal chemical diversion of controlled precursors and essential chemicals" 16 ; "manufacture or delivery"17 or "possession"18 of equipment, instrument, apparatus, and other paraphernalia for dangerous drugs and/or controlled precursors and essential chemicals; possession of dangerous drugs "during parties, social gatherings or meetings"19 ; "unnecessary"20 or "unlawful"21 prescription thereof; "cultivation or culture of plantsclassified as dangerous drugs or are sources thereof"; 22 and "maintenance and keeping of original records of transactions on dangerous drugs and/orcontrolled precursors and essential chemicals."23 To make the provision applicable to all persons arrested or apprehended for any crime not listed under Article II is tantamount to unduly expanding its meaning. Note thataccused appellant here was arrested in the alleged act of extortion. A charge for violation of Section 15 of R.A. 9165 is seen as expressive of the intent of the law to rehabilitate persons apprehended or arrested for the unlawful acts enumerated above instead of charging and convicting them of other crimes with heavier penalties. The essence of the provision is more clearly illustrated in People v. Martinez24 as follows: On a final note, this Court takes the opportunity to be instructive on Sec. 11 (Possession of Dangerous Drugs) and Sec. 15 (Use of Dangerous Drugs) of R.A. No. 9165, withregard to the charges that are filed by law enforcers. This Court notes the practice of law enforcers of filing charges under Sec. 11 in cases where the presence of dangerous drugs as basis for possession is only and solely in the form of residue, being subsumed under the last paragraph of Sec. 11. Although not incorrect, it would be more in keeping withthe intent of the law to file charges under Sec. 15 instead in order to rehabilitate first time offenders of drug use, provided thatthere is a positive confirmatory test result as required under Sec. 15.The minimum penalty under the last paragraph of Sec. 11 for the possession of residue isimprisonment of twelve years and one day, while the penalty under Sec. 15 for first time offenders of drug use is a minimum of six months rehabilitation in a government center. To file charges under Sec. 11 on the basis of residue alone would frustrate the objective of the law to rehabilitate drug users and provide them with an opportunity to recover for a second chance at life. In the case at bench, the presence of dangerous drugs was only in the form of residue on the drug paraphernalia, and the accused were found positive for use of dangerous drugs. Granting that the arrest was legal, the evidence obtained admissible, and the chain of custody intact, the law enforcers should have filed charges under Sec. 15, R.A. No. 9165 or for use of dangerous drugs and, if there was no residue at all, they should have been charged under Sec. 14 (Possession of Equipment, 77

Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings). Sec. 14 provides that the maximum penalty under Sec. 12(Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs) shall be imposed on any person who shall possess any equipment, instrument, apparatus and other paraphernalia for dangerous drugs. Under Sec. 12, the maximum penalty is imprisonment of four years and a fine of P50,000.00. In fact, under the same section, the possession of such equipment, apparatus or other paraphernalia is prima facieevidence that the possessor has used a dangerous drug and shall be presumed to have violated Sec. 15. In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls on law enforcers and prosecutors in dangerous drugs cases to exercise proper discretion in filing charges when the presence of dangerous drugs isonly and solely in the form of residue and the confirmatory test required under Sec. 15 is positive for use of dangerous drugs.In such cases, to afford the accused a chance to be rehabilitated, the filing of charges for or involving possession of dangerous drugs should only be done when another separate quantity of dangerous drugs, other than mere residue, is found in the possession of the accused as provided for in Sec. 15. (Emphasis supplied) Furthermore, making the phrase "a person apprehended or arrested" in Section 15 applicable to all persons arrested or apprehended for unlawful acts, not only under R.A. 9165 but for all other crimes, is tantamount to a mandatory drug testing of all persons apprehended or arrested for any crime. To overextend the application of thisprovision would run counter to our pronouncement in Social Justice Society v. Dangerous Drugs Board and Philippine Drug Enforcement Agency, 25 to wit: x x x [M]andatory drug testing can never be random and suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor’s office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy. To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 6195. Drug testing in this case would violate a person’s right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves. (Emphasis supplied) The drug test is not covered by allowable non-testimonial compulsion. We find that petitioner never raisedthe alleged irregularity of his arrest before his arraignment and raises the issue only now before this tribunal; hence, he is deemed to have waived his right to question the validity of his arrest curing whatever defect may have attended his arrest.26 However, "a waiver of an illegal warrantless arrest does not mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest."27 We are aware of the prohibition against testimonial compulsion and the allowable exceptions to such proscription. Cases where non-testimonial compulsion has been allowed reveal, however, that the pieces of evidence obtained were all material to the principal cause of the arrest. The constitutional right of an accused against self-incrimination proscribes the use of physical or moral compulsion to extort communications from the accused and not the inclusion of his body in evidence when it may be material. Purely mechanical acts are not included in the prohibition as the accused does not thereby speak his guilt, hence the assistance and guiding hand ofcounsel is not required. (People vs. Olvis, 238 Phil. 513 [1987]) The essence of the right against selfincrimination is testimonial compulsion, that is, the giving of evidence against himself through a testimonial act. (People vs. Casinillo, 213 SCRA 777 [1992]; People vs. Tranca, 235 SCRA 455 [1994]; People vs. Rondero, 378 Phil. 123 [1999]) Hence,it has been held that a woman charged with adultery may be compelled to submit to physical examination to determine her pregnancy; (Villaflor vs. Summers, 41 Phil. 62 [1920]) and an accused may be compelled to submit to physical examination and to have a substance taken from his body for medical determination as to whether he was suffering from gonorrhea which was contracted by his victim;(U.S. vs. Tan Teng, 23 Phil. 145 [1912]) to expel 78

morphine from his mouth; (U.S. vs. Ong Siu Hong, 36 Phil. 735 [1917]) to have the outline of his foot traced todetermine its identity with bloody footprints; (U.S. vs. Salas, 25 Phil. 337 [1913]; U.S. vs. Zara, 42 Phil. 308 [1921]) and to be photographed or measured, or his garments or shoes removed or replaced, or to move his body to enable the foregoing things to be done.(People vs. Otadora, 86 Phil. 244 [1950])28 (Emphasis supplied) In the instant case, we fail to see howa urine sample could be material to the charge of extortion.1âwphi1 The RTC and the CA, therefore, both erred when they held that the extraction of petitioner’s urine for purposes of drug testing was "merely a mechanical act, hence, falling outside the concept of a custodial investigation." We note a case where a urine sample was considered as admissible. In Gutang v. People, 29 the petitioner therein and his companions were arrested in connection with the enforcement of a search warrant in his residence. A PNP-NARCOM team found and confiscated shabu materials and paraphernalias. The petitioner and his companions in that case were also asked to give urine samples, which yielded positive results. Later, the petitioner therein was found guilty of the crime of illegal possession and use of prohibited drugs. Gutang claimed that the latter’s urine sample was inadmissible in evidence, since it was derived in effect from an uncounselled extrajudicial confession. In the Gutang et al.case, the Court clarified that "what the Constitution prohibits is the use of physical or moral compulsion to extort communication from the accused, but not an inclusion of his body in evidence, when it may be material." The situation in Gutangwas categorized as falling among the exemptions under the freedom from testimonial compulsion since what was sought tobe examined came from the body of the accused. The Court said: This was a mechanical act the accused was made to undergo which was not meant to unearth undisclosedfacts but to ascertain physical attributes determinable by simple observation. In fact, the record shows that petitioner and his co-accused were not compelled to give samples of their urine but they in fact voluntarily gave the same when they were requested to undergo a drug test. Assuming arguendothat the urine samples taken from the petitioner are inadmissible in evidence, we agree with the trial court that the record is replete with other pieces of credible evidence including the testimonial evidence of the prosecution which point to the culpability of the petitioner for the crimes charged. We emphasize that the circumstances in Gutangare clearly different from the circumstances of petitioner in the instant case.1awp++i1 First, Gutang was arrested in relation to a drug case. Second, he volunteered to give his urine. Third, there were other pieces of evidence that point to his culpability for the crimes charged. In the present case, though, petitioner was arrested for extortion; he resisted having his urine sample taken; and finally, his urine sample was the only available evidencethat was used as basis for his conviction for the use of illegal drugs. The drug test was a violation of petitioner’s right to privacy and right against self-incrimination. It is incontrovertible that petitioner refused to have his urine extracted and tested for drugs. He also asked for a lawyer prior to his urine test. He was adamant in exercising his rights, but all of his efforts proved futile, because he was still compelled to submit his urine for drug testing under those circumstances. The pertinent provisions in Article III of the Constitution are clear: Section 2. The right of the people to be securein 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.

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Section 17. No person shall be compelled to be a witness against himself. In the face of these constitutional guarantees, we cannot condone drug testing of all arrested persons regardless of the crime or offense for which the arrest is being made. While we express our commendation of law enforcement agents as they vigorously track down offenders intheir laudable effort to curb the pervasive and deleterious effects of dangerous drugs on our society, they must, however, be constantly mindful of the reasonable limits of their authority, because it is not unlikely that in their clear intent to purge society of its lawless elements, they may be knowingly or unknowingly transgressing the protected rights of its citizens including even members of its own police force. WHEREFORE, premises considered, the assailed Decision dated 22 June 2011 issued by the Twentieth Division, and the Resolution dated 2 February 2012 issued by the former Twentieth Division of the Court of Appeals, in CA-G.R. C.R. No. 00670 are SET ASIDE. Petitioner is hereby ACQUITTED. SO ORDERED.

G.R. No. 189833

February 5, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. JAVIER MORILLA Y AVELLANO, Accused-Appellant. RESOLUTION PEREZ, J.: Before us is an appeal filed by accused-appellant Javier Morilla y Avellano (Morilla) from the Decision1 of the Court of Appeals which affirmed his conviction and that of his co-accused Ronnie Mitra y Tena (Mayor Mitra) by the trial court, sentencing them 2 to suffer the penalty of life imprisonment and to pay a fine of P10,000,000.00 each. The Regional Trial Court Judgment On 15 October 2001, Morilla, Mayor Mitra, Willie Yang y Yao (Yang) and Ruel Dequilla y Regodan (Dequilla) were charged in a criminal information as follows: That on or about October 13, 2001, in Barangay Kiloloran, Municipality of Real, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, one of them an incumbent mayor of the Municipality of Panukulan, Quezon Province, who all belong to an organized/syndicate crime group as they all help one another, for purposes of gain in the transport of illegal drugs, and in fact, conspiring and confederating together and mutually aiding and abetting one another, did then and there wilfully, unlawfully, and feloniously transport by means of two (2) motor vehicles, namely a Starex van bearing plate number RWT-888 with commemorative plate to read "Mayor" and a municipal ambulance of Panukulan, Quezon Province, methamphetamine hydrochloride, a regulated drug which is commonly known as shabu, and with an approximate weight of five hundred three point sixty eight (503.68) kilos, without authority whatsoever.3 After trial, the Regional Trial Court of Quezon City4 on 1 August 2007 convicted Morilla and his coaccused Mayor Mitra, then incumbent Mayor of Panukulan, Quezon, of illegal transport5 of methamphetamine hydrochloride, commonly known as shabu, with an approximate weight of five hundred three point sixty eight (503.68) kilos. However, it absolved Dequilla and Yang due to the prosecution’s failure to present sufficient evidence to convict them of the offense charged. The dispositive of the decision reads: 80

WHEREFORE, premises considered, judgment is hereby rendered finding accused Ronnie Mitra y Tena and Javier Morilla y Avellana GUILTY beyond reasonable doubt of the offense charged. Accordingly, both accused are hereby sentenced to suffer the penalty of life imprisonment and to pay a fine of P10,000,000.00 each. Accused Willie Yang y Yao and Ruel Dequilla y Regodan are hereby ACQUITTED for failure of the prosecution to prove their guilt beyond reasonable doubt and are ordered immediately released from custody unless held for some other lawful cause. The methamphetamine hydrochloride ordered retained by the Court as representative sample which is still in the custody of the PNP Crime Laboratory is ordered turned over to the Philippine Drug Enforcement Agency for proper disposition.6 The trial court found valid the search conducted by police officers on the vehicles driven by Mayor Mitra and Morilla, one with control number 888 and the other an ambulance with plate number SFK372, as the police officers have already acquired prior knowledge that the said vehicles were suspected to be used for transportation of dangerous drugs. During the checkpoint in Real, Quezon, the information turned out to be accurate and indeed, the two accused had in their motor vehicles more than five hundred kilos of methamphetamine hydrochloride.7 The trial court dismissed the arguments of Mayor Mitra that he was without any knowledge of the contents of the sacks and that he was merely requested to transport them to Manila on board his Starex van. He explained that he only accommodated the request of a certain Ben Tan because the latter bought his fishing boat. It likewise dismissed the defense of ambulance driver Morilla of lack of knowledge of the illegality of the contents. Morilla insisted that he thought that he was just transporting wooden tiles and electronic spare parts together with Dequilla. The other passenger of the ambulance, Yang, in his defense, did not bother to inquire about the contents of the vehicle as he was merely an accommodated passenger of the ambulance. The court rejected the defenses presented by Morilla and Mayor Mitra as they were caught in flagrante delicto of transporting dangerous drugs in two vehicles driven by each of them. Absent any convincing circumstance to corroborate their explanations, the validity of their apprehension was sustained.8 The ruling of conspiracy between Mayor Mitra and Morilla was based on the testimonies of the four accused themselves. It was found by the trial court that the two vehicles, the Starex van driven by Mayor Mitra and the ambulance van driven by Morilla, left Infanta, Quezon en route to Manila. The Starex van which was ahead of the ambulance was able to pass the checkpoint set up by the police officers. However, the ambulance driven by Morilla was stopped by police officers. Through the untinted window, one of the police officers noticed several sacks inside the van. Upon inquiry of the contents, Morilla replied that the sacks contained narra wooden tiles. Unconvinced, the police officers requested Morilla to open the rear door of the car for further inspection. When it was opened, the operatives noticed that white crystalline granules were scattered on the floor, prompting them to request Morilla to open the sacks. At this moment, Morilla told the police officers that he was with Mayor Mitra in an attempt to persuade them to let him pass. 9 His request was rejected by the police officers and upon inspection, the contents of the sacks turned out to be sacks of methamphetamine hydrochloride.10 This discovery prompted the operatives to chase the Starex van of Mayor Mitra. The police officers were able to overtake the van and Mayor Mitra was asked to stop. They then inquired if the mayor knew Morilla. On plain view, the operatives noticed that his van was also loaded with sacks like the ones found in the ambulance. Thus, Mayor Mitra was also requested to open the door of the vehicle for inspection. At this instance, Mayor Mitra offered to settle the matter but the same was rejected. Upon examination, the contents of the sacks were likewise found to contain sacks of methamphetamine hydrochloride.11 The two other accused in this case, Dequilla and Yang, were acquitted by the trial court for failure on the part of the prosecution to establish their guilt beyond reasonable doubt. The court ruled that Dequilla’s and Yang’s mere presence inside the vehicle as passengers was inadequate to prove that they were also conspirators of Mayor Mitra and Morilla.12 The Court of Appeals Decision 81

On 13 July 2009, the appellate court affirmed the ruling of the trial court. It upheld the finding of conspiracy between Mayor Mitra and Morilla in their common intent to transport several sacks containing methamphetamine hydrochloride on board their respective vehicles. The singularity of their intent to illegally transport methamphetamine hydrochloride was readily shown when Morilla agreed to drive the ambulance van from Infanta, Quezon to Manila together with Mayor Mitra, who drove the lead vehicle, the Starex van.13 The appellate court likewise dismissed the argument of lack of knowledge of the illegal contents of the sacks. The claim that the sacks were loaded with wooden tiles was implausible due to the obvious disparity of texture and volume.14 Court’s Ruling We affirm the ruling but modify the penalty imposed. In his supplemental brief, Morilla raised the issues: (1) whether he may be convicted for conspiracy to commit the offense charged sans allegation of conspiracy in the Information, and (2) whether the prosecution was able to prove his culpability as alleged in the Information.15 We dismiss his arguments. Morilla primarily cites the provision on Sec. 1(b), Rule 115 of the Rules on Criminal Procedure 16 to substantiate his argument that he should have been informed first of the nature and cause of the accusation against him. He pointed out that the Information itself failed to state the word conspiracy but instead, the statement "the above-named accused, one of them an incumbent mayor of the Municipality of Panukulan, Quezon Province, who all belong to an organized/syndicated crime group as they all help one another, did then and there wilfully, unlawfully and feloniously transport x x x." He argued that conspiracy was only inferred from the words used in the Information.17 Even assuming that his assertion is correct, the issue of defect in the information, at this point, is deemed to have been waived due to Morilla’s failure to assert it as a ground in a motion to quash before entering his plea.18 Further, it must be noted that accused Morilla participated and presented his defenses to contradict the allegation of conspiracy before the trial and appellate courts. His failure or neglect to assert a right within a reasonable time warrants a presumption that the party entitled to assert it either has abandoned it or declined to assert it.19 The finding of conspiracy by both courts is correct. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.20 To determine conspiracy, there must be a common design to commit a felony.21 Morilla argues that the mere act of driving the ambulance on the date he was apprehended is not sufficient to prove that he was part of a syndicated group involved in the illegal transportation of dangerous drugs. This argument is misplaced. In conspiracy, it need not be shown that the parties actually came together and agreed in express terms to enter into and pursue a common design. The assent of the minds may be and, from the secrecy of the crime, usually inferred from proof of facts and circumstances which, taken together, indicate that they are parts of some complete whole.22 In this case, the totality of the factual circumstances leads to a conclusion that Morilla conspired with Mayor Mitra in a common desire to transport the dangerous drugs. Both vehicles loaded with several sacks of dangerous drugs, were on convoy from Quezon to Manila. Mayor Mitra was able to drive through the checkpoint set up by the police operatives. When it was Morilla’s turn to pass through the checkpoint, he was requested to open the rear door for a routinary check. Noticing white granules scattered on the floor, the police 82

officers requested Morilla to open the sacks. If indeed he was not involved in conspiracy with Mayor Mitra, he would not have told the police officers that he was with the mayor. His insistence that he was without any knowledge of the contents of the sacks and he just obeyed the instruction of his immediate superior Mayor Mitra in driving the said vehicle likewise bears no merit. Here, Morilla and Mayor Mitra were caught in flagrante delicto in the act of transporting the dangerous drugs on board their vehicles. "Transport" as used under the Dangerous Drugs Act means "to carry or convey from one place to another."23 It was well established during trial that Morilla was driving the ambulance following the lead of Mayor Mitra, who was driving a Starex van going to Manila. The very act of transporting methamphetamine hydrochloride is malum prohibitum since it is punished as an offense under a special law. The fact of transportation of the sacks containing dangerous drugs need not be accompanied by proof of criminal intent, motive or knowledge. 24 In a similar case of People v. Libnao,25 this Court upheld the conviction for illegal transportation of marijuana of Libnao and Nunga, who were caught carrying a bag full of marijuana leaves when they were flagged down on board a passing tricycle at a checkpoint. However, we modify the penalty imposed by the trial court as affirmed by the Court of Appeals. Originally, under Section 15 of Republic Act No. 6425,26 the penalty for illegal transportation of methamphetamine hydrochloride was imprisonment ranging from six years and one day to twelve years and a fine ranging from six thousand to twelve thousand pesos. Pursuant to Presidential Decree No. 1683,27 the penalty was amended to life imprisonment to death and a fine ranging from twenty to thirty thousand pesos. The penalty was further amended in Republic Act No. 7659, 28 where the penalty was changed to reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos. From the foregoing, we sustain the imposed penalty of fine of P10,000,00.00 to be paid by each of the accused but amend the penalty to reclusion perpetua following the provisions of Republic Act No. 7659 and the principle of retroactive application of lighter penalty. Reclusion perpetua entails imprisonment for at least thirty (30) years after which the convict becomes eligible for pardon. It also carries with it accessory penalties, namely: perpetual special disqualification, etc. Life imprisonment, on the other hand, does not appear to have any definite extent or duration and carries no accessory penalties.29 The full particulars are in Ho Wai Pang v. People,30 thus: As to the penalties imposed by the trial court and as affirmed by the appellate court, we find the same in accord with law and jurisprudence. It should be recalled that at the time of the commission of the crime on September 6, 1991, Section 15 of R.A. No. 6425 was already amended by Presidential Decree No. 1683. The decree provided that for violation of said Section 15, the penalty of life imprisonment to death and a fine ranging from P20,000.00 toP30,000.00 shall be imposed. Subsequently, however, R.A. No. 7659 further introduced new amendments to Section 15, Article III and Section 20, Article IV of R.A. No. 6425, as amended. Under the new amendments, the penalty prescribed in Section 15 was changed from "life imprisonment to death and a fine ranging fromP20,000.00 to P30,000.00" to "reclusion perpetua to death and a fine ranging from P500,000.00 to P10 million." On the other hand, Section 17 of R.A. No. 7659 amended Section 20, Article IV of R.A. No. 6425 in that the new penalty provided by the amendatory law shall be applied depending on the quantity of the dangerous drugs involved. The trial court, in this case, imposed on petitioner the penalty of reclusion perpetua under R.A. No. 7659 rather than life imprisonment ratiocinating that R.A. No. 7659 could be given retroactive application, it being more favorable to the petitioner in view of its having a less stricter punishment.1âwphi1 We agree. In People v. Doroja, we held:

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"In People v. Martin Simon (G.R. No. 93028, 29 July 1994) this Court ruled (a) that the amendatory law, being more lenient and favorable to the accused than the original provisions of the Dangerous Drugs Act, should be accorded retroactive application, x x x." And, since "reclusion perpetua is a lighter penalty than life imprisonment, and considering the rule that criminal statutes with a favorable effect to the accused, have, as to him, a retroactive effect," the penalty imposed by the trial court upon petitioner is proper. Consequently, the Court sustains the penalty of imprisonment, which is reclusion perpetua, as well as the amount of fine imposed by the trial court upon petitioner, the same being more favorable to him.31 WHEREFORE, premises considered, the petition is DENIED and the assailed 13 July 2009 Decision of the Court of Appeals in CA-G.R. CR-H.C. 02967 is AFFIRMED WITH MODIFICATION with respect to the penalty to be imposed as Reclusion Perpetua instead of Life Imprisonment and payment of fine of P10,000,000.00 by each of the accused.

G.R. No. 192235

July 6, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. ROLANDO LAYLO y CEPRES, Appellant. DECISION CARPIO, J.: The Case Before the Court is an appeal assailing the Decision1 dated 28 January 2010 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 03631. The CA affirmed the Decision2 dated 16 September 2008 of the Regional Trial Court (RTC) of Binangonan, Rizal, Branch 67, in Criminal Case No. 06-017, convicting appellant Rolando Laylo y Cepres (Laylo) of violation of Section 26(b), Article II (Attempted Sale of Dangerous Drugs)3 of Republic Act No. 91654 (RA 9165) or the Comprehensive Dangerous Drugs Act of 2002. The Facts On 21 December 2005, two separate Informations against appellant Laylo and Melitona Ritwal (Ritwal) were filed with the RTC of Binangonan, Rizal, Branch 67, docketed as Criminal Case Nos. 06-017 and 06-018, respectively. The information against Laylo states: Criminal Case No. 06-017 That on or about the 17th day of December, 2005, in the Municipality of Binangonan, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law to sell any dangerous drug, did then and there willfully, unlawfully, and knowingly attempt to sell, deliver, and give away shabu to PO1 Angelito G. Reyes, 0.04 gram of white crystalline substance contained in two (2) heat-sealed transparent plastic sachets which were found positive to the test for Methylamphetamine Hydrochloride, also known as shabu, a dangerous drug, thus commencing the commission of the crime of illegal sale but did not perform all the acts of execution which would produce such crime by reason of some cause or accident other than the accused’s own spontaneous desistance, that is, said PO1 Angelito G. Reyes introduced himself as policeman, arrested the accused and confiscated the two (2) above-mentioned sachets from the latter. CONTRARY TO LAW.5 Upon arraignment, both accused pleaded not guilty. Joint trial on the merits ensued. However, during the trial, Ritwal jumped bail and was tried in absentia. Thus, Ritwal was deemed to have waived the 84

presentation of her evidence and the case was submitted for decision without any evidence on her part. The prosecution presented two witnesses: Police Officer 1 (PO1) Angelito G. Reyes (PO1 Reyes) and PO1 Gem A. Pastor (PO1 Pastor), the poseur-buyers in the attempted sale of illegal drugs. The prosecution summed up its version of the facts: In the afternoon of 17 December 2005, PO1 Reyes and PO1 Pastor, both wearing civilian clothes, were conducting anti-drug surveillance operations at Lozana Street, Calumpang, Binangonan, Rizal. While the police officers were in front of a sari-sari store at around 5:40 p.m., appellant Laylo and his live-in partner, Ritwal, approached them and asked, "Gusto mong umiskor ng shabu?" PO1 Reyes replied, "Bakit mayroon ka ba?" Laylo then brought out two plastic bags containing shabu and told the police officers, "Dos (P200.00) ang isa." Upon hearing this, the police officers introduced themselves as cops. PO1 Reyes immediately arrested Laylo. Ritwal, on the other, tried to get away but PO1 Pastor caught up with her. PO1 Pastor then frisked Ritwal and found another sachet of shabu in a SIM card case which Ritwal was carrying. PO1 Reyes and PO1 Pastor marked the three plastic sachets of shabu recovered from Laylo and Ritwal and forwarded them to the Philippine National Police Crime Laboratory for forensic testing. Forensic Chemist Police Inspector Yehla C. Manaog conducted the laboratory examination on the specimens submitted and found the recovered items positive for methylamphetamine hydrochloride or shabu, a dangerous drug. The police officers charged Laylo for attempted sale of illegal drugs and used the two plastic sachets containing shabu as basis while Ritwal was charged for possession of illegal drugs using as basis the third sachet containing 0.02 grams of shabu. The defense, on the other hand, presented different versions of the facts. The witnesses presented were: appellant Laylo; Laylo’s three neighbors namely Rodrigo Panaon, Jr., Marlon de Leon, and Teresita Marquez. Laylo testified that while he and his common-law wife, Ritwal, were walking on the street, two men grabbed them. The two men, who they later identified as PO1 Reyes and PO1 Pastor, dragged them to their house. Once inside, the police officers placed two plastic sachets in each of their pockets. Afterwards, they were brought to the police station where, despite protests and claims that the drugs were planted on them, they were arrested and charged. To corroborate Laylo’s testimony, the defense presented Laylo’s three neighbors. Marlon de Leon (de Leon), also a close friend of the couple, testified that he was taking care of the Laylo and Ritwal’s child when he heard a commotion. He saw men, whom de Leon identified as assets, holding the couple and claimed that he saw one of them put something, which he described as "plastic," in the left side of Laylo’s jacket. Rodrigo Panaon, Jr. (Panaon) narrated that on 17 December 2005, at around 5:00 or 6:00 p.m., he was on his way home when he saw Laylo arguing with three men in an alley. He overheard Laylo uttering, "Bakit ba? Bakit ba?" Later, Panaon saw a commotion taking place at Laylo’s backyard. The three men arrested Laylo while the latter shouted, "Mga kapitbahay, tulungan ninyo kami, kami’y dinadampot." Then Panaon saw someone place something inside the jacket of Laylo as he heard Laylo say, "Wala kayong makukuha dito." Teresita Marquez (Marquez) testified that while she was fetching water from the well on 17 December 2005, at around 5:00 or 6:00 p.m., she heard Laylo’s son shouting, "Amang, Amang." Marquez then saw the child run to his father, who was with several male companions. Then someone pulled Laylo’s collar and frisked him. Marquez overheard someone uttering, "Wala po, wala po." Marquez went home after the incident. At around 9:00 in the evening, Ritwal’s daughter visited her and borrowed money for Laylo and Ritwal’s release. Marquez then accompanied Ritwal’s daughter to the municipal hall, where a man demanded P40,000.00 for the couple’s release. In its Decision dated 16 September 2008, the RTC found Laylo and Ritwal guilty beyond reasonable doubt of violations of RA 9165. The RTC gave credence to the testimonies of the police officers, 85

who were presumed to have performed their duties in a regular manner. The RTC stated that Reyes and Pastor were straightforward and candid in their testimonies and unshaken by cross-examination. Their testimonies were unflawed by inconsistencies or contradictions in their material points. The RTC added that the denial of appellant Laylo is weak and self-serving and his allegation of planting of evidence or frame-up can be easily concocted. Thus, Laylo’s defense cannot be given credence over the positive and clear testimonies of the prosecution witnesses. The dispositive portion of the decision states: We thus find accused Rolando Laylo GUILTY beyond reasonable doubt of violating Section 26(b) of R.A. No. 9165 and sentence him to suffer a penalty of life imprisonment and to pay a fine of P500,000.00. We also find accused Melitona Ritwal GUILTY beyond reasonable doubt of violating Section 11 of R.A. No. 9165 and illegally possessing a total of 0.02 grams of Methylamphetamine Hydrochloride or shabu and accordingly sentence her to suffer an indeterminate penalty of 12 years and one day as minimum to 13 years as maximum and to pay a fine ofP300,000.00. Let the drug samples in this case be forwarded to the Philippine Drug Enforcement Agency (PDEA) for proper disposition. Furnish PDEA with a copy of this Decision per OCA Circular No. 70-2007. SO ORDERED.6 Laylo filed an appeal with the CA. Laylo imputed the following errors on the RTC: I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT OF THE OFFENSE CHARGED DESPITE THE PROSECUTION WITNESS’ PATENTLY FABRICATED ACCOUNTS. II. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT OF THE OFFENSE CHARGED WHEN HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT. III. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT DESPITE THE APPREHENDING OFFICERS’ FAILURE TO PRESERVE THE INTEGRITY OF THE ALLEGED SEIZED SHABU.7 The Ruling of the Court of Appeals In a Decision dated 28 January 2010, the CA affirmed the decision of the RTC. The dispositive portion of the decision states: WHEREFORE, premises considered, the appeal is DISMISSED for lack of merit. The challenged decision of the court a quo is AFFIRMED. Costs against the accused-appellant. SO ORDERED.8 Hence, this appeal. The Ruling of the Court The appeal lacks merit. The elements necessary for the prosecution of illegal sale of drugs are: (1) the identity of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment. 9 In the present case, PO1 Reyes narrated in court the circumstances of the illegal sale: PROS. ARAGONES: Q: What time did you proceed to that place of surveillance? 86

A: 5:40 p.m., Ma’am. Q: And what happened when you and PO1 Gem Pastor went there? A: When we were making standby at a nearby store there was a man talking with a woman, the man asked me if we want to have a shot of shabu. Q: What was your reply? A: "Bakit, meron ka ba?" Q: How did that other person react to that question, what did he tell you, if any? A: "Gusto mong umiskor ng shabu?" Q: What happened after that? A: I replied, "Bakit meron ka ba?" then he showed me two small plastic bags containing shabu, Ma’am. Q: How big is that bag, Mr. Witness? A: Small, Ma’am. Q: Can you tell us the size? A: (Demonstrating) Almost one inch the size of a cigarette, Ma’am. COURT: It was in a plastic not in foil? A: Yes, your Honor. PROS. ARAGONES: Q: After showing you two plastic bags, what happened? A: I introduced myself as a police officer then I caught this man and confiscated the two small plastic bag containing shabu. Q: How about the lady? A: My partner caught the woman because she was intending to run away and he got from her right hand Smart SIM card case containing one small plastic.10 PO1 Pastor corroborated the testimony of PO1 Reyes: PROS. ARAGONES: Q: Mr. Witness, while you were conducting surveillance on December 17, 2005, what happened? A: While we were conducting surveillance at Lozana Street, Calumpang, Binangonan, Rizal, while we were at the store, two (2) persons approached us, one male and one female, Ma’am. Q: Who were those persons? Did you come to know the name of those persons? A: At that time I don’t know the names but when they were brought to the police station I came to know their names, Ma’am. Q: What are the names of these two persons? A: Rolando Laylo and Melitona Ritwal, Ma’am. Q: At that time they approached you during the time you were conducting surveillance at Lozana Street, what happened? A: The male person approached PO1 Reyes and asked if "iiskor", Ma’am. Q: What was the reply of PO1 Reyes? A: He answered "Bakit meron ka ba?" Q: When that answer was given by Reyes, what did that male person do? A: He produced two (2) small plastic sachets containing allegedly shabu and he said "dos ang isa." COURT: What do you mean by "dos ang isa"? A: Php 200.00, Your Honor. PROS. ARAGONES: Q: Where were you when that male person produced two (2) small plastic sachets? A: I was beside PO1 Reyes, Ma’am. Q: After he showed the plastic sachets containing drugs, what happened next? A: We introduced ourselves as policemen, Ma’am. Q: After you introduced yourselves, what happened next? A: PO1 Reyes arrested the male person while I arrested the female person, Ma’am. Q: Why did you arrest the woman? A: At that time, she was about to run I confiscated from her a SIM card case, Ma’am. COURT: What was the contents of the SIM card case? A: One (1) piece of alleged shabu, Your Honor.11 From the testimonies given, PO1 Reyes and PO1 Pastor testified that they were the poseur-buyers in the sale. Both positively identified appellant as the seller of the substance contained in plastic sachets which were found to be positive for shabu. The same plastic sachets were likewise identified by the prosecution witnesses when presented in court. Even the consideration of P200.00 for each sachet 87

had been made known by appellant to the police officers. However, the sale was interrupted when the police officers introduced themselves as cops and immediately arrested appellant and his live-in partner Ritwal. Thus, the sale was not consummated but merely attempted. Thus, appellant was charged with attempted sale of dangerous drugs. Section 26(b), Article II of RA 9165 provides: Section 26. Attempt or Conspiracy. – Any attempt or conspiracy to commit the following unlawful acts shall be penalized by the same penalty prescribed for the commission of the same as provided under this Act: xxx (b) Sale, trading, administration, dispensation, delivery, distribution and transportation of any dangerous drug and/or controlled precursor and essential chemical; xxx Here, appellant intended to sell shabu and commenced by overt acts the commission of the intended crime by showing the substance to PO1 Reyes and PO1 Pastor.12 The sale was aborted when the police officers identified themselves and placed appellant and Ritwal under arrest. From the testimonies of the witnesses, the prosecution was able to establish that there was an attempt to sell shabu. In addition, the plastic sachets were presented in court as evidence of corpus delicti. Thus, the elements of the crime charged were sufficiently established by evidence. Appellant claims that he was a victim of a frame up. However, he failed to substantiate his claim. The witnesses presented by the defense were not able to positively affirm that illegal drugs were planted on appellant by the police officers when they testified that "they saw someone place something inside appellant’s jacket." In Quinicot v. People,13 we held that allegations of frame-up and extortion by police officers are common and standard defenses in most dangerous drugs cases. They are viewed by the Court with disfavor, for such defenses can easily be concocted and fabricated. Appellant asserts that it is unbelievable that he would be so foolish and reckless to offer to sell shabu to strangers. In People v. de Guzman,14 we have ruled that peddlers of illicit drugs have been known, with ever increasing casualness and recklessness, to offer and sell their wares for the right price to anybody, be they strangers or not. What matters is not the existing familiarity between the buyer and the seller, or the time and venue of the sale, but the fact of agreement as well as the act constituting the sale and delivery of the prohibited drugs. Further, appellant did not attribute any ill-motive on the part of the police officers. The presumption of regularity in the performance of the police officers’ official duties should prevail over the selfserving denial of appellant.15 In sum, we see no reason to disturb the findings of the RTC and CA.1avvphi1 Appellant was correctly found to be guilty beyond reasonable doubt of violating Section 26(b), Article II of RA 9165. WHEREFORE, we DISMISS the appeal. We AFFIRM the Decision dated 28 January 2010 of the Court of Appeals in CA-G.R. CR-H.C. No. 03631. SO ORDERED.

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