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EN BANC

[G.R. NO. 142675. July 22, 2005]

VICENTE AGOTE Y MATOL, Petitioners, v. HON. MANUEL F. LORENZO, Presiding Judge, RTC, Branch 43, Manila and PEOPLE OF THE PHILIPPINES, Respondents.

D E C I S I O N

GARCIA, J.:

In this appeal by way of a Petition for Review on Certiorari under Rule 45 of the Rules of Court, petitioner Vicente Agote y Matol seeks to annul and set aside the following resolutions of the Court of Appeals in CA-G.R. SP No. 2991-UDK, to wit:

  • 1. Resolution dated September 14, 1999, 1 dismissing the Petition for Certiorari with Prayer for the

Issuance of a Temporary Restraining Order filed by the petitioner against the Honorable Manuel F. Lorenzo, Presiding Judge, Regional Trial Court, Manila, Branch 43 for refusing to retroactively apply in his favor Republic Act No. 8294 2 ; and,

  • 2. Resolution dated February 8, 2000, 3 denying petitioner's motion for reconsideration.

As culled from the pleadings on record, the following are the undisputed factual antecedents:

Petitioner Vicente Agote y Matol was earlier charged before the sala of respondent judge with Illegal Possession of Firearms under Presidential Decree No. 1866 4 and violation of COMELEC Resolution No. 2826 5 (Gun Ban), docketed as Criminal Cases No. 96-149820 and 96-149821, respectively, allegedly committed, as follows:

CRIMINAL CASE NO. 96-149820

That on or about April 27, 1996 in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully, knowingly have in possession and under his custody and control, One (1) .38 cal. Rev. without serial no. with four (4) live bullets. Without first having secured from the proper authorities the necessary license therefor.

CONTRARY TO LAW.

CRIMINAL CASE NO. 96-149821

That on or about April 27, 1996, in the City of Manila, Philippines, the said accused did then and there, willfully, unlawfully and knowingly have in his possession and under his custody and control one (1) . 38 cal. Rev. without serial number, with four (4) live ammunition/bullets in the chamber, by then and there carrying the same along V. Mapa Ext. Sta. Mesa, this City, which is a public place on the aforesaid date which is covered by an election period, without first securing the written authority from the COMELEC, as provided for by the COMELEC Resolution No. 2828, in relation to RA No. 7166 (Gun Ban).

CONTRARY TO LAW.

On arraignment, petitioner pleaded "Not Guilty" to both charges. Thereafter, the two (2) cases were tried jointly.

Eventually, in a decision dated May 18, 1999, the trial court rendered a judgment of conviction in both cases, separately sentencing petitioner to an indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to eighteen (18) years eight (8) months and one (1) day of reclusion temporal,as maximum, in accordance with PD. No. 1866 in Crim. Case No. 96-149820(illegal possession of firearm), and to a prison term of one (1) year in Crim. Case No. 96-149821(violation of the COMELEC Resolution on gun ban).

Meanwhile, on June 6, 1997, Republic Act No. 8294 6 was approved into law.

Pointing out, among others, that the penalty for illegal possession of firearms under P.D. No. 1866 has already been reduced by the subsequent enactment of Rep. Act No. 8294, hence, the latter law, being favorable to him, should be the one applied in determining his penalty for illegal possession of firearms, petitioner moved for a reconsideration of the May 18, 1999 decision of the trial court.

In its order dated July 15, 1999, 7 however, the trial court denied petitioner's motion, saying:

While the law (R.A. 8294) is indeed favorable to the accused and therefore should be made retroactive we are also guided by Art. 4 of the Civil Code which states that laws shall have no retroactive effect, unless the contrary is provided. Republic Act 8294 did not so provide that it shall have a retroactive effect. The Supreme Court likewise in the case of Padilla v. CA declared: 'The trial court and the respondent court are bound to apply the governing law at the time of the appellant's commission of the offense for it is a rule that laws are repealed only by subsequent ones. Indeed, it is the duty of judicial officers to respect and apply the law as it stands.

Therefrom, petitioner went to the Court of Appeals on a Petition for Certiorari with prayer for a temporary restraining order, thereat docketed as CA-G.R. SP No. 2991-UDK.

In the herein assailed resolution dated September 14, 1999, 8 the appellate court dismissed petitioner's recourse on two (2) grounds, to wit: (a) the remedy of certiorari availed of by petitioner is improper since he should have appealed from the July 15, 1999 order of the trial court; and (b) lack of jurisdiction, as the issue involved is a pure question of law cognizable by the Supreme Court.

With his motion for reconsideration having been denied by the appellate court in its subsequent resolution of February 8, 2000, 9 petitioner is now with us, submitting for resolution the following issues: (1) whether the Court of Appeals erred in dismissing his Petition for Certiorari; and (2) whether the courts below erred in not giving Rep. Act No. 8294 a retroactive application.

The petition is partly meritorious.

At the outset, it must be stressed that petitioner never put in issue the factual findings of the trial court. What he questions is said court's legal conclusion that Rep. Act No. 8294 cannot be retroactively applied to him. Unquestionably, the issue raised is one purely of law. As we have said in Macawiwili Gold Mining and Development Co., Inc. v. Court of Appeals: 10

For a question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the litigants or any one of them. And the distinction is well-known: there is a question of law in a given case when the doubt or difference arises as to what the law is on a certain

state of facts; there is a question of fact when the doubt or difference arises as to the truth or the falsehood of the facts alleged.

Considering that "judgments of regional trial courts in the exercise of their original jurisdiction are to be elevated to the Court of Appeals in cases when appellant raises questions of fact or mixed questions of fact and law", while "appeals from judgments of the [same courts] in the exercise of their original jurisdiction must be brought directly to the Supreme Court in cases where the appellant raises only questions of law" 11 , petitioner should have appealed the trial court's ruling to this Court by way of a Petition for Review on Certiorari in accordance with Rule 45 of the 1997 Rules of Civil Procedure, as amended, 12 pursuant to Rule 41, Section 2 (c) of the same Rules, viz:

SEC. 2. Modes of appeal.'

  • (a) xxx xxx xxx

  • (b) xxx xxx xxx

  • (c) Appeal by certiorari. - In all cases where only questions of law are raised or involved, the appeal

shall be to the Supreme Court by Petition for Review on Certiorari in accordance with Rule 45.

By reason, then, of the availability to petitioner of the remedy of a Petition for Review under Rule 45, his right to resort to a Petition for Certiorari under Rule 65 was effectively foreclosed, precisely because one of the requirements for the availment of the latter remedy is that "there should be no appeal, or any plain, speedy and adequate remedy in the ordinary course of law", 13 the remedies of appeal and certiorari being mutually exclusive and not alternative or successive. 14

As correctly observed by the Court of Appeals, what petitioner should have done was to take an appeal from the trial court's order of July 15, 1999 which denied his motion for reconsideration of the May 18, 1999 judgment of conviction.

Petitioner's case is worse compounded by the fact that even his period for appeal had already prescribed when he filed with the Court of Appeals his certiorari petition in CA-G.R. SP No. 2991-UDK. The Rollo of said case reveals that petitioner received his copy of the trial court's order denying his motion for reconsideration on July 20, 1999. As the same Rollo shows, it was only on August 23, 1999, or after more than fifteen (15) days when petitioner filed his wrong remedy of certiorari with the appellate court.

Be that as it may, the Court feels that it must squarely address the issue raised in this case regarding the retroactivity of Rep. Act No. 8294, what with the reality that the provisions thereof are undoubtedly favorable to petitioner. For this purpose, then, we shall exercise our prerogative to set aside technicalities in the Rules and "hold the bull by its horns", so to speak. After all, the power of this Court to suspend its own rules whenever the interest of justice requires is not without legal authority or precedent. In Solicitor General, et. al. v. The Metropolitan Manila Authority, 15 we held:

Unquestionably, the Court has the power to suspend procedural rules in the exercise of its inherent power, as expressly recognized in the Constitution, to promulgate rules concerning 'pleading, practice and procedure in all courts. 'In proper cases, procedural rules may be relaxed or suspended in the interest of substantial justice, which otherwise may be miscarried because of a rigid and formalistic adherence to such rules. xxx

x x x

We have made similar rulings in other cases, thus:

Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. xxx Time and again, this Court has suspended its own rules and excepted a particular case from their operation whenever the higher interests of justice so require.

We shall now proceed to determine whether the provisions of Rep. Act No. 8294 amending P.D. No. 1866 can be retroactively applied to this case.

Here, the two (2) crimes for which petitioner was convicted by the trial court, i.e., (1) illegal possession of firearms under P.D. No. 1866 and (2) violation of COMELEC Resolution No. 2826 on gun ban, were both committed by the petitioner on April 27, 1996. For the crime of illegal possession of firearms in Crim. Case No. 96-149820, he was sentenced to suffer a prison term ranging from ten (10) years and one (1) day of prision mayor, as minimum, to (18) eighteen years, eight (8) months and one (1) day of reclusion temporal, as maximum, in accordance with P.D. No. 1866, Section 1 of which reads:

SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms of Ammunition. 'The penalty of reclusion temporal in its maximum period to reclusion perpetuashall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition. (Emphasis supplied)ςrαlαωlιbrαrÿ

When Rep. Act No. 8294 took effect on July 6, 1997, 16 the penalty for illegal possession of firearms was lowered, depending on the class of firearm possessed, viz:

SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows:

'SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. 'The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed.

The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. (Emphasis supplied)ςrαlαωlιbrαrÿ

Based on the foregoing, petitioner contends that the reduced penalty under Rep. Act No. 8294 should be the one imposed on him. Significantly, in its Manifestation In Lieu of Comment, 17 the Office of the Solicitor General agrees with the petitioner, positing further that the statement made by this Court in People v. Jayson 18 to the effect that the provisions for a lighter penalty under Rep. Act No. 8294 does not apply if another crime has been committed, should not be applied to this case because the proviso in Section 1 of said law that "no other crime was committed" must refer only to those crimes committed with the use of an unlicensed firearm and not when the other crime is not related to the use thereof or where the law violated merely criminalizes the possession of the same, like in the case of election gun ban, as here.

As early as August 1997, the month after Rep. Act No. 8294 took effect, 19 this Court has pronounced in Gonzales v. Court of Appeals 20 that said law must be given retroactive effect in favor of those accused under P.D. No. 1866. Since then, this Court had consistently adhered to the Gonzalesruling. 21

For sure, in People v. Valdez, 22 where the accused was charged with the complex crime of multiple murder with double frustrated murder and illegal possession of firearms and ammunitions under two separate informations, this Court even took a bolder stance by applying Rep. Act No. 8294 retroactively so that the accused therein may not be convicted of the separate crime of illegal possession of firearms, but refused to apply the same retroactively so as to aggravate the crime of murder. The Valdez ruling had been applied in a host of subsequent cases. 23

Yet, in other cases, 24 although the Court had given Rep. Act No. 8294 retroactive effect so as to prevent the conviction of an accused of the separate crime of illegal possession of firearm when the said unlicensed firearm was "used" to commit the crime of murder or homicide, the Court did not appreciate this "use" of such unlicensed firearm as an aggravating circumstance as provided therein, when the "use" of an unlicensed firearm was not specifically alleged in the information, as required by the Rules on Criminal Procedure.

In the light of the existing rulings and jurisprudence on the matter, the present case takes center stage presenting, this time, another twist, so to speak. Petitioner, who was charged of illegal possession of firearms was also charged of another offense: Violation of COMELEC Resolution No. 2826 (Gun Ban), but the unlicensed firearm was not "used" or discharged in this case. The question then which appears to be of first impression, is whether or not the unlicensed firearm should be actually "used" and discharged in the course of committing the other crime in order that Sec. 1, Rep. Act No. 8294 will apply so that no separate crime of illegal possession of firearms may be charged.

Let us take a look at the jurisprudence once again. In Cupcupin v. People, 25 the accused was charged and convicted for two (2) separate crimes of illegal possession of firearms, and illegal possession of prohibited drugs. In the more recent case of People v. Almeida, 26 however, although the accused was acquitted of the separate charge of illegal possession of firearm for lack of evidence, the Court nevertheless made the following clear pronouncement:

Furthermore, in any event, the Court has ruled in previous cases that in view of the enactment of Republic Act No. 8294, there can be no separate offense of illegal possession of firearms and ammunition if there is another crime committed such as, in this case, that of illegal possession of dangerous drugs. (Emphasis supplied)ςrαlαωlιbrαrÿ

In Almeida, it should be noted that the unlicensed firearm was merely found lying around, together with the prohibited drugs, and therefore, was not being "used" in the commission of an offense.

Given this Court's aforequoted pronouncement in Almeida, can the accused in the present case still be separately convicted of two (2) offenses of illegal possession of firearms and violation of gun ban, more so because as in Almeida, the unlicensed firearm was not actually "used" or discharged in committing the other offense? chanroblesvirtualawlibrary

In People v. Walpan M. Ladjaalam, 27 this Court, interpreting the subject proviso in Section 1 of Rep. Act No. 8294, applied the basic principles in criminal law, and categorically held:

  • xxx A simple reading thereof shows that if an unlicensed firearm is used in the commission

of any crime, there can be no separate offense of simple illegal possession of

firearms.Hence, if the 'other crime' is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms.

Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of RA 8294's simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the legislative intent to favor the accused. Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide. xxx

xxx xxx xxx

  • xxx The law is clear: the accused can be convicted of simple illegal possession of firearms,

provided that 'no other crime was committed by the person arrested'. If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we. (Emphasis supplied).

The aforementioned ruling was reiterated and applied in the subsequent cases of People v. Garcia, 28 where the judgment of conviction of the accused-appellants for illegal possession of firearms was set aside there being another crime - kidnapping for ransom - which they were perpetrating at the same time; People v. Bernal, 29 where the Court retroactively applied Rep. Act No. 8294 in accused- appellant's favor because it would mean his acquittal from the separate offense of illegal possession of firearms; and People v. Bustamante, 30 where, in refusing to convict the accused-appellant of the separate offense of illegal possession of firearms, the Court declared that insofar as it is favorable to the appellant, the provisions of Rep. Act No. 8294 should be applied liberally and retroactively in that appellant must be acquitted of the charge of illegal possession of firearms.

Guided by the foregoing, the Court cannot but set aside petitioner's conviction in Criminal Case No. 96-149820 for illegal possession of firearm since another crime was committed at the same time, i.e., violation of COMELEC Resolution No. 2826 or the Gun Ban.

Admittedly, this ruling is not without misgivings considering that it would mean petitioner's acquittal of the more serious offense of illegal possession of firearms which carries a much heavier penalty than violation of the COMELEC gun-ban resolution. However, as we have rationalized in Ladjaalam: 31

  • xxx Indeed, the accused may evade conviction for illegal possession of firearms by using such

weapons in committing an even lighter offense, like alarm and scandal or slight physical injuries, both

of which are punishable by arresto menor. This consequence, however, necessarily arises from the

language of RA 8294, whose wisdom is not subject to the Court's review. Any perception that the result reached here appears unwise should be addressed to Congress. Indeed, the Court has no discretion to give statutes a new meaning detached from the manifest intendment and language of the legislature. Our task is constitutionally confined only to applying the law and jurisprudence to the proven facts, and we have done so in this case.

The solemn power and duty of the Court to interpret and apply the law does not include the power to correct by reading into the law what is not written therein. While we understand respondent People'scontention that the "use" of the firearm seemed to have been the main consideration during the deliberations of the subject provision of Rep. Act No. 8294, the fact remains that the word "use" never found its way into the final version of the bill which eventually became Rep. Act No. 8294. The Court's hands are now tied and it cannot supply the perceived deficiency in the final version without contravening the most basic principles in the interpretation of penal laws which had always leaned in favor of the accused. Under our system of government where powers are allocated to the three (3) great branches, only the Legislature can remedy such deficiency, if any, by proper amendment of Sec. 1 of Rep. Act No. 8294.

As written, Sec. 1, Rep. Act No. 8294 restrains the Court from convicting petitioner of the separate crime of illegal possession of firearm despite the fact that, as in Almeida, the unlicensed firearm was not actually "used". For sure, there is, in this case, closer relation between possession of unlicensed firearm and violation of the COMELEC gun-ban than the illegal possession of unlicensed firearm to the crime of illegal possession of prohibited drugs in Almeida.

WHEREFORE, Criminal Case No. 96-149820 for illegal possession of firearms is hereby DISMISSED while the judgment of conviction in Criminal Case No. 96-149821 for violation of COMELEC Resolution No. 2826 in relation to Rep. Act No. 7166 (Gun Ban), is AFFIRMED.

Since petitioner has already served more than the penalty imposed upon him by the trial court in Criminal Case No. 96-149821, his immediate release from custody is hereby ORDERED unless detained for some other lawful cause.

SO ORDERED.

A.M. No. MTJ-05-1608

FIRST DIVISION

February 28, 2006

(formerly OCA I.P.I. No. 00-910-MTJ)

BERNARDO P. BETOY, SR. * , Complainant, vs. JUDGE MAMERTO Y. COLIFLORES, Respondent.

R E S O L U T I O N

AUSTRIA-MARTINEZ, J.:

In a Letter-Complaint dated July 12, 2000, signed by Bernardo Betoy, Sr. (complainant) charges Judge Mamerto Y. Coliflores (respondent) with Grave Abuse of Discretion and

Authority, Conduct Unbecoming as a Judge and Gross Negligence Resulting to Procedural Lapses (Dereliction of Duty). 1 Complainant attached to the Letter-Complaint an Affidavit executed by his wife Lucia Betoy citing paragraphs Nos. 30. 32, 35 and 36 thereof to wit:

  • 30. That the statements on page 4 of the said RESOLUTION dated December 8, 1999 of

the Honorable Prosecutor RUSTICO D. PADERANGA is unfounded and arbitrary and perjured himself, (sic) the fact that the Honorable Judge MAMERTO Y. COLIFLORES have erred in issuing the SEARCH & SIEZURE ORDER dated September 17, 1999 for not conforming to the strict compliance with legal requirements (sic) on issuance and not even bother to think and wonder how in reality my residence was regarded as armory by the applicant and his witnesses for Search Warrant but instead issued such warrant solely basing on the affidavits of deponents police officers wherein during the search, none from among the property seized in our residence can provide proof of the allegations on the face of the Deposition and Application for SEARCH WARRANT of which Police Inspector CESAR KYAMCO ARQUILLANO, SPO2 REX LOMUSAD CABRERA and SPO1 JESUS CORTUNA ROJAS are liable for PERJURY. x x x

  • x x x x

  • 32. That the SEARCH & SEIZURE ORDER (S/W #0854) dated September 17, 1999 by the

Honorable Judge MAMERTO Y. COLIFLORES should be declared NULL & VOID because it violates the CONSTITUTION, the fact issuance of it solely relies (sic) on the mere affidavits of deponents police officers which should be considered hearsay and not information personally known to the responding (sic) judge as required by settled jurisprudence through examination with probing and exhaustive questions of witnesses in determining probable cause in order for the Honorable Judge to prevent arbitrary and indiscriminate use of the WARRANT and therefore hold liable for PERJURY the herein respondent police officers, CESAR KYAMKO ARQUILLANO et al. for false declaration.

  • x x x x

  • 35. That almost nine months had passed reckoned from September 21, 1999 to date, but

the Honorable Judge MAMERTO Y. COLIFLORES did not even upheld (sic) his Search & Seizure Order (S/W #0854) by not conducting a judicial inquiry from the implementing law enforcement officers (Police of CCPO-PNP/Agents of NBI Region 7) as to the whereabouts of the contraband items (assorted high powered firearms) as alleged, which is 48 hours upon served. x x x

  • 36. That the Honorable Judge MAMERTO Y. COLIFLORES appears being not responsible

of (sic) his issuance of Search & Seizure Order (S/W #0854) by his inaction and therefore

clearly shows his gesture of consent on the arbitrary and indiscriminate use of the said Warrant. x x x 2

as his bases in filing the present administrative complaint.

On September 5, 2000, respondent filed his Comment, portions of which read as follows:

With respect to Item No. 30 of the letter complaint of Bernardo Padilla Betoy, Sr., by virtue of the affidavit complaint of and executed by affiant-wife Lucia Udasco Betoy, that there was no proof from the allegations on the face of the deposition of the applicant Police Inspector Cesar Kyamko Arquillano, and its (sic) witnesses, that said residence is an armory.

It should be noted that the Judge issuing the Search Warrant could not go beyond what is not alleged in the application, considering that what is nexessary (sic) is the existence of a probable cause; and that they are probably guilty thereof, and that the investigation on the application for Search Warrant was made personally by the Presiding Judge thru searching questions and answers in writing and sworn to before him complying [with] statutory and constitutional requirements of the law.

With respect to item No. 32 of the Affidavit that the said Search Warrant be declared null and void for it solely relies on the Affidavit of the applicant and their witnesses, it should be remembered that the same could only be declared null and void if a motion is filed in Court and a hearing be conducted to that effect.

It should be noted that there was filed a Motion to Release Shotgun dated September 24,

  • 1999 by Atty. Cornelius Gonzalez and Atty. Vicente Fernandez II which was granted by the

undersigned-respondent per Order dated September 27, 1999, machine copy of which is hereto attached and made an integral part of this rejoinder, and another Urgent Motion for

Release of Air Rifle filed by the same counsel, Atty. Vicente Fernandez II dated June 5,

  • 2000 which was also granted by the undersigned per maching (sic) copy hereto attached.

With respect to Item No. 36 that the issuing judge, by his inaction clearly appears to have consented in the arbitrary and indiscriminate use of the Search Warrant. It should be remembered that the issuing judge has no physical control on the manner the Search Warrant was being implemented and conducted; what the issuing judge did emphasixed (sic) and applied (sic) was the statutory and constitutional requirements of the law in the issuance of the Search Warrant. 3

On August 28, 2002, the Court issued a Resolution referring the instant case to Hon. Rosabella M. Tormis, Executive Judge, MTCC, Cebu City, for investigation, report and recommendation. 4 In her Report dated December 2, 2004, Executive Judge Tormis found that respondent judge is not guilty of the charges filed against him relative to the issuance of the subject search warrant. 5

Meanwhile, respondent judge compulsorily retired on August 17, 2003.

On July 14, 2005, the Office of the Court Administrator (OCA) submitted to the Court a Memorandum 6 wherein it found that respondent judge was able to establish probable cause for the issuance of the questioned search warrant; that however, respondent judge is guilty of gross ignorance of the law for having failed to conduct a judicial inquiry as to the whereabouts of the seized firearms and ammunitions, in violation of Section 12(b), Rule 126 of the Revised Rules of Criminal Procedure. The OCA recommended that respondent judge be fined in the amount of P20,000.00, to be deducted from his retirement benefits.

In support of its findings, the OCA states in its Memorandum, thus:

Records show that respondent judge personally conducted the examination of the applicant for search warrant, P/Inspector Cesar Kyamko Arquillano, and his two witnesses, SPO2 Rex Lomusand (sic) Cabrera and SPO1 Jesus Cortuna Rojas. However, the questions propounded by the respondent judge were not as probing and exhaustive as the Rules require. As stressed in Roan v. Gonzales, the examination must be probing and exhaustive, not merely routinary or proforma, if the claimed probable cause is to be established. The examining magistrate must not simply rehash the contents of the affidavits but must take his own inquiry on the intent and justification of the application. In this case, respondent judge failed to ask follow-up questions on the circumstances surrounding the possession of illegal firearms and ammunition by complainants and two others during the examination. In fact, he failed to elicit information as to said circumstances from the applicant himself since the latter merely narrated that after their asset reported the presence of persons armed with some short and long firearms and ammunitions in the house of the complainants, they conducted a surveillance and casing operation on 30 August 1999 by renting a room in one of the neighboring houses of the complainants where they visibly saw the suspects. Despite the failure of P/Inspector Arquillano to categorically state that he saw the firearms, which were the subject of the search warrant, inside the house of the complainants, respondent judge did not ask questions that could have elicited such information. Nonetheless, while P/Inspector Arquillano cannot be said to have gained personal knowledge of the fact of possession of firearms by the complainants and two others, his two witnesses, SPO2 Cabrera and SPO1 Rojas, ably established said fact of possession, having sworn before respondent judge that they personally saw the suspects in possession of the firearms. These circumstances belie the claim of complainants that the declarations of the police officers in their affidavits are mere hearsay and do not constitute personal knowledge that would have otherwise made the issuance of Search Warrant No. 0894 (sic) irregular. With the first hand information on the fact of possession of firearms by the complainants and two others coming from the deponents themselves, particularly SPO2 Cabrera and SPO1 Rojas, respondent judge rightly established probable cause for the issuance of the questioned search warrant.

On the failure of respondent judge to conduct a judicial inquiry as to the whereabouts of the seized firearms and ammunitions, it appears that respondent judge failed to abide by the Rules in this respect. Paragraph (b), Section 12, Rule 126 of the Revised Rules of Criminal

Procedure requires the issuing judge to ascertain ten days after the issuance of the search warrant if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. Nothing in the records shows that a return of the questioned search warrant was made by the police officers. Neither did respondent judge claim in his comment that he complied with the above Rule. His lame excuse that the issuing judge has no physical control on the manner the Search Warrant was being implemented and conducted as his primordial concern only is the compliance with the statutory and constitutional requirements for the issuance of the search warrant betrays his ignorance of the Rules. The Rule heretofore mentioned requires the issuing judge, in case the return has been made, (a) to see to it that the officer forthwith deliver to him the property seized, together with a true inventory thereof duly verified under oath; and (b) to ascertain whether Section 11 of Rule 126 has been complied with. Should the issuing judge ascertain that the officers seizing the property under the warrant failed to follow the procedures mandated by the Rules, he may cite them in contempt of court. It appears that despite the absence of a return of the questioned search warrant, respondent judge failed to summon and require P/Inspector Arquillano to explain why no return was made.

This is not the first time that respondent judge was taken to task by the Court for gross ignorance of the law and procedure. In Tugot v. Judge Coliflores, the Court established that he did not observe the period within which to conduct the preliminary conference, as what he applied in an ejectment case was Rule 18 on pre-trial, instead of the provisions of the Rule on Summary Procedure. In imposing a fine in the amount of P20,000.00 upon respondent judge, the Court reminded him the judicial competence demands that judges should be proficient in both procedural and substantive aspects of the law. They have to exhibit more than just cursory acquaintance with statutes and procedural rules and be conversant, as well, with basic legal principles and well-settled authoritative doctrines. To the end that they be the personification of justice and rule of law, they should strive for a level of excellence exceeded only by their passion for truth. Anything less than this strict standard would subject them to administrative sanction. Respondent judge failed to take heed of this exhortation. 7

The Court does not fully agree with the findings of the OCA.

The Court finds that there is much to be desired in respondent judge’s examination of the applicant for the search warrant, P/Insp. Cesar Kyamko Arquillano (P/Insp. Arquillano) and his witnesses namely, SPO2 Rex Lomusad Cabrera (SPO2 Cabrera) and SPO1 Jesus Cortuna Rojas (SPO1 Rojas). Respondent judge failed to thoroughly examine the applicant and his witnesses in a manner that would sufficiently establish the existence of a probable cause to justify the issuance of a search warrant.

In Nala v. Judge Barroso, Jr. 8 , this Court had occasion to explain and discuss the definition of "probable cause" in relation to the issuance of a search warrant, to wit:

The "probable cause" for a valid search warrant has been defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed, and that objects sought in connection with the offense are in the place sought to be searched. This probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay. In determining its existence, the examining magistrate must make a probing and exhaustive, not merely routine or pro forma examination of the applicant and the witnesses. Probable cause must be shown by the best evidence that could be obtained under the circumstances. On the part of the applicant and witnesses, the introduction of such evidence is necessary especially where the issue is the existence of a negative ingredient of the offense charged, e.g., the absence of a license required by law. On the other hand, the judge must not simply rehash the contents of the affidavits but must make his own extensive inquiry on the existence of such license, as well as on whether the applicant and the witnesses have personal knowledge thereof.

In Paper Industries Corporation of the Philippines (PICOP) v. Asuncion, we declared as void the search warrant issued by the trial court in connection with the offense of illegal possession of firearms, ammunitions and explosives, on the ground, inter alia, of failure to prove the requisite probable cause. The applicant and the witness presented for the issuance of the warrant were found to be without personal knowledge of the lack of license to possess firearms of the management of PICOP and its security agency. They likewise did not testify as to the absence of license and failed to attach to the application a "no license certification" from the Firearms and Explosives Office of the Philippine National Police.

x x x x

In the case at bar, the search and seizure warrant was issued in connection with the offense of illegal possession of firearms, the elements of which are – (1) the existence of the subject firearm; and (2) the fact that the accused who owned or possessed it does not have the license or permit to possess the same. Probable cause as applied to illegal possession of firearms would therefore be such facts and circumstances which would lead a reasonably discreet and prudent man to believe that a person is in possession of a firearm and that he does not have the license or permit to possess the same. Nowhere, however, in the affidavit and testimony of witness Ruel Nalagon nor in PO3 Macrino L. Alcoser’s application for the issuance of a search warrant was it mentioned that petitioner had no license to possess a firearm. While Alcoser testified before the respondent judge that the firearms in the possession of petitioner are not licensed, this does not qualify as "personal knowledge" but only "personal belief" because neither he nor Nalagon verified, much more secured, a certification from the appropriate government agency that petitioner was not licensed to possess a firearm. This could have been the best evidence obtainable to prove that petitioner had no license to possess firearms and ammunitions, but the police officers failed to present the same. 9

As in the Nala case, the search warrant in the present case was issued in connection with the alleged illegal possession of firearms and ammunition by the present complainants. 10 However, the Court finds nothing in the depositions of P/Insp. Arquillano, SPO2 Cabrera and SPO1 Rojas to indicate that they had personal knowledge that herein complainant and his companions mentioned in the search warrant had no license or permit to possess firearms and ammunition. 11 Despite the glaring insufficiency of the allegations in their respective depositions, respondent judge still failed to elicit the necessary information during his examination of the said applicant and his witnesses to establish that complainant and his companions are indeed guilty of illegally possessing firearms and ammunition. During the taking of the depositions of the applicant and his two witnesses, respondent judge asked them if they have personal knowledge of facts that complainant and his companions are illegally possessing firearms. In response to respondent’s question P/Insp. Arquillano answered:

A – Yes, your Honor. Our "asset" went to our office and reported the presence of persons armed with One (1) pc. Cal. 357 rev; Two (2) pcs. M16 rifle; Four (4) pcs. Cal. 38 rev; Three (3) pcs. Cal. 45 pistol; Four (4) pcs. Shotguns and Assorted Ammunitions, that these suspects are seen by him visibly going in and out of their house. Our asset is one of the neighbors of the suspects. Through this information and together with my operatives we conducted surveillance and casing operation on August 30, 1999 and we rented a room in one of the houses in the neighborhood and thereat we can visibly saw (sic) the suspects. 12

SPO2 Cabrera and SPO1 Rojas also answered in the same manner, thus:

A – Yes, your Honor. Through the information given by our "asset", we started casing and surveillance of the said area sometime on August 30, 1999 and we decided to rent a room in the (sic) one of the houses in the neighborhood and we saw personally the firearms they illegally possess. 13

Judging from the succeeding questions propounded by respondent judge, it appears that he was satisfied with the answers of the applicant and his witnesses. However, the fact alone that complainant and his companions were seen wielding guns does not confirm nor verify that they illegally possess such weapons. The statement of SPO2 Cabrera and SPO1 Rojas in their deposition that they personally saw the firearms illegally possessed by complainant and his companions does not constitute "personal knowledge" of the illegality of such possession; instead, it merely qualifies as "personal belief." However, this belief was partly proven wrong when it was later found out that one of the seized firearms, a Shooter 12- gauge shotgun with Serial No. Sam 01109, is duly licensed. In fact, this compelled the respondent judge to release the same, together with 50 rounds of shotgun ammunition, in favor of complainant. 14 Hence, respondent judge should not have simply relied on the statements of the applicant and his witnesses. He should have probed further. Respondent judge could have directly asked the applicant and his witnesses if they have personal knowledge of the particular fact that the complainant and his companions do not have the

necessary license or permit to possess the firearms which are in their custody. In the alternative, he could have inquired if the applicant, or the office which he represents, was able to secure a certification from the appropriate government agency to the effect that complainant and his companions are, in fact, not given a license or permit to possess firearms. As the Court held in Nala 15 case, this certification is the best evidence obtainable to prove that complainant and his companions, indeed, have no license or permit to possess a firearm. Unfortunately, respondent judge failed to ask any of these questions. Thus, respondent judge fell short of the standard of competence required of magistrates in the performance of their functions. Specifically, he failed to observe Rule 1.01, Canon 1 and Rule 3.01, Canon 3 of the Code of Judicial Conduct, to wit:

Rule 1.01. – A judge should be the embodiment of competence, integrity, and independence.

Rule 3.01. – A judge shall be faithful to the law and maintain professional competence.

which exhorts judges to be the embodiment of professional competence.

As to respondent judge’s failure to conduct a judicial inquiry as to the whereabouts of the seized firearms and ammunitions, this Court agrees with the OCA that respondent judge was remiss in his duty of ascertaining if a return of the warrant has been made, and if there is none, to summon the person to whom the warrant was issued and require him to explain why no return was made.

However, what has been violated by respondent judge is not Section 12(b), Rule 126 of the Revised Rules of Criminal Procedure, as amended, considering that the questioned warrant was issued on September 17, 1999 while the amendments which incorporated the present Section 12, Rule 126 took effect only on December 1, 2000. Actually, the procedural rule violated by respondent judge was Guideline No. 5(g) of Administrative Circular No. 13 16 , issued by this Court on October 1, 1985, to wit:

x x x x

g. The search warrant shall be valid for ten (10) days from date of issuance, and after which the issuing judge should ascertain if the return has been made, and if there was none, should summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge should ascertain from the officer who seized the property under the warrant if a detailed receipt of the property seized was left with the lawful occupants of the premises in whose presence the search and seizure were made, or in the absence of such occupants, whether he left a receipt in the place in which he found the seized property in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, and should require that the property seized by virtue of the warrant shall be delivered to the judge who issued the

warrant. The judge should see to it that an accurate and true inventory of the property seized duly verified under oath is attached to the return and filed with the court; x x x

Respondent judge should know that his duty as a magistrate does not end when he issued the search warrant. While the Order of Search and Seizure issued by respondent judge directed the peace officers implementing the warrant to bring to him the property seized, respondent judge did not refute complainant’s allegation that he failed to inquire from the law-enforcement officers implementing the subject warrant as to the whereabouts of the seized firearms. Moreover, there is no evidence to show that respondent judge required the concerned law-enforcement officers to make an accurate and complete inventory of the seized firearms and submit the same to him. From the foregoing, it is clear that respondent judge failed to comply with the rules relative to the issuance and implementation of a search warrant.

Verily, this Court agrees with the OCA in holding that a judge is called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules. 17 It is imperative that he be conversant with basic legal principles and be aware of well-settled authoritative doctrines. 18 He should strive for excellence exceeded only by his passion for truth, to the end that he be the personification of justice and the rule of law. 19 To be able to render substantial justice and maintain public confidence in the legal system, they are expected to keep abreast of all laws, legal principles and prevailing jurisprudence and to remain conversant with them. 20 Everyone, especially a judge, is presumed to know the laws and apply them properly in all good faith. 21 Judicial competence requires no less. Ignorance of the law excuses no one -- least of all, a judge. 22 When the law is sufficiently basic, a judge owes it to his office to simply apply it; anything less than that would be gross ignorance of the law. 23 In Dizon, Jr. v. Judge Veneracion, 24 the respondent judge therein was found guilty of gross ignorance of the law for his failure to observe the rules governing determination of probable cause. Thus, for failing to observe the rules governing determination of probable cause and for non-compliance with the directives of Administrative Circular No. 13, the Court finds herein respondent guilty of gross ignorance of the law or procedure.

Under Section 8(9), Rule 140 of the Rules of Court, as amended, gross ignorance of the law or procedure is classified as a serious charge. Section 11(A) of the same Rule provides that the penalty to be imposed if a respondent is found guilty of a serious charge is either a fine of more than P20,000.00 but not more than P40,000.00, suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months, or dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations.

The OCA recommendation of fine of P20,000.00 is deemed just and reasonable.

WHEREFORE, respondent retired Judge Mamerto Y. Coliflores is found guilty of gross ignorance of the law. He is FINED P20,000.00 to be deducted from his retirement benefits.

SO ORDERED.

FIRST DIVISION [G.R. NO. 165483 : September 12, 2006]

RUJJERIC Z. PALAGANAS, 1 Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

CHICO-NAZARIO, J.:

For what is a man, what has he got? If not himself, then he has naught. To say the things he truly feels; And not the words of one who kneels.

The record shows I took the blows - And did it my way!

The song evokes the bitterest passions. This is not the first time the song "My Way" 2 has triggered violent behavior resulting in people coming to blows. In the case at bar, the few lines of the song depicted what came to pass when the victims and the aggressors tried to outdo each other in their rendition of the song.

In this Petition for Review on Certiorari 3 under Rule 45 of the Revised Rules of Court, petitioner Rujjeric Z. Palaganas prays for the reversal of the Decision of the Court of Appeals in CA-G.R. CR No. 22689 dated 30 September 2004, 4 affirming with modification the Decision of the Regional Trial Court (RTC), Branch 46, of Urdaneta, Pangasinan, in Criminal Cases No. U-9608, U-9609, and U-9610 and U-9634, dated 28 October 1998, 5 finding petitioner guilty beyond reasonable doubt of the crime of Homicide under Article 249 of the Revised Penal Code, and two (2) counts of Frustrated Homicide under Article 249 in relation to Articles 6 and 50 of the same Code.

On 21 April 1998, petitioner and his older brother, Ferdinand Z. Palaganas (Ferdinand), were charged under four (4) separate Informations 6 for two (2) counts of Frustrated Murder, one (1) count of Murder, and one (1) count for Violation of COMELEC Resolution No. 2958 7 relative to Article 22, Section 261, of the Omnibus Election Code, 8 allegedly committed as follows:

CRIMINAL CASE NO. U-9608

That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused armed with an unlicensed firearm, with intent to kill, treachery and evident premeditation, conspiring together, did then and there willfully, unlawfully and feloniously shoot SERVILLANO FERRER, JR. y Juanatas, inflicting upon him

"gunshot wound penetrating perforating abdomen, urinary bladder, rectum bullet sacral region," the accused having thus performed all the acts of execution which would have produced the crime of Murder as a consequence, but which nevertheless, did not produce it by reason of the causes independent of the will of the accused and that is due to the timely medical assistance rendered to said Servillano J. Ferrer, Jr. which prevented his death, to his damage and prejudice.

CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised Penal Code, as amended.

CRIMINAL CASE NO. U-9609

That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused armed with an unlicensed firearm, with intent to kill, treachery and evident premeditation, conspiring together, did then and there willfully, unlawfully and feloniously shoot MICHAEL FERRER alias "Boying Ferrer", inflicting upon him gunshot wound on the right shoulder, the accused having thus performed all the acts of execution which would have produced the crime of murder as a consequence, but which nevertheless, did not produce it by reason of the causes independent of the will of the accused and that is due to the medical assistance rendered to said Michael "Boying" Ferrer which prevented his death, to his damage and prejudice.

CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised Penal Code, as amended.

CRIMINAL CASE NO. U-9610

That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused armed with an unlicensed firearm,

with intent to kill, treachery and evident premeditation, conspiring together, did then and there willfully, unlawfully and feloniously shoot MELTON FERRER alias "TONY FERRER", inflicting upon him mortal gunshot wounds in the head and right thigh which caused the instantaneous death of said Melton "Tony" Ferrer, to the damage and prejudice of his heirs.

CONTRARY to Art. 248 of the Revised Penal Code, as amended by R.A. 7659.

CRIMINAL CASE NO. U-9634

That on or about January 16, 1998 which is within the election period at Poblacion, Manaoag, Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniously bear and carry one (1) caliber .38 without first securing the necessary permit/license to do the same.

CONTRARY to COMELEC RES. 2958 in relation with SEC. 261 of the OMNIBUS ELECTION CODE, as amended. 9 (Underscoring supplied.)

When arraigned on separate dates, 10 petitioner and Ferdinand entered separate pleas of "Not Guilty." Upon motion of Ferdinand, 11 the four cases were consolidated and were assigned to Branch 46 of the RTC in Urdaneta, Pangasinan. 12

The factual antecedents as viewed by the prosecution, are summarized in the Comment dated 18 April 2005 of the Office of the Solicitor General, 13 to wit:

On January 16, 1998, around 8:00 in the evening, brothers Servillano, [Melton] and Michael, all surnamed Ferrer were having a drinking spree in their house because [Melton], who was already living in San Fernando, La Union, visited his three brothers and mother at their house in Sitio Baloking, Poblacion, Manaoag,

Pangasinan. At 9:45 in the evening, the three brothers decided to proceed to Tidbits Videoke bar located at the corner of Malvar and Rizal Streets, Poblacion, Manaoag to continue their drinking spree and to sing. Inside the karaoke bar, they were having a good time, singing and drinking beer.

Thereafter, at 10:30 in the evening, Jaime Palaganas arrived together with Ferdinand Palaganas and Virgilio Bautista. At that time, only the Ferrer brothers were the customers in the bar. The two groups occupied separate tables. Later, when Jaime Palaganas was singing, [Melton] Ferrer sang along with him as he was familiar with the song [My Way]. Jaime however, resented this and went near the table of the Ferrer brothers and said in Pangasinan dialect "As if you are tough guys." Jaime further said "You are already insulting me in that way." Then, Jaime struck Servillano Ferrer with the microphone, hitting the back of his head. A rumble ensued between the Ferrer brothers on the one hand, and the Palaganases, on the other hand. Virgilio Bautista did not join the fray as he left the place. During the rumble, Ferdinand went out of the bar. He was however pursued by Michael. When Servillano saw Michael, he also went out and told the latter not to follow Ferdinand. Servillano and Michael then went back inside the bar and continued their fight with Jaime.

Meantime, Edith Palaganas, sister of Jaime and the owner of the bar, arrived and pacified them. Servillano noticed that his wristwatch was missing. Unable to locate the watch inside the bar, the Ferrer brothers went outside. They saw Ferdinand about eight (8) meters away standing at Rizal Street. Ferdinand was pointing at them and said to his companion, later identified as petitioner [Rujjeric] Palaganas, "Oraratan paltog mo lara", meaning "They are the ones, shoot them." Petitioner then shot them hitting Servillano first at the left side of the abdomen, causing him to fall on the ground, and followed by [Melton] who also fell to the ground. When Servillano noticed that [Melton] was no longer moving, he told

Michael "Bato, bato." Michael picked up some stones and threw them at petitioner and Ferdinand. The latter then left the place. Afterwards, the police officers came and the Ferrer brothers were brought to the Manaoag Hospital and later to Villaflor Hospital in Dagupan. Servillano later discovered that [Melton] was fatally hit in the head while Michael was hit in the right shoulder.

On the other hand, the defense, in its Appellant's Brief dated 3 December 1999, 14 asserted the following set of facts:

On January 16, 1998, at around 11:00 in the evening, after a drinking session at their house, the brothers Melton (Tony), Servillano (Junior) and Michael (Boying), all surnamed Ferrer, occupied a table inside the Tidbits Café and Videoke Bar and started drinking and singing. About thirty minutes later, Jaime Palaganas along with his nephew Ferdinand (Apo) and friend Virgilio Bautista arrived at the bar and occupied a table near that of the Ferrers'.

After the Ferrers' turn in singing, the microphone was handed over to Jaime Palaganas, who then started to sing. On his third song [My Way], Jaime was joined in his singing by Tony Ferrer, who sang loudly and in an obviously mocking manner. This infuriated Jaime, who then accosted Tony, saying, "You are already insulting us." The statement resulted in a free for all fight between the Ferrers', on one hand, and the Palaganases on the other. Jaime was mauled and Ferdinand, was hit on the face and was chased outside of the bar by Junior and Boying Ferrer.

Ferdinand then ran towards the house of the appellant Rujjeric Palaganas, his brother, and sought the help of the latter. Rujjeric, stirred from his sleep by his brother's shouts, went out of his house and, noticing that the van of his uncle was in front of the Tidbits Videoke Bar, proceeded to that place. Before reaching the bar, however, he was suddenly stoned by the Ferrer brothers and was hit on different parts of his body, so he turned around and struggled to

run towards his house. He then met his brother, Ferdinand, going towards the bar, so he tugged him and urged him to run towards the opposite direction as the Ferrer brothers continued pelting them with large stones. Rujjeric then noticed that Ferdinand was carrying a gun, and, on instinct, grabbed the gun from the latter, faced the Ferrer brothers and fired one shot in the air to force the brothers to retreat. Much to his surprise, however, the Ferrer brothers continued throwing stones and when (sic) the appellant was again hit several times. Unable to bear the pain, he closed his eyes and pulled the trigger.

On 28 October 1998, the trial court rendered its Decision finding petitioner guilty only of the crime of Homicide and two (2) counts of Frustrated Homicide. 15 He was, however, acquitted of the charge of Violation of COMELEC Resolution No. 2958 in relation to Section 261 of the Omnibus Election Code. 16 On the other hand, Ferdinand was acquitted of all the charges against him. 17

In holding that petitioner is liable for the crimes of Homicide and Frustrated Homicide but not for Murder and Frustrated Murder, the trial court explained that there was no conspiracy between petitioner and Ferdinand in killing Melton and wounding Servillano and Michael. 18 According to the trial court, the mere fact that Ferdinand "pointed" to where the Ferrer brothers were and uttered to petitioner "Araratan, paltog mo lara!" (They are the ones, shoot them!), does not in itself connote common design or unity of purpose to kill. It also took note of the fact that petitioner was never a participant in the rumble inside the Tidbits Cafe Videoke Bar (videoke bar) on the night of 16 January 1998. He was merely called by Ferdinand to rescue their uncle, Jaime, who was being assaulted by the Ferrer brothers. It further stated that the shooting was instantaneous and without any prior plan or agreement with Ferdinand to execute the same. It found that petitioner is solely liable for killing Melton and for wounding Servillano and Michael,

and that Ferdinand is not criminally responsible for the act of petitioner.

Further, it declared that there was no treachery that will qualify the crimes as murder and frustrated murder since the Ferrer brothers were given the chance to defend themselves during the shooting incident by stoning the petitioner and Ferdinand. 19 It reasoned that the sudden and unexpected attack, without the slightest provocation on the part of the victims, was absent. In addition, it ratiocinated that there was no evident premeditation as there was no sufficient period of time that lapsed from the point where Ferdinand called the petitioner for help up to the point of the shooting of the Ferrer brothers. 20 Petitioner was sleeping at his house at the time he heard Ferdinand calling him for help. Immediately, petitioner, still clad in pajama and sleeveless shirt, went out of his room to meet Ferdinand. Thereafter, both petitioner and Ferdinand went to the videoke bar where they met the Ferrer brothers and, shortly afterwards, the shooting ensued. In other words, according to the trial court, the sequence of the events are so fast that it is improbable for the petitioner to have ample time and opportunity to then plan and organize the shooting.

Corollarily, it also stated that petitioner cannot successfully invoke self-defense since there was no actual or imminent danger to his life at the time he and Ferdinand saw the Ferrer brothers outside the videoke bar. 21 It noted that when petitioner and Ferdinand saw the Ferrer brothers outside the videoke bar, the latter were not carrying any weapon. Petitioner then was free to run or take cover when the Ferrer brothers started pelting them with stones. Petitioner, however, opted to shoot the Ferrer brothers. It also stated that the use by petitioner of a gun was not a reasonable means to prevent the attack of the Ferrer brothers since the latter were only equipped with stones, and that the gun was deadlier compared to stones. Moreover, it also found that petitioner used an unlicensed firearm in shooting the Ferrer brothers. 22

As regards the Violation of COMELEC Resolution No. 2958, in relation to Section 261 of the Omnibus Election Code, the trial court acquitted the petitioner of the offense as his use and possession of a gun was not for the purpose of disrupting election activities. 23 In conclusion, the trial court held:

WHEREFORE, JUDGMENT is hereby rendered as follows:

  • 1. Under CRIM. CASE NO. U-9610, [Rujjeric] PALAGANAS is hereby

CONVICTED beyond reasonable doubt of the crime of HOMICIDE (Not Murder) with the use of an unlicensed firearm. The penalty imposable is in its maximum period which is 20 years. The Court sentences [Rujjeric] Palaganas to suffer the penalty of Reclusion Temporal in its maximum period or 20 years of imprisonment; and to pay the heirs of [MELTON] Ferrer the sum of P7,791.50 as actual

medical expenses of [MELTON] Ferrer; P500,000.00 as moral damages representing unearned income of [MELTON]; P50,000.00 for the death of [MELTON]; P50,000.00 for exemplary damages and P100,000.00 for burial and funeral expenses.

Ferdinand Palaganas is hereby ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for failure to prove the guilt of Ferdinand Palaganas beyond reasonable doubt.

  • 2. Under CRIM. CASE NO. U-9608, [Rujjeric] PALAGANAS is hereby

CONVICTED beyond reasonable doubt of the crime of FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use of an unlicensed firearm, the Court sentences him to suffer the penalty of Prision Mayor in its maximum period or 12 years of imprisonment and to pay Servillano Ferrer the sum of P163,569.90 for his medical expenses and P50,000.00 for exemplary damages;

Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for failure to prove the guilt of Ferdinand Palaganas beyond reasonable doubt.

3.

Under CRIM. CASE NO. U-9609, [Rujjeric] PALAGANAS is hereby

CONVICTED beyond reasonable doubt of the crime of FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use of an unlicensed firearm, the Court sentences him to suffer the penalty of Prision Mayor in its maximum period or 12 years of imprisonment; and to pay Michael Ferrer the sum of P2,259.35 for his medical expenses and P50,000.00 for exemplary damages;

Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for failure to prove the guilt of Ferdinand Palaganas beyond reasonable doubt.

Ordering accused [Rujjeric] Palaganas to pay Mrs. Elena Ferrer, the mother of the Ferrer brothers, the amount of P100,000.00 as attorney's fees in CRIM. CASES NOS. U-9608, U-9609, U-9610.

  • 4. Under CRIM. CASE NO. U-9634, for failure of the prosecution to

prove the guilt of [Rujjeric] Palaganas beyond reasonable doubt of the crime of Violation of COMELEC Resolution No. 2958 in relation with Section 261 of the Omnibus Election Code, the Court ACQUITS [RUJJERIC] PALAGANAS. 24

Aggrieved, the petitioner appealed the foregoing Decision of the RTC dated 28 October 1998, before the Court of Appeals. In its Decision dated 30 September 2004, the Court of Appeals affirmed with modifications the assailed RTC Decision. In modifying the Decision of the trial court, the appellate court held that the mitigating circumstance of voluntary surrender under Article 13, No. 7, of the Revised Penal Code should be appreciated in favor of petitioner since the latter, accompanied by his counsel, voluntarily appeared before the trial court, even prior to its issuance of a warrant of arrest against him. 25 It also stated that the Indeterminate Sentence Law should be applied in imposing the penalty upon the petitioner. 26 The dispositive portion of the Court of Appeals' Decision reads:

WHEREFORE, the judgment of conviction is hereby AFFIRMED, subject to the MODIFICATION that the penalty to be imposed for the crimes which the appellant committed are as follows:

(1) For Homicide (under Criminal Case No. U-9610), the appellant is ordered to suffer imprisonment of ten (10) years of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum. Appellant is also ordered to pay the heirs of Melton Ferrer civil indemnity in the amount of P50,000.00, moral damages in the amount of P50,000.00 without need of proof and actual damages in the amount of P43,556.00.

(2) For Frustrated Homicide (under Criminal Case No. U-9609), the appellant is hereby ordered to suffer imprisonment of four (4) years and two (2) months of prision correcional as minimum to ten (10) years of prision mayor as maximum. Appellant is also ordered to pay Michael Ferrer actual damages in the amount of P2,259.35 and moral damages in the amount of P30,000.00.

(3) For Frustrated Homicide (under Criminal Case No. U-9608), the appellant is hereby penalized with imprisonment of four (4) years and two (2) months of prision correcional as minimum to ten (10) years of prision mayor as maximum. Appellant is also ordered to pay Servillano Ferrer actual damages in the amount of P163,569.90 and moral damages in the amount of P30,000.00. 27

On 16 November 2004, petitioner lodged the instant Petition for Review before this Court on the basis of the following arguments:

I.

THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE JUDGMENT OF CONVICTION OF THE TRIAL COURT.

II.

THE HONORABLE COURT OF APPEALS ERRED IN NOT ACQUITTING ACCUSED-APPELLANT ON THE GROUND OF LAWFUL SELF- DEFENSE. 28

Anent the first issue, petitioner argued that all the elements of a valid self-defense are present in the instant case and, thus, his acquittal on all the charges is proper; that when he fired his gun on that fateful night, he was then a victim of an unlawful aggression perpetrated by the Ferrer brothers; that he, in fact, sustained an injury in his left leg and left shoulder caused by the stones thrown by the Ferrer brothers; that the appellate court failed to consider a material evidence described as "Exhibit O"; that "Exhibit O" should have been given due weight since it shows that there was slug embedded on the sawaliwall near the sign "Tidbits Café and Videoke Bar"; that the height from which the slug was taken was about seven feet from the ground; that if it was true that petitioner and Ferdinand were waiting for the Ferrer brothers outside the videoke bar in order to shoot them, then the trajectory of the bullets would have been either straight or downward and not upward considering that the petitioner and the Ferrer brothers were about the same height (5'6"-5'8"); that the slug found on the wall was, in fact, the "warning shot" fired by the petitioner; and, that if this exhibit was properly appreciated by the trial court, petitioner would be acquitted of all the charges. 29

Moreover, petitioner contended that the warning shot proved that that the Ferrer brothers were the unlawful aggressors since there would have been no occasion for the petitioner to fire a warning shot if the Ferrer brothers did not stone him; that the testimony of Michael in the trial court proved that it was the Ferrer brothers who provoked petitioner to shoot them; and that the Ferrer brothers pelted them with stones even after the "warning shot." 30

Petitioner's contention must fail.

Article 11, paragraph (1), of the Revised Penal Code provides for the elements and/or requisites in order that a plea of self-defense may be validly considered in absolving a person from criminal liability, viz:

ART. 11. Justifying circumstances. - The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself. x x x.

As an element of self-defense, unlawful aggression refers to an assault or attack, or a threat thereof in an imminent and immediate manner, which places the defendant's life in actual peril. 31 It is an act positively strong showing the wrongful intent of the aggressor and not merely a threatening or intimidating attitude. 32 It is also described as a sudden and unprovoked attack of immediate and imminent kind to the life, safety or rights of the person attacked. 33

There is an unlawful aggression on the part of the victim when he puts in actual or imminent peril the life, limb, or right of the person invoking self-defense. There must be actual physical force or actual use of weapon. 34 In order to constitute unlawful aggression, the person attacked must be confronted by a real threat on his life and limb; and the peril sought to be avoided is imminent and actual, not merely imaginary. 35

In the case at bar, it is clear that there was no unlawful aggression on the part of the Ferrer brothers that justified the act of petitioner in shooting them. There were no actual or imminent danger to the lives of petitioner and Ferdinand when they proceeded and arrived at the videoke bar and saw thereat the Ferrer brothers. It appears that the Ferrer brothers then were merely standing outside the videoke bar and were not carrying any weapon when the petitioner arrived with his brother Ferdinand and started firing his gun. 36

Assuming, arguendo, that the Ferrer brothers had provoked the petitioner to shoot them by pelting the latter with stones, the shooting of the Ferrer brothers is still unjustified. When the Ferrer brothers started throwing stones, petitioner was not in a state of actual or imminent danger considering the wide distance (4-5 meters) of the latter from the location of the former. 37 Petitioner was not cornered nor trapped in a specific area such that he had no way out, nor was his back against the wall. He was still capable of avoiding the stones by running away or by taking cover. He could have also called or proceeded to the proper authorities for help. Indeed, petitioner had several options in avoiding dangers to his life other than confronting the Ferrer brothers with a gun.

The fact that petitioner sustained injuries in his left leg and left shoulder, allegedly caused by the stones thrown by the Ferrer brothers, does not signify that he was a victim of unlawful aggression or that he acted in self-defense. 38 There is no evidence to show that his wounds were so serious and severe. The superficiality of the injuries sustained by the petitioner is no indication that his life and limb were in actual peril. 39

Petitioner's assertion that, despite the fact that he fired a warning shot, the Ferrer brothers continued to pelt him with stones, 40 will not matter exonerate him from criminal liability. Firing a warning shot was not the last and only option he had in order to avoid the stones thrown by the Ferrer brothers. As stated earlier, he could

have run away, or taken cover, or proceeded to the proper authorities for help. Petitioner, however, opted to shoot the Ferrer brothers.

It is significant to note that the shooting resulted in the death of Melton, and wounding of Servillano and Michael. With regard to Melton, a bullet hit his right thigh, and another bullet hit his head which caused his instant death. 41 As regards Servillano, a bullet penetrated two of his vital organs, namely, the large intestine and urinary bladder. 42 He underwent two (2) surgeries in order to survive and fully recover. 43 Michael, on the other hand, sustained a gunshot wound on the right shoulder. 44 It must also be noted that the Ferrer brothers were shot near the videoke bar, which contradict petitioner's claim he was chased by the Ferrer brothers. Given the foregoing circumstances, it is difficult to believe that the Ferrer brothers were the unlawful aggressors. As correctly observed by the prosecution, if the petitioner shot the Ferrer brothers just to defend himself, it defies reason why he had to shoot the victims at the vital portions of their body, which even led to the death of Melton who was shot at his head. 45 It is an oft-repeated rule that the nature and number of wounds inflicted by the accused are constantly and unremittingly considered important indicia to disprove a plea of self- defense. 46

Let it not be forgotten that unlawful aggression is a primordial element in self-defense. 47 It is an essential and indispensable requisite, for without unlawful aggression on the part of the victim, there can be, in a jural sense, no complete or incomplete self- defense. 48 Without unlawful aggression, self-defense will not have a leg to stand on and this justifying circumstance cannot and will not be appreciated, even if the other elements are present. 49 To our mind, unlawful aggression, as an element of self-defense, is wanting in the instant case.

The second element of self-defense requires that the means employed by the person defending himself must be reasonably necessary to prevent or repel the unlawful aggression of the victim. The reasonableness of the means employed may take into account the weapons, the physical condition of the parties and other circumstances showing that there is a rational equivalence between the means of attack and the defense. 50 In the case at bar, the petitioner's act of shooting the Ferrer brothers was not a reasonable and necessary means of repelling the aggression allegedly initiated by the Ferrer brothers. As aptly stated by the trial court, petitioner's gun was far deadlier compared to the stones thrown by the Ferrer brothers. 51

Moreover, we stated earlier that when the Ferrer brothers allegedly threw stones at the petitioner, the latter had other less harmful options than to shoot the Ferrer brothers. Such act failed to pass the test of reasonableness of the means employed in preventing or repelling an unlawful aggression.

With regard to the second issue, petitioner asserts that the Court of Appeals erred in not acquitting him on the ground of lawful self- defense.

Petitioner's argument is bereft of merit.

In resolving criminal cases where the accused invokes self-defense to escape criminal liability, this Court consistently held that where an accused admits killing the victim but invokes self-defense, it is incumbent upon the accused to prove by clear and convincing evidence that he acted in self-defense. 52 As the burden of evidence is shifted on the accused to prove all the elements of self-defense, he must rely on the strength of his own evidence and not on the weakness of the prosecution. 53

As we have already found, there was no unlawful aggression on the part of the Ferrer brothers which justified the act of petitioner in shooting them. We also ruled that even if the Ferrer brothers provoked the petitioner to shoot them, the latter's use of a gun was not a reasonable means of repelling the act of the Ferrer brothers in throwing stones. It must also be emphasized at this point that both the trial court and the appellate court found that petitioner failed to established by clear and convincing evidence his plea of self- defense. In this regard, it is settled that when the trial court's findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court. 54 In the present case, we find no compelling reason to deviate from their findings. Verily, petitioner failed to prove by clear and convincing evidence that he is entitled to an acquittal on the ground of lawful self- defense.

On another point, while we agree with the trial court and the Court of Appeals that petitioner is guilty of the crime of Homicide for the death of Melton in Criminal Case No. U-9610, and Frustrated Homicide for the serious injuries sustained by Servillano in Criminal Case No. U-9608, we do not, however, concur in their ruling that petitioner is guilty of the crime of Frustrated Homicide as regards to Michael in Criminal Case No. U-9609. We hold that petitioner therein is guilty only of the crime of Attempted Homicide.

Article 6 of the Revised Penal Code states and defines the stages of a felony in the following manner:

ART. 6. Consummated, frustrated, and attempted felonies. - Consummated felonies, as well as those which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for the for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution

which would produce the felony as a consequence but which, nevertheless, do not produce it by reason or causes independent of the will of the perpetrator.

There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance (italics supplied).

Based on the foregoing provision, the distinctions between frustrated and attempted felony are summarized as follows:

1.) In frustrated felony, the offender has performed all the acts of execution which should produce the felony as a consequence; whereas in attempted felony, the offender merely commences the commission of a felony directly by overt acts and does not perform all the acts of execution.

2.) In frustrated felony, the reason for the non-accomplishment of the crime is some cause independent of the will of the perpetrator; on the other hand, in attempted felony, the reason for the non- fulfillment of the crime is a cause or accident other than the offender's own spontaneous desistance.

In addition to these distinctions, we have ruled in several cases that when the accused intended to kill his victim, as manifested by his use of a deadly weapon in his assault, and his victim sustained fatal or mortal wound/s but did not die because of timely medical assistance, the crime committed is frustrated murder or frustrated homicide depending on whether or not any of the qualifying circumstances under Article 249 of the Revised Penal Code are present. 55 However, if the wound/s sustained by the victim in such a case were not fatal or mortal, then the crime committed is only attempted murder or attempted homicide. 56 If there was no intent

to kill on the part of the accused and the wound/s sustained by the victim were not fatal, the crime committed may be serious, less serious or slight physical injury. 57

Based on the medical certificate of Michael, as well as the testimony of the physician who diagnosed and treated Michael, the latter was admitted and treated at the Dagupan Doctors-Villaflor Memorial Hospital for a single gunshot wound in his right shoulder caused by the shooting of petitioner. 58 It was also stated in his medical certificate that he was discharged on the same day he was admitted and that the treatment duration for such wound would be for six to eight days only. 59 Given these set of undisputed facts, it is clear that the gunshot wound sustained by Michael in his right shoulder was not fatal or mortal since the treatment period for his wound was short and he was discharged from the hospital on the same day he was admitted therein. Therefore, petitioner is liable only for the crime of attempted homicide as regards Michael in Criminal Case No. U-9609.

With regard to the appreciation of the aggravating circumstance of use of an unlicensed firearm, we agree with the trial court and the appellate court that the same must be applied against petitioner in the instant case since the same was alleged in the informations filed against him before the RTC and proven during the trial. However, such must be considered as a special aggravating circumstance, and not a generic aggravating circumstance.

Generic aggravating circumstances are those that generally apply to all crimes such as those mentioned in Article 14, paragraphs No. 1, 2, 3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the Revised Penal Code. It has the effect of increasing the penalty for the crime to its maximum period, but it cannot increase the same to the next higher degree. It must always be alleged and charged in the information, and must be proven during the trial in order to be

appreciated. 60 Moreover, it can be offset by an ordinary mitigating circumstance.

On the other hand, special aggravating circumstances are those which arise under special conditions to increase the penalty for the offense to its maximum period, but the same cannot increase the penalty to the next higher degree. Examples are quasi-recidivism under Article 160 and complex crimes under Article 48 of the Revised Penal Code. It does not change the character of the offense charged. 61 It must always be alleged and charged in the information, and must be proven during the trial in order to be appreciated. 62 Moreover, it cannot be offset by an ordinary mitigating circumstance.

It is clear from the foregoing that the meaning and effect of generic and special aggravating circumstances are exactly the same except that in case of generic aggravating, the same CAN be offset by an ordinary mitigating circumstance whereas in the case of special aggravating circumstance, it CANNOT be offset by an ordinary mitigating circumstance.

Aside from the aggravating circumstances abovementioned, there is also an aggravating circumstance provided for under Presidential Decree No. 1866, 63 as amended by Republic Act No. 8294, 64 which is a special law. Its pertinent provision states:

If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.

In interpreting the same provision, the trial court reasoned that such provision is "silent as to whether it is generic or qualifying." 65 Thus, it ruled that "when the law is silent, the same must be interpreted in favor of the accused." 66 Since a generic aggravating circumstance is more favorable to petitioner compared

to a qualifying aggravating circumstance, as the latter changes the nature of the crime and increase the penalty thereof by degrees, the trial court proceeded to declare that the use of an unlicensed firearm by the petitioner is to be considered only as a generic aggravating circumstance. 67 This interpretation is erroneous since we already held in several cases that with the passage of Republic Act. No. 8294 on 6 June 1997, the use of an unlicensed firearm in murder or homicide is now considered as a SPECIAL aggravating circumstance and not a generic aggravating circumstance. 68 Republic Act No. 8294 applies to the instant case since it took effect before the commission of the crimes in 21 April 1998. Therefore, the use of an unlicensed firearm by the petitioner in the instant case should be designated and appreciated as a SPECIAL aggravating circumstance and not merely a generic aggravating circumstance.

As was previously established, a special aggravating circumstance cannot be offset by an ordinary mitigating circumstance. Voluntary surrender of petitioner in this case is merely an ordinary mitigating circumstance. Thus, it cannot offset the special aggravating circumstance of use of unlicensed firearm. In accordance with Article 64, paragraph 3 of the Revised Penal Code, the penalty imposable on petitioner should be in its maximum period. 69

As regards the civil liability of petitioner, we deem it necessary to modify the award of damages given by both courts.

In Criminal Case No. U-9610 for Homicide, we agree with both courts that the proper amount of civil indemnity is P50,000.00, and that the proper amount for moral damages is P50,000.00 pursuant to prevailing jurisprudence. 70 However, based on the receipts for hospital, medicine, funeral and burial expenses on record, and upon computation of the same, the proper amount of actual damages should be P42,374.18, instead of P43,556.00. Actual damages for loss of earning capacity cannot be awarded in this case since there

was no documentary evidence to substantiate the same. 71 Although there may be exceptions to this rule, 72 none is availing in the present case. Nevertheless, since loss was actually established in this case, temperate damages in the amount of P25,000.00 may be awarded to the heirs of Melton Ferrer. Under Article 2224 of the New Civil Code, temperate or moderate damages may be recovered when the court finds that some pecuniary loss was suffered but its amount cannot be proved with certainty. Moreover, exemplary damages should be awarded in this case since the presence of special aggravating circumstance of use of unlicensed firearm was already established. 73 Based on prevailing jurisprudence, the award of exemplary damages for homicide is P25,000.00. 74

In Criminal Cases No. U-9608 and U-9609, we agree with both courts as to the award of actual damages and its corresponding amount since the same is supported by documentary proof therein. The award of moral damages is also consistent with prevailing jurisprudence. However, exemplary damages should be awarded in this case since the presence of special aggravating circumstance of use of unlicensed firearm was already established. Based on prevailing jurisprudence, the award of exemplary damages for both the attempted and frustrated homicide shall be P25,000.00 for each.

WHEREFORE, premises considered, the decision of the Court of Appeals dated 30 September 2004 is hereby AFFIRMED with the following MODIFICATIONS:

(1) In Criminal Case No. U-9609, the petitioner is found guilty of the crime of attempted homicide. The penalty imposable on the petitioner is prision correccional under Article 51 of the Revised Penal Code. 75 There being a special aggravating circumstance of the use of an unlicensed firearm and applying the Indeterminate Sentence of Law, the penalty now becomes four (4) years and two (2) months of arresto mayor as minimum period to six (6) years

of prision correccional as maximum period. As regards the civil liability of petitioner, the latter is hereby ordered to pay Michael Ferrer exemplary damages in the amount of P25,000.00 in addition to the actual damages and moral damages awarded by the Court of Appeals.

(2) In Criminal Case No. U-9608, the penalty imposable on the petitioner for the frustrated homicide is prision mayor under Article 50 of the Revised Penal Code. 76 There being a special aggravating circumstance of the use of an unlicensed firearm and applying the Indeterminate Sentence Law, the penalty now becomes six (6) years of prision correccional as minimum period to twelve (12) years of prision mayor as maximum period. As regards the civil liability of petitioner, the latter is hereby ordered to pay Servillano Ferrer exemplary damages in the amount of P25,000.00 in addition to the actual damages and moral damages awarded by the Court of Appeals.

(3) In Criminal Case No. U-9610, the penalty imposable on petitioner for the homicide is reclusion temporal under Article 249 of the Revised Penal Code. 77 There being a special aggravating circumstance of the use of an unlicensed firearm and applying the Indeterminate Sentence Law, the penalty now is twelve (12) years of prision mayor as minimum period to twenty (20) years of reclusion temporal as maximum period. As regards the civil liability of petitioner, the latter is hereby ordered to pay Melton Ferrer exemplary damages in the amount of P25,000.00 in addition to the actual damages and moral damages awarded by the Court of Appeals. The actual damages likewise awarded by the Court of Appeals is hereby reduced to P42,374.18.

SO ORDERED.

SECOND DIVISION PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, -versus

G.R. No. 199877

Present: CARPIO,J, Chairperson, BRION, VILLARAMA, JR., PEREZ, and * REYES,JJ Promulgated:

(~ ~ ARTURO LARA y ORBISTA, Accused-Appellant. 3 2012

AUG 1

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DECISION REYES, J.: This is an automatic appeal from the Decision 1 dated July 28, 2011 of the Court of Appeals (CA) in CA-G.R. CR HC No. 03685. The CA affirmed the Decision2 dated October 1, 2008 of the Regional Trial Court (RTC), Pasig City, Branch 268, finding Arturo Lara (Lara) guilty beyond reasonable doubt of robbery with homicide. Additional member per Special Order No. 1274 dated July 30, 2012 vice Associate Justice Maria Lourdes P.A. Sereno. 1 Penned by Associate Justice Japar B. Dimaampao, with Presiding Justice Andres B. Reyes, Jr. and Associate Justice Jane Aurora C. Lantion, concurring; rolla, pp. 2-13. • 2 Under the sala of Judge Amelia C. Manalastas; CA rolla, pp. 41-47. Decision 2 G.R. No. 199877 On June 14, 2001, an Information3 charging Lara with robbery with homicide was filed with the RTC: On or about May 31, 2001, in Pasig City, and within the jurisdiction of this Honorable Court, the accused, armed with a gun, conspiring and confederating together with one unidentified person who is still at-large, and both of them mutually helping and aiding one another, with intent to gain, and by means of force, violence and intimidation, did then and there wilfully, unlawfully and feloniously take, steal and divest from Joselito M. Bautista cash money amounting to P230,000.00 more or less and belonging to San Sebastian Allied Services, Inc. represented by Enrique Sumulong; that on the occasion of said robbery, the said accused, with intent to kill, did then and there wilfully, unlawfully and feloniously attack, assault, and shoot said Joselito M. Bautista with the said gun, thereby inflicting upon the latter mortal wounds which directly caused his death. Contrary to law.4 Following Lara’s plea of not guilty, trial ensued. The prosecution presented three (3) witnesses: Enrique Sumulong (Sumulong), SPO1 Bernard Cruz (SPO1 Cruz) and PO3 Efren Calix (PO3 Calix). Sumulong testified that: (a) he was an accounting staff of San Sebastian Allied Services, Inc. (San Sebastian); (b) on May 31, 2001 and at around 9:00 in the morning, he withdrew the amount of P230,000.00 from the Metrobank-Mabini Branch, Pasig City to defray the

salaries of the employees of San Sebastian; (c) in going to the bank, he rode a pick-up and was accompanied by Virgilio Manacob (Manacob), Jeff Atie (Atie) and Joselito Bautista (Bautista); (d) he placed the amount withdrawn in a black bag and immediately left the bank; (e) at around 10:30 in the morning, while they were at the intersection of Mercedes and Market Avenues, Pasig City, Lara suddenly appeared at the front passenger side of the pick-up and pointed a gun at him stating, “Akin na ang pera, iyong bag, nasaan?”; (f) Bautista, who was seated at the back, shouted, “Wag mong ibigay”; (g) heeding Bautista’s advice, he threw the bag in Bautista’s direction; (h) after getting hold of the bag, Bautista alighted from the pick-up and ran; (i) seeing 3 Id. at 23-24. 4 Id. at 23. Decision 3 G.R. No. 199877 Bautista, Lara ran after him while firing his gun; (j) when he had the chance to get out of the pick-up, he ran towards Mercedes Plaza and called up the office of San Sebastian to relay the incident; (k) when he went back to where the pick-up was parked, he went to the rear portion of the vehicle and saw blood on the ground; (l) he was informed by one bystander that Bautista was shot and the bag was taken away from him; (m) when barangay officials and the police arrived, he and his two (2) other companions were brought to the police station for investigation; (n) on June 7, 2001, while on his way to Barangay Maybunga, Pasig City, he saw Lara walking along Dr. Pilapil Street, Barangay San Miguel, Pasig City; (o) he alerted the police and Lara was thereafter arrested; and (p) at the police station, he, Atie and Manacob identified Lara as the one who shot and robbed them of San Sebastian’s money.5 SPO1 Cruz testified that: (a) he was assigned at the Follow-Up Unit of the Pasig City Police Station; (b) at around 7:55 in the evening of June 7, 2001, Sumulong went to the police station and informed him that he saw Lara walking along Dr. Pilapil Street; (c) four (4) police officers and Sumulong went to Dr. Pilapil Street where they saw Lara, who Sumulong identified; (d) they then approached Lara and invited him for questioning; (e) at the police station, Lara was placed in a line-up where he was positively identified by Sumulong, Manacob and Atie; and (f) after being identified, Lara was informed of his rights and subsequently detained.6 PO3 Calix testified that:

(a) he was a member of the Criminal Investigation Unit of the Pasig City Police Station; (b) on May 31, 2001, he was informed of a robbery that took place at the corner of Mercedes and Market Avenues, Pasig City; (c) he, together with three (3) other police officers, proceeded to the crime scene; (d) upon arriving thereat, one of the police officers who were able to respond ahead of them, handed to him eleven (11) pieces of empty shells and six (6) deformed slugs of a 9mm 5 Id. at 42-43. 6 Id. at 43-44. Decision 4 G.R. No. 199877 pistol; (e) as part of his investigation, he interviewed Sumulong, Atie, Manacob at the police station; and (f) before Bautista died, he was able to interview Bautista at the hospital where the latter was brought after the incident.7 In his defense, Lara testified that: (a) he was a plumber who resided at Dr. Pilapil Street, San Miguel, Pasig City; (b) on May 31, 2001, he

was at his house, digging a sewer trench while his brother, Wilfredo, was constructing a comfort room; (c) they were working from 8:00 in the morning until 3:00 in the afternoon; (d) on June 7, 2001 and at around 7:00 in the evening, while he was at the house of one of his cousins, police officers arrived and asked him if he was Arturo Lara; (e) after confirming that he was Arturo Lara, the police officers asked him to go with them to the Barangay Hall; (f) he voluntarily went with them and while inside the patrol car, one of the policemen said, “You are lucky, we were able to caught you in your house, if in another place we will kill you” (sic); (g) he was brought to the police station and not the barangay hall as he was earlier told where he was investigated for robbery with homicide; (h) when he told the police that he was at home when the subject incident took place, the police challenged him to produce witnesses; (i) when his witnesses arrived at the station, one of the police officers told them to come back the following day; (j) while he was at the police line-up holding a name plate, a police officer told Sumulong and Atie, “Ituru nyo na yan at uuwi na tayo”; and (k) when his witnesses arrived the following day, they were told that he will be subjected to an inquest.8 To corroborate his testimony, Lara presented one of his neighbors, Simplicia Delos Reyes. She testified that on May 31, 2001, while she was manning her store, she saw Lara working on a sewer trench from 9:00 in the morning to 5:00 in the afternoon.9 Lara also presented his sister, Edjosa 7 Id. at 44. 8 Id. at 44-45. 9 Id. at 46. Decision 5 G.R. No. 199877 Manalo, who testified that he was working on a sewer line the whole day of May 31, 2001.10 On October 1, 2008, the RTC convicted Lara of robbery with homicide in a Decision,11 the dispositive portion of which states: WHEREFORE, premises considered, this Court finds the accused ARTURO LARA Y Orbista GUILTY beyond reasonable doubt of the crime of Robbery with Homicide, defined and penalized under Article 294 (1) as amended by Republic Act 7659, and is hereby sentenced to suffer the penalty of imprisonment of reclusion perpetua, with all the accessory penalties prescribed by law. Accused is further ordered to indemnify the heirs of the deceased the sum of Php50,000.00 as civil indemnity and Php230,000.00 representing the money carted by the said accused. SO ORDERED.12 The RTC rejected Lara’s defense of alibi as follows:

The prosecution’s witness Enrique Sumulong positively identified accused Arturo Lara as the person who carted away the payroll money of San Sebastian Allied Services, Inc., on May 31, 2001 at around 10:30 o’clock in the morning along the corner of Mercedez and Market Ave., Pasig City and the one who shot Joselito Bautista which caused his instantaneous death on the same day. As repeatedly held by the Supreme Court, “For alibi to prosper, an accused must show he was at some other place for such a period of time that it was impossible for him to have been at the crime scene at the time of the commission of the crime” (People versus Bano, 419 SCRA 697). Considering the proximity of the distance between the place of the incident and the residence of the accused where he allegedly stayed the whole day of May 31,

2001, it is not physically impossible for him to be at the crime scene within the same barangay. The positive identification of the accused which were categorical and consistent and without any showing of ill motive on the part of the eyewitnesses, should prevail over the alibi and denial of the accused whose testimony was not substantiated by clear and convincing evidence (People versus Aves 420 SCRA 259).13 (Emphasis supplied) 10 Id. 11 Id. at 41-47. 12 Id. at 47. 13 Id. at 46. Decision 6 G.R. No. 199877 On appeal, Lara pointed out several errors that supposedly attended his conviction. First, that he was arrested without a warrant under circumstances that do not justify a warrantless arrest rendered void all proceedings including those that led to his conviction. Second, he was not assisted by counsel when the police placed him in a line-up to be identified by the witnesses for the prosecution in violation of Section 12, Article III of the Constitution. The police line-up is part of custodial investigation and his right to counsel had already attached. Third, the prosecution failed to prove his guilt beyond reasonable doubt. Specifically, the prosecution failed to present a witness who actually saw him commit the alleged acts. Sumulong merely presumed that he was the one who shot Bautista and who took the bag of money from him. The physical description of Lara that Sumulong gave to the police was different from the one he gave during the trial, indicating that he did not have a fair glimpse of the perpetrator. Moreover, this gives rise to the possibility that it was his unidentified companion who shot Bautista and took possession of the money. Hence, it cannot be reasonably claimed that his conviction was attended with moral certainty. Fourth, the trial court erred in discounting the testimony of his witnesses. Without any showing that they were impelled by improper motives in testifying in his favor, their testimonies should have been given the credence they deserve. While his two (2) witnesses were his sister and neighbor, this does not by itself suggest the existence of bias or impair their credibility. The CA affirmed Lara’s conviction. That Lara was supposedly arrested without a warrant may not serve as a ground to invalidate the proceedings leading to his conviction considering its belated invocation. Any objections to the legality of the warrantless arrest should have been raised in a motion to quash duly filed before the accused enters his plea; otherwise, it is deemed waived. Further, that the accused was illegally arrested is not a ground to set aside conviction duly arrived at and based on evidence that sufficiently establishes culpability: Decision 7 G.R. No. 199877 Appellant’s avowal could hardly wash. It is a shopworn doctrine that any objection involving a warrant of arrest or the acquisition of jurisdiction over the person of an accused must be made before he enters his plea, otherwise the objection is deemed waived. In voluntarily submitting himself to the court by entering a plea, instead of filing a motion to quash the information for lack of jurisdiction over his person, accused-appellant is deemed to have waived his right to assail the legality of his arrest. Applying the foregoing jurisprudential touchstone, appellant is estopped from questioning the validity of his arrest

since he never raised this issue before arraignment or moved to quash the Information. What is more, the illegal arrest of an accused is not sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after trial free from error. The warrantless arrest, even if illegal, cannot render void all other proceedings including those leading to the conviction of the appellants and his co-accused, nor can the state be deprived of its right to convict the guilty when all the facts on record point to their culpability.14 (Citations omitted) As to whether the identification of Lara during the police line-up is inadmissible as his right to counsel was violated, the CA ruled that there was no legal compulsion to afford him a counsel during a police line-up since the latter is not part of custodial investigation. Appellant’s assertion that he was under custodial investigation at the time he was identified in a police line-up and therefore had the right to counsel does not hold water. Ingrained in our jurisdiction is the rule that an accused is not entitled to the assistance of counsel in a police line-up considering that such is usually not a part of custodial investigation. An exception to this rule is when the accused had been the focus of police attention at the start of the investigation. In the case at bench, appellant was identified in a police line-up by prosecution witnesses from a group of persons gathered for the purpose. However, there was no proof that appellant was interrogated at all or that a statement or confession was extracted from him. A priori, We refuse to hearken to appellant’s hollow cry that he was deprived of his constitutional right to counsel given the hard fact that during the police line-up, the accusatory process had not yet commenced. Assuming ex hypothesi that appellant was subjected to interrogation sans counsel during the police line-up, it does not in any way affect his culpability. Any allegation of violation of rights during custodial investigation is relevant and material only to cases in which an extrajudicial admission or confession extracted from the accused becomes the basis of their conviction. Here, appellant was convicted based on the testimony of a prosecution witness and not on his alleged uncounseled confession or admission.15 (Citations omitted) 14 Rollo, p. 5. 15 Id. at 5-6. Decision 8 G.R. No. 199877 The CA addressed Lara’s claim that the prosecution’s failure to present a witness who actually saw him commit the crime charged as follows: Third. Appellant takes umbrage at the alleged failure of the prosecution to present an eyewitness to prove that he shot the victim and took the money. Such posture is unpersuasive. Contrary to appellant’s assertion, prosecution witness Sumulong actually saw him shoot Bautista, the victim. Sumulong vividly recounted, viz: “Q When you said that “tinutukan ka”, aside from this act was there any other words spoken by this person? A There was, sir. Q What did he say? A “Nasaan ang bag ilabas mo yung pera”, sir. Q Where were you looking when this person approached you? A I was looking at his face, sir. Q And upon hearing those words, what did you do? A I put out the money, sir, because I got afraid at that time. Q Did you hand over the black bag containing the money to him? A No, sir, because one

of my companion(s) shouted not to give the money or the bag so I immediately threw away the bag at the back seat, sir. Q And how long approximately was that person standing by your car window? A Five (5) to ten (10) minutes, sir. Q And after you have thrown the black bag containing money to the back of the vehicle, what did that person do? A I saw Joey alight(ed) from the vehicle carrying the bag and ran away, sir, and I also saw somebody shoot a gun? Q Who was firing the gun? A The one who held-up us, sir. Decision 9 G.R. No. 199877 Q By how, do you know his name? A No, sir. Q But if you can see him again, (were) you be able to recognize him? A Yes, sir. Q If he is in the courtroom, will you be able to recognize him? A Yes, sir. Q Please look around and please tell this Honorable Court whether indeed the person you saw holding you up at that time is in court? A Yes, sir. Q Will you please stand up and tap his shoulder to identify him? Interpreter: The witness tap the shoulder of a person sitting on the first bench of the courtroom wearing yellow t-shirt and black pants who when ask identify himself as Arturo Lara (sic). Q And when as you said Joey got the bag. Alighted from the vehicle and ran away with it, what did the accused do? (sic) A He shot Joey while running around our vehicle, sir. Q Around how many shots according to your recollection were fired? A There were several shots, more or less nine (9) shots, sir. x x x x x x[”] “Q So, you did not personally notice what had transpired or happened after you stepped down from the Nissan pick-up, that is correct? A There was, sir, my companion Joselito Bautista was shot. Q When you heard the gunfire, you were already proceeding towards that store to call your office by phone, that is correct? A Not yet, sir, we were still inside the vehicle. Q And was Joselito Bautista at the rear of the Nissan Sentra when you heard this gunfire? A Yes, sir. Decision 10 G.R. No. 199877 Q And so he was at the back, so the shooter was also at the back of the vehicle, that is correct? A Yes, sir, he went towards the rear portion of the vehicle, he followed Joselito Bautista and shot him. Q So, to be clear, when Joselito Bautista ran to the rear, this alleged holdup(p)er followed him? A Yes, sir. Q And that was the time(,) you heard this gunfire? A Yes, sir. Q So, you did not personally see who fired that firearm? A Because at that time he was the one holding the gun, sir. Q So, you are presuming that he was the one who fired the gun because he was holding the gun, am I correct? A Yes, sir.” x x x x Under Section 4, Rule 133, of the Rules of Court, circumstantial evidence is sufficient for conviction if the following requisites concur: (a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Here, the following circumstantial evidence are tellingly sufficient to prove that the guilt of appellant is beyond reasonable doubt, viz: 1. While the vehicle was at the intersection of Mercedes and Market Avenues, Pasig City, appellant suddenly emerged and pointed a gun at prosecution witness Sumulong, demanding from him to produce the bag containing the money[.] 2. Prosecution witness Sumulong threw the bag to

the victim who was then seated at the backseat of the vehicle. 3. The victim alighted from vehicle carrying the bag. 4. Appellant chased and fired several shots at the victim. 5. The victim sustained several gunshot wounds. 6. The police officers recovered from the scene of the crime six deformed empty shells.16 (Citations omitted and emphasis supplied) 16 Id. at 7-11. Decision 11 G.R. No. 199877 Finally, the CA found that Lara’s alibi failed to convince. Specifically: Deeply embedded in our jurisprudence is the rule that positive identification of the accused, where categorical and consistent, without any showing of ill motive on the part of the eyewitness testifying, should prevail over the alibi and denial of appellants, whose testimonies are not substantiated by clear and convincing evidence. All the more, to establish alibi the accused must prove (a) that he was present at another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime. Physical impossibility “refers to the distance between the place where the accused was when the crime transpired and the place where it was committed, as well as the facility of access between the two places. Appellant miserably failed to prove the physical impossibility of his presence at the locus criminis at the time of the perpetration of the felonious act. He himself admitted that his house was just a stone’s throw (about three minutes away) from the crime scene.17 (Citations omitted) In a Resolution18 dated February 1, 2012, this Court accepted the appeal as the penalty imposed was reclusion perpetua and the parties were afforded an opportunity to file their supplemental briefs. Both parties waived their right to do so, stating that they would adopt the allegations in their respective briefs that they filed with the CA. Issues The present review of Lara’s conviction for robbery with homicide gives rise to the following issues: a. whether the identification made by Sumulong, Atie and Manacob in the police line-up is inadmissible because Lara stood therein without the assistance of counsel; b. whether Lara’s supposedly illegal arrest may be raised for the first time on appeal for the purpose of nullifying his conviction; c. whether there is sufficient evidence to convict Lara; and 17 Id. at 11-12. 18 Id. at 19-20. Decision 12 G.R. No. 199877 d. whether Lara’s alibi can be given credence so as to exonerate him from the crime charged. Our Ruling This Court resolves to deny the appeal. I Jurisdiction over the person of the accused may be acquired through compulsory process such as a warrant of arrest or through his voluntary appearance, such as when he surrenders to the police or to the court.19 Any objection to the arrest or acquisition of jurisdiction over the person of the accused must be made before he enters his plea, otherwise the objection is deemed waived. An accused submits to the jurisdiction of the trial court upon entering a plea and participating actively in the trial and this precludes him invoking any irregularities that may have attended his arrest.20 Furthermore, the illegal arrest of an accused is not a sufficient ground to reverse and set aside a conviction that was arrived upon a complaint duly filed and a trial conducted without error.21 As

Section 9, Rule 117 of the Revised Rules of Criminal Procedure provides: Sec. 9. Failure to move to quash or to allege any ground therefor. — The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any objections except those based on the grounds provided for in paragraphs (a), (b), (g) and (i) of Section 3 of this Rule. 19 Miranda v. Tuliao, 520 Phil. 907, 917 (2006). 20 See People v. Ayangao, 471 Phil. 379, 387-388 (2004). 21 See Rebellion v. People, G.R. No. 175700, July 5, 2010, 623 SCRA 343, 348. Decision 13 G.R. No. 199877 II Contrary to Lara’s claim, that he was not provided with counsel when he was placed in a police line-up did not invalidate the proceedings leading to his conviction. That he stood at the police line-up without the assistance of counsel did not render Sumulong’s identification of Lara inadmissible. The right to counsel is deemed to have arisen at the precise moment custodial investigation begins and being made to stand in a police line-up is not the starting point or a part of custodial investigation. As this Court previously ruled in People v. Amestuzo: 22 The contention is not meritorious. The guarantees of Sec. 12 (1), Art. III of the 1987 Constitution, or the so-called Miranda rights, may be invoked only by a person while he is under custodial investigation. Custodial investigation starts when the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect taken into custody by the police who starts the interrogation and propounds questions to the person to elicit incriminating statements. Police line-up is not part of the custodial investigation; hence, the right to counsel guaranteed by the Constitution cannot yet be invoked at this stage. This was settled in the case of People vs. Lamsing and in the more recent case of People vs. Salvatierra. The right to be assisted by counsel attaches only during custodial investigation and cannot be claimed by the accused during identification in a police line-up because it is not part of the custodial investigation process. This is because during a police line-up, the process has not yet shifted from the investigatory to the accusatory and it is usually the witness or the complainant who is interrogated and who gives a statement in the course of the line-up.23 (Citations omitted) III It is apparent from the assailed decision of the CA that the finding of guilt against Lara is based on circumstantial evidence. The CA allegedly erred in this wise considering that only direct and not circumstantial evidence can overcome the presumption of innocence. 22 413 Phil. 500 (2001). 23 Id. at 508-509. Decision 14 G.R. No. 199877 However, well-settled is the rule that direct evidence of the commission of the crime is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt. Even in the absence of direct evidence, conviction can be had if the established circumstances constitute an unbroken chain, consistent with each other and to the hypothesis that the accused is guilty, to the exclusion of all other hypothesis that he is not.24 Under Section 4, Rule 133 of the Revised

Rules on Criminal Procedure, circumstantial evidence sufficed to convict upon the concurrence of the following requisites: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. It is not only by direct evidence that an accused may be convicted of the crime for which he is charged. Resort to circumstantial evidence is essential since to insist on direct testimony would, in many cases, result in setting felons free and denying proper protection to the community.25 As the CA correctly ruled, the following circumstances established by the evidence for the prosecution strongly indicate Lara’s guilt:

(a) while the vehicle Sumulong, Atie, Manacob and Bautista were riding was at the intersection of Mercedes and Market Avenues, he appeared at the front passenger side thereof armed with a gun; (b) while pointing the gun at Sumulong who was at the front passenger seat, Lara demanded that Sumulong give him the bag containing the money; (c) instead of giving the bag to Lara, Sumulong gave it to Bautista who was seated at the back of the pick-up; (d) when Bautista got hold of the bag, he alighted and ran towards the back of the pick-up; (e) Lara ran after Bautista and while doing so, fired his gun at Bautista’s direction; (f) Bautista sustained several gunshot 24 People v. Pascual, Jr., 432 Phil. 224, 231 (2002). 25 People v. dela Cruz, 397 Phil. 401, 420 (2000), citing People v. Geron, 346 Phil. 14, 24 (1997). Decision 15 G.R. No. 199877 wounds; and (g) Bautista’s blood was on the crime scene and empty shells were recovered therefrom. Indeed, in cases of robbery with homicide, the taking of personal property with intent to gain must itself be established beyond reasonable doubt. Conclusive evidence proving the physical act of asportation by the accused must be presented by the prosecution. It must be shown that the original criminal design of the culprit was robbery and the homicide was perpetrated with a view to the consummation of the robbery by reason or on the occasion of the robbery.26 The mere presence of the accused at the crime scene is not enough to implicate him. It is essential to prove the intent to rob and the use of violence was necessary to realize such intent. In this case, Lara’s intent to gain is proven by Sumulong’s positive narration that it was Lara who pointed the gun at him and demanded that the bag containing the money be turned over to him. That Lara resorted to violence in order to actualize his intent to gain is proven by Sumulong’s testimony that he saw Lara fire the gun at the direction of Bautista, who was running away from the pick-up in order to prevent Lara from taking possession of the money. Notably, the incident took place in broad daylight and in the middle of a street. Thus, where considerations of visibility are favorable and the witness does not appear to be biased against the accused, his or her assertions as to the identity of the malefactor should be normally accepted.27 Lara did not allege, much less, convincingly demonstrate that Sumulong was impelled by improper or malicious motives to impute upon him, however perjurious, such a serious

charge. Thus, his testimony, which the trial court found to be forthright and credible, is worthy of full faith and credit and should not be disturbed. If an accused had nothing to do with the crime, it is against the natural order of events and of human nature and against the 26 People v. Geron, 346 Phil. 14, 26 (1997). 27 People v. Santito, Jr., 278 Phil. 100, 113 (1991). Decision 16 G.R. No. 199877 presumption of good faith that a prosecution witness would falsely testify against the former.28 IV In view of Sumulong’s positive identification of Lara, the CA was correct in denying Lara’s alibi outright. It is well-settled that positive identification prevails over alibi, which is inherently a weak defense. Such is the rule, for as a defense, alibi is easy to concoct, and difficult to disapprove.29 Moreover, in order for the defense of alibi to prosper, it is not enough to prove that the accused was somewhere else when the offense was committed, but it must likewise be demonstrated that he was so far away that it was not possible for him to have been physically present at the place of the crime or its immediate vicinity at the time of its commission. Due to its doubtful nature, alibi must be supported by clear and convincing proof. In this case, the proximity of Lara’s house at the scene of the crime wholly negates his alibi. Assuming as true Lara’s claim and that of his witnesses that he was digging a sewer trench on the day of the incident, it is possible that his witnesses may not have noticed him leaving and returning given that the distance between his house and the place where the subject incident took place can be negotiated, even by walking, in just a matter of minutes. Simply put, Lara and his witnesses failed to prove that it is wellnigh impossible for him to be at the scene of the crime. In fine, the assailed decision of the CA is affirmed in all respects. 28 People v. Jumamoy, G.R. No. 101584, April 7, 1993, 221 SCRA 333, 344. 29 People v. Aminola, G.R. No. 178062, September 8, 2010, 630 SCRA 384, 394-395. Decision 17 G.R. No. 199877 WHEREFORE, premises considered, the Decision dated July 28, 2011 of the Court of Appeals in CA-G.R. CR HC No. 03685 is hereby AFFIRMED. SO ORDERED. WE CONCUR: Associate Justice ANTONIO T. CA Senior Associate Justice Chairperson, Second Division Q/WlO{J~ ARTURO D. BRION Associate Justice CERTIFICATION I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. 4-------,./ ANTONIO T. CARPIO Senior Associate Justice (Per Section 12, R.A. 296 The Judiciary Act of 1948, as amended)

Republic of the Philippines

G.R. No. 156320

SUPREME COURT

Manila

THIRD DIVISION

February 14, 2007

RODOLFO ABENES y GACUTAN, Petitioner, vs. HE HON. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

For review before the Court is the Decision 1 dated November 29, 2002 of the Court of Appeals (CA) which affirmed the Joint Decision of the Regional Trial Court (RTC) of Pagadian City, Branch 19, dated June 5, 2000, finding Rodolfo Abenes y Gacutan (petitioner) guilty beyond reasonable doubt of Illegal Possession of High Powered Firearm and Ammunition under Presidential Decree No. 1866 (P.D. No. 1866) in Criminal Case No. 4559-98, and of violating Section 261(q) of Batas Pambansa

Blg. 881 (B.P. Blg. 881), otherwise known as the Omnibus Election Code, vis-à-vis COMELEC Resolution No. 2958 (Gun Ban) in Criminal Case No. 4563-98.

Petitioner was charged under the following Informations:

In Criminal Case No. 4559-98 —

The undersigned Assistant City Prosecutor hereby accuses RODOLFO ABENES Y GACUTAN of the offense of ILLEGAL POSSESSION OF HIGH POWERED FIREARM & ITS AMMUNITIONS (Violation of P.D. No. 1866, as amended by R.A. No. 8294), committed as follows:

On May 8, 1998, at about 10:30 a.m., in Danlugan, Pagadian City, Philippines, within the jurisdiction of this Honorable Court, said RODOLFO ABENES Y GACUTAN did, then and there, willfully, unlawfully, and without any prior authority, license or permit to possess or carry the firearm hereunder described, have in his possession and control the following firearm classified as high powered, with its corresponding ammunitions and accessory, viz:

  • - one (1) cal. 45 pistol (NORINCO) bearing SN 906347;

  • - one (1) magazine for pistol cal. 45

  • - seven (7) rounds live ammunitions for cal. 45,

in gross violation of P.D. No. 1866 as amended by R.A. No. 8294.

CONTRARY TO LAW. 2

In Criminal Case No. 4563-98 —

The undersigned Assistant City Prosecutor hereby accuses RODOLFO ABENES Y GACUTAN of Election Offense in violation of Sec. 261 (9) 3 , BP 881 (OMNIBUS ELECTION CODE), vis-à-vis COMELEC RESOLUTION # 1958 (GUN BAN), committed as follows:

On May 8, 1998, at about 10:30 a.m. within the Election period which is from January 11, 1998 to June 30, 1998, in Danlugan, Pagadian City, Philippines, within the jurisdiction of this Honorable Court, said RODOLFO ABENES Y GACUTAN did, then and there, willfully, and unlawfully, carry in

his person a

cal.

.45 (NORINCO) pistol, bearing serial number 906347, and loaded with seven (7)

rounds of live ammunitions, without any prior authority from the COMELEC in gross violation of Sec.

261 (9) of BP 881 (OMNIBUS ELECTION CODE) in relation to COMELEC RESOLUTION No. 2958 (GUN BAN).

CONTRARY TO LAW. 4

Upon arraignment, the petitioner pleaded not guilty. Trial ensued.

The facts, as found by the RTC and summarized by the CA, are as follows:

The prosecution showed that three days prior to the May 11, 1998 national and local elections, the Philippine National Police (PNP) of Pagadian City, through its Company Commander Major Pedronisto Quano, created a team composed of seven policemen with a directive to establish and man a checkpoint in Barangay Danlugan at said city, for the purpose of enforcing the Gun Ban which was then being implemented by the COMELEC. SPO3 Cipriano Q. Pascua was the designated team leader.

The team proceeded to Barangay Danlugan, arriving thereat at 8:15 in the morning of May 8, 1998. Team leader SPO3 Pascua coordinated with the Barangay Chairman of Danlugan, and the team put up a road block with the marking "COMELEC GUN BAN". Vehicles passing through the road block were required by the team to stop and their occupants were then politely requested to alight in order to allow routine inspection and checking of their vehicles. Motorists who refused the request were not forced to do so.

At about 10:30 in the morning of the same day, a red Tamaraw FX trying to pass through the check point was stopped by the team and directed to park at the side of the road. As the occupants within the vehicle could not be seen through its tinted windows, SPO1 Eliezer Requejo, a member of the team, knocked on the vehicle’s window and requested the occupants to step down for a routine inspection. The eight occupants, which included the accused-appellant Rodolfo Abenes who is the Barangay Chairman of Tawagan Norte, Labangan, Zamboanga Del Sur, alighted from the vehicle. At this juncture, SPO1 Requejo and SPO3 Pascua noticed that a holstered firearm was tucked at the right waist of Abenes. The firearm was readily visible to the policemen; it was not covered by the shirt worn by Abenes. Abenes was then asked by SPO3 Pascua whether he had a license and authority to carry the firearm, and whether his possession was exempted from the Gun Ban being enforced by the COMELEC. Accused answered in the affirmative. The policemen then demanded for the pertinent documents to be shown to support Abenes’ claim. He could not show any. Hence, SPO1 Requejo confiscated Abenes’ firearm, which was later identified as a Norinco .45 caliber pistol bearing Serial No. 906347, including its magazine containing seven live ammunitions.

Subsequently SPO3 Pascua, using his privately owned jeep, brought Abenes to the PNP Headquarters at Camp Abelon in Pagadian City. Upon reaching the Headquarters, SPO3 Pascua indorsed Abenes to Major Quano who in turn referred Abenes to a certain SPO2 Benvienido Albon for further investigation (TSN, August 24, 1998 [SPO3 Cipriano Q. Pascua] pp. 5-27, [SPO1 Eliezer Requejo] pp. 29-50).

A certification dated May 18, 1998 from the Firearms and Explosives License Processing Section of the PNP, Pagadian City disclosed that Abenes is not a registered nor a licensed firearm holder (Record of Criminal Case No. 4559-98, p. 56).

After the prosecution presented its evidence, [the] accused filed a Demurrer to Evidence with Motion to Dismiss (supra, pp. 72-79), which was denied by the trial court in a Resolution dated March 5, 1999 (supra, pp. 80-82).

In his defense, accused-appellant tried to establish that the firearm did not belong to and was not recovered from him; that the firearm was recovered by the policemen from the floor of the vehicle inside a clutch bag which was allegedly left by an unidentified person who hitched a ride somewhere

along the national highway of Tawagan Norte Zamboanga Del Sur and alighted near the Mabuhay Bazaar in Pagadian City (TSN, July 12, 1999 [Noel Rivera], pp. 7-13; September 15, 1999 [Rodolfo Abenes], pp. 11-15; September 27, 1999 [Manuel Sabado Gengania], pp. 9-16). 5

On June 5, 2000, the RTC rendered its Joint Decision convicting the petitioner on both charges, the dispositive portion of which states:

WHEREFORE, in view of all the foregoing discussion, this Court hereby finds accused Rodolfo Abenes y Gacutan GUILTY beyond reasonable doubt for Violation of P.D. No. 1866, as amended by Republic Act No. 8294, having been found in possession without license/permit of a Norinco .45 caliber pistol bearing Serial No. 906347 and 7 rounds of ammunitions and sentences him to imprisonment ranging from TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of PRISION CORRECCIONAL in its MEDIUM PERIOD, as MINIMUM, to EIGHT (8) YEARS of PRISION MAYOR in its MINIMUM, as MAXIMUM and a FINE of THIRTY THOUSAND PESOS (P30,000.00), Philippine currency. Insofar as Criminal Case No. 4559-98 is concerned. The .45 Caliber Pistol aforementioned and the seven (7) rounds of ammunitions are hereby forfeited in favor of the government the same being effects of the Violation of P.D. 1866, amended.

As regards Criminal Case No. 4563-98, this Court also finds herein accused Rodolfo Abenes y Gacutan GUILTY of Violation of Section 264, in relation to Section 261, paragraphs (p) and (q) of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code and sentences him to imprisonment for a period of ONE (1) YEAR, and in addition thereto, herein accused is disqualified to hold any public office and deprived [of] the right of suffrage. It shall be understood that the sentence herein imposed shall be served simultaneously with the sentence imposed in Criminal Case No.

4559-98.

SO ORDERED. 6

The RTC found that, as between the positive and categorical assertions of facts by the two policemen – the witnesses for the prosecution – and the mere denial of the accused and his witnesses, the former must prevail over the latter; that the prosecution successfully proved that the petitioner had no license or permit to carry the firearm through the officer-in-charge of the firearms and explosives office who testified that, based on his records, the petitioner had not been issued a license, and whose testimony had not been impugned by the defense; and that the testimonies of the accused and his two witnesses to the effect that while aboard their private vehicle and on their way to attend an election campaign meeting, they simply stopped and allowed a complete stranger to hitch a ride who was carrying a clutch bag, left the same in the vehicle when he alighted, and which later turned out to contain the subject firearm, were flimsy and unbelievable. The RTC ruled that the defense of alibi or denial cannot prevail over the positive identification by eyewitnesses who have no improper motive to falsely testify against the petitioner, especially where the policemen and the petitioner do not know each other; and, that the petitioner failed to show any license or any other document to justify his lawful possession of the firearm.

The petitioner appealed to the CA claiming that the checkpoint was not shown to have been legally set up, and/or that the frisking of the petitioner who was ordered to alight from the Tamaraw FX, along with his companions in the vehicle, violated his constitutional right against unlawful search and

seizure; and, that the trial court erred in believing the version of the incident as testified to by the policemen instead of the version presented by the defense’s witness which is more consistent with truth and human experience. 7

On November 29, 2002, the CA rendered its Decision, the dispositive portion of which reads:

WHEREFORE, premises considered, the Joint Decision appealed from is AFFIRMED with the MODIFICATION that with respect to Criminal Case No. 4559-98, accused-appellant is sentenced to an indeterminate penalty of 4 years, 2 months and 1 day of prision correccional as minimum to 7 years and 4 months of prision mayor as maximum.

SO ORDERED. 8

With respect to the validity of the checkpoint, the CA found that not only do the police officers have in their favor the presumption that official duties have been regularly performed, but also that the proximity of the day the checkpoint had been set up, to the day of the May 11, 1998 elections, specifically for the purpose of enforcing the COMELEC gun ban, gives a strong badge of the legitimacy of the checkpoint; that after a review of the records, the evidence adduced by the prosecution prevails over the self-serving and uncorroborated claim of the petitioner that he had been "framed"; and, that with respect to the admissibility of the firearm as evidence, the prosecution witnesses convincingly established that the .45 caliber pistol, tucked into the right waist of the petitioner when he alighted from the vehicle, was readily visible, and, therefore, could be seized without a search warrant under the "plain view" doctrine.

The petitioner is now before this Court, raising the following issues:

I.

Given the circumstances, and the evidence adduced, was the check-point validly established?

II.

Given the circumstances, and the evidence adduced, was the petitioner’s constitutional right against unlawful search and seizure violated?

III.

Given the circumstances, and the evidence adduced, did not the honorable court of appeals commit a grave abuse of discretion for adopting the trial court’s unsubstantiated findings of fact?

IV.

Given the circumstances, and the evidence adduced, is not the petitioner entitled to an acquittal, if not on the ground that the prosecution failed to prove guilt beyond reasonable

doubt, on the ground of reasonable doubt itself

. . . floor of the vehicle or from the waist of petitioner? 9

as to where the gun was taken: from the

The appeal is partly meritorious. The Court reverses the CA’s finding of his conviction in Criminal Case No. 4559-98.

After a thorough review of the records, this Court is of the view that the courts a quo – except for a notable exception with respect to the negative allegation in the Information – are correct in their findings of fact. Indeed, the version of the defense, as found by the lower courts, is implausible and belies the common experience of mankind. Evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. 10 In addition, the question of credibility of witnesses is primarily for the trial court to determine. 11 For this reason, its observations and conclusions are accorded great respect on appeal. 12

The trial court's assessment of the credibility of a witness is entitled to great weight. It is conclusive and binding unless shown to be tainted with arbitrariness or unless, through oversight, some fact or circumstance of weight and influence has not been considered. 13 Absent any showing that the trial judge overlooked, misunderstood, or misapplied some facts or circumstances of weight which would affect the result of the case, or that the judge acted arbitrarily, his assessment of the credibility of witnesses deserves high respect by appellate courts. 14 Thus, the Court finds no cogent reason to disturb the findings of the lower courts that the police found in plain view a gun tucked into the waist of the petitioner during the Gun Ban period enforced by the COMELEC.

So too must this Court uphold the validity of the checkpoint. The petitioner insists that the prosecution should have produced the mission order constituting the checkpoint, and invokes Aniag, Jr. v. Comelec, 15 where the Court purportedly held that firearms seized from a motor vehicle without a warrant are inadmissible because there was no indication that would trigger any suspicion from the policemen nor any other circumstance showing probable cause.

On both points the petitioner is wrong. In the present case, the production of the mission order is not necessary in view of the fact that the checkpoint was established three days before the May 11, 1998 elections; and, the circumstances under which the policemen found the gun warranted its seizure without a warrant.

In People v. Escaño, 16 the Court, through the ponencia of Chief Justice Hilario G. Davide, Jr., held:

Accused-appellants assail the manner by which the checkpoint in question was conducted. They contend that the checkpoint manned by elements of the Makati Police should have been announced. They also complain of its having been conducted in an arbitrary and discriminatory manner.

We take judicial notice of the existence of the COMELEC resolution imposing a gun ban during the election period issued pursuant to Section 52(c) in relation to Section 26(q) of the Omnibus Election Code (Batas Pambansa Blg. 881). The national and local elections in 1995 were held on 8 May, the second Monday of the month. The incident, which happened on 5 April 1995, was well within the election period.

This Court has ruled that not all checkpoints are illegal. Those which are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists are allowed. For, admittedly, routine checkpoints do intrude, to a certain extent, on motorists’ right to "free passage without interruption," but it cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicle’s occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual’s right against unreasonable search. In fact, these routine checks, when conducted in a fixed area, are even less intrusive.

The checkpoint herein conducted was in pursuance of the gun ban enforced by the COMELEC. The COMELEC would be hard put to implement the ban if its deputized agents were limited to a visual search of pedestrians. It would also defeat the purpose for which such ban was instituted. Those who intend to bring a gun during said period would know that they only need a car to be able to easily perpetrate their malicious designs.

The facts adduced do not constitute a ground for a violation of the constitutional rights of the accused against illegal search and seizure. PO3 Suba admitted that they were merely stopping cars they deemed suspicious, such as those whose windows are heavily tinted just to see if the passengers thereof were carrying guns. At best they would merely direct their flashlights inside the cars they would stop, without opening the car’s doors or subjecting its passengers to a body search. There is nothing discriminatory in this as this is what the situation demands. 17 (Emphasis supplied)

Thus, the Court agrees with the Solicitor General that petitioner’s reliance on Aniag is misplaced.

In Aniag, the police officers manning the checkpoint near the Batasang Pambansa complex stopped the vehicle driven by the driver of Congressman Aniag. After stopping the vehicle, the police opened a package inside the car which contained a firearm purportedly belonging to Congressman Aniag. In declaring the search illegal, the Supreme Court stated that the law enforcers who conducted the search had no probable cause to check the content of the package because the driver did not behave suspiciously nor was there any previous information that a vehicle hiding a firearm would pass by the checkpoint.

In the instant case, the firearm was seized from the petitioner when in plain view, the policemen saw it tucked into his waist uncovered by his shirt.

Under the plain view doctrine, objects falling in the "plain view" of an officer who has a right to be in the position to have that view are subject to seizure and may be presented as evidence. 18 The "plain view" doctrine applies when the following requisites concur: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (b) the discovery of the evidence in plain view is inadvertent; and (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. 19

All the foregoing requirements are present in the instant case. The law enforcement officers lawfully made an initial intrusion because of the enforcement of the Gun Ban and were properly in a position

from which they particularly viewed the area. In the course of such lawful intrusion, the policemen came inadvertently across a piece of evidence incriminating the petitioner where they saw the gun tucked into his waist. The gun was in plain view and discovered inadvertently when the petitioner alighted from the vehicle.

As accurately found by the CA:

xxx It must be emphasized that the policemen discovered the firearm [on] the person of the [petitioner] shortly after he alighted from the vehicle and before he was frisked. SPO3 Pascua’s testimony[,] corroborated by that of SPO1 Requejo[,] convincingly established that the holstered .45 caliber pistol tucked at the right waist of the [petitioner] was readily visible to the policemen (TSN, August 24, 1998, pp. 18, 37). Thus, notwithstanding the absence of a Search Warrant, the policemen may validly seize the firearm and the same is admissible in evidence against the [petitioner] pursuant to the "plain view doctrine" xxx. 20

Nor can the Court believe petitioner’s claim that he could not have freely refused the "police orders" issued by the police team who were "armed to the teeth" and "in the face of such show of force." The courts a quo consistently found that the police team manning the checkpoint politely requested the passengers to alight from their vehicles, and the motorists who refused this request were not forced to do so. These findings of fact are fully supported by the evidence in the record.

However, the Court must underscore that the prosecution failed to satisfactorily prove the negative allegation in the Information that the petitioner possessed no license or permit to bear the subject firearm.

It is a well-entrenched rule "that in crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz: the existence of the subject firearm, and the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to possess the same." 21

Undoubtedly, it is the constitutional presumption of innocence that lays such burden upon the prosecution. The absence of such license and legal authority constitutes an essential ingredient of the offense of illegal possession of firearm, and every ingredient or essential element of an offense must be shown by the prosecution by proof beyond reasonable doubt. 22

Witness for the prosecution SPO4 Gilbert C. Senados admitted that his records were outdated, i.e., that his Master List of holders of firearms only covered licenses up to 1994; that it was possible for the petitioner to acquire a license after 1994; and that he issued the Certification, dated May 18, 1998, stating that the petitioner carried no license or permit to possess the guns because he was ordered to do so by his superiors. 23

There is no evidence that between 1994 and May 8, 1998, the date the crime was allegedly committed, no license was issued to petitioner.

While the prosecution was able to establish the fact that the subject firearm was seized by the police from the possession of the petitioner, without the latter being able to present any license or permit to

possess the same, such fact alone is not conclusive proof that he was not lawfully authorized to carry such firearm. In other words, such fact does not relieve the prosecution from its duty to establish the lack of a license or permit to carry the firearm by clear and convincing evidence, like a certification from the government agency concerned. 24

Thus, for failure of the prosecution to prove beyond reasonable doubt that petitioner was carrying a firearm without prior authority, license or permit, the latter must be exculpated from criminal liability under P.D. No. 1866, as amended.

With respect to the charge of violating Section 261(q) of B.P. Blg. 881, as amended, otherwise known as the Omnibus Election Code, the Court is constrained to affirm the conviction of the petitioner, since the prosecution successfully discharged its burden of proof.

Section 261 of B.P. Blg. 881 (Omnibus Election Code), as originally worded, provides:

Sec. 261. Prohibited Acts. – The following shall be guilty of an election offense:

(q) Carrying firearms outside residence or place of business. – Any person who, although possessing a permit to carry firearms, carries any firearms outside his residence or place of business during the election period, unless authorized in writing by the Commission: Provided, That a motor vehicle, water or air craft shall not be considered a residence or place of business or extension hereof.

x x x x (Emphasis supplied)

Section 32 of Republic Act No. 7166 (R.A. No. 7166), amending Section 261 of the Omnibus Election Code, provides:

SEC. 32. Who May Bear Firearms. – During the election period, no person shall bear, carry or transport firearms or other deadly weapons in public places, including any building, street, park, private vehicle or public conveyance, even if licensed to possess or carry the same, unless authorized in writing by the Commission. The issuance of firearm licenses shall be suspended during the election period. (Emphasis supplied)

In view of the foregoing provisions, while it is well-settled that under P.D. No. 1866, as amended, the burden to prove the negative allegation that the accused has no license or permit to carry a firearm lies with the prosecution; under the Omnibus Election Code, however, the burden to adduce evidence that accused is exempt from the COMELEC Gun Ban, lies with the accused.

Section 32 of R.A. No. 7166 is clear and unequivocal 25 that the prohibited act to which this provision refers is made up of the following elements: 1) the person is bearing, carrying, or transporting firearms or other deadly weapons; 2) such possession occurs during the election period; and, 3) the weapon is carried in a public place. Under said provision, it is explicit that even if the accused can prove that he is holding a valid license to possess such firearm, this circumstance by itself cannot exculpate him from criminal liability. The burden is on the accused to show that he has a written authority to possess such firearm issued by no less than the COMELEC.

On this point, the petitioner failed to present any form of such authority, and, therefore, his conviction must be affirmed.

Section 264 of the Omnibus Election Code provides:

Sec. 264. Penalties. – Any person found guilty of any election offense under this Code shall be punished with imprisonment of not less than one year but not more than six years and shall not be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. If he is a foreigner, he shall be sentenced to deportation which shall be enforced after the prison term has been served.

The CA affirmed the penalty imposed by the RTC. However, the RTC failed to apply Section 1 of the Indeterminate Sentence Law 26 which provides:

SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same.

Thus, the penalty that should be meted out to petitioner should have a minimum and a maximum period. The Court deems it reasonable that petitioner should suffer imprisonment for a period of one (1) year as the minimum and two (2) years, as the maximum.

Furthermore, under Section 34 of R.A. No. 7166, the subject firearm shall be disposed of according to existing laws, which, in this case, must be read in light of Article 45 of the Revised Penal Code, to wit:

Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime.— Every penalty imposed for the commission of a felony shall carry with it the forefeiture of the proceeds of the crime and the instruments or tools with which it was committed.

Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the Government, unless they be the property of a third person not liable for the offense, but those articles which are not subject of lawful commerce shall be destroyed. 1awphi1.net

WHEREFORE, the petition is partly GRANTED. The Decision dated November 29, 2002 of the Court of Appeals is REVERSED and SET ASIDE insofar as Criminal Case No. 4559-98 is concerned. Petitioner Rodolfo Abenes Y Gacutan is ACQUITTED from the charge of illegal possession of firearm under P.D. No. 1866, as amended, for failure of the prosecution to prove his guilt beyond unreasonable doubt.

With respect to Criminal Case No. 4563-98, the assailed Decision of the Court of Appeals is AFFIRMED with MODIFICATIONS that petitioner is sentenced to an indeterminate sentence of one year of imprisonment as minimum to two years of imprisonment as maximum, not subject to probation; and he shall suffer DISQUALIFICATION to hold public office and DEPRIVATION of the right of suffrage. The subject firearm is CONFISCATED and FORFEITED in favor of the Government.

SO ORDERED.

SECOND DIVISION [G.R. NO. 150251 : November 23, 2007] CAYETANO CAPANGPANGAN, Petitioner, v. PEOPLE OF THE PHILIPPINES,Respondent. D E C I S I O N

The Case

VELASCO, JR., J.:

Before us is a Petition for Review on Certiorari 1 under Rule 45 assailing the July 12, 2001 Decision 2 of the Court of Appeals (CA) in CA-G.R. CR No. 23655, which affirmed the conviction of petitioner Capangpangan in Criminal Case No. 03-6752 for illegal possession of firearms, ammunitions and explosives under Presidential Decree

No. (PD) 1866, 3 as amended. Also assailed is the September 13, 2001 Resolution 4 of the CA denying petitioner's motion for reconsideration.

Petitioner was charged with Violation of PD 1866. The case was docketed as Criminal Case No. 03-6752 in the Iligan City RTC. The Information reads as follows:

That on or about the 1st day of July, 1997, at Tagoloan, Lanao del Norte, 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 have in his possession and control the following items, to wit:

  • 1. Five (5) pcs. Handgrenades (live);

  • 2. Eight (8) pcs. garand clips;

  • 3. Sixteen (16) pcs. garand clips without ammo;

  • 4. Twenty-two (22) pcs. of

cal.

.45 ammo;

  • 5. Forty (40) pcs. M16 Armalite ammo;

  • 6. Five (5) pcs. Carbine ammo;

  • 7. Three (3) pcs. M16 magazine (empty);

  • 8. One (1) piece garand trigger housing group;

  • 9. One (1) piece shotgun rifle with SN-126184;

    • 10. Two (2) pcs.

ARMSCOR;

cal.

.22 rifles with SN-2224758 and 126404,

  • 12. One (1) piece

.22 rifle SN (defaced single shot M16 home-

made); and

  • 13. One (1) piece

.22 magnum S&W, SN-175448,

without having first obtained the necessary [licenses] and/or permits to possess the same from the proper authorities. 5

Petitioner pleaded not guilty.

Evidence for the Prosecution

Armed with a valid warrant to search the house of petitioner Cayetano "Tano" Capangpangan, National Bureau of Investigation (NBI) agents with soldiers from the 30th Infantry Brigade and barangay officials searched petitioner's house in Patag, Tagoloan, Lanao del Sur. Upon opening a portion of the ceiling, they saw, photographed, and opened an ammunition box. They found various ammunitions, ammunition magazines, hand grenades, and assorted firearms. They made an inventory and had NBI agent Nolan Gadia and barangay kagawads Esterlita Laurente and Renato Abellar sign it. The inventory was prepared in the presence of petitioner and his wife, Eldrid Nacua, the barangay kagawads, and the members of the 30th Infantry Brigade. Petitioner admitted he did not have firearms licenses to possess the seized firearms.

Evidence for the Defense

Petitioner interposed that the search was illegal since firearms, ammunitions, and grenades were found in an abandoned hut, while the warrant was for the search of his house.

Sgt. Roberto Legaspi, a member of the Infantry Brigade, testified that on the way to Patag, Tagoloan with other members of his company, they met petitioner and 10 others surveying their land. They saw a hut along their path and decided to rest. Upon entering

the hut, they were surprised to find firearms, ammunitions, and grenades. They seized the cache. Along the way, they were joined by Rolando Guevara. Before reaching Patag, they met three or four NBI agents who immediately handcuffed petitioner and Guevara. Subsequently, they gave the contraband to the NBI agents without demanding a receipt. Upon arriving at their headquarters, they did not bother to report the incident to their company commander, Lt. Yecla.

Cpl. Romeo Sagarino corroborated Sgt. Legaspi's testimony.

For his part, petitioner stated that around 1 p.m. on July 1, 1997, he was in his land at Sitio Paliamon, Tagoloan, while his brothers Popoy and Erlito Fernandez were plowing the land. He said the soldiers found the cache in an uninhabited hut. When they passed by his house, Guevarra and he were handcuffed, and he saw several men, some wearing bonnets. He claimed there were no barangay officials in his house when he was made to sign a receipt.

Rodolfo Fernandez and Guevarra substantially corroborated petitioner's story on the incident that took place in the early afternoon of July 1, 1997.

The Ruling of the Regional Trial Court

On August 5, 1999, the trial court rendered a Decision convicting petitioner of the crime charged. The dispositive portion reads:

WHEREFORE, premises all considered, judgment is hereby rendered finding the accused Cayetano "Tano" Capangpangan guilty of the offense charged, beyond reasonable doubt. Accordingly, he is hereby sentenced to suffer an Indeterminate penalty of four (4) years, two (2) months and one (1) day to eight (8) years. Consequently, the bail bond posted by the accused is cancelled and the accused is ordered incarcerated immediately.

Finally, the firearms are ordered confiscated in favor of the government.

SO ORDERED. 6

In its decision, the trial court gave credence to witnesses of the prosecution and noted that the presumption of regularity in the performance of official duty by the soldiers-witnesses had not been successfully overturned in the absence of showing of any ill-motive on the part of the NBI agents.

The RTC found incredulous the defense that the seized items were just left by some strangers in an uninhabited hut. It found highly unusual petitioner's version that the soldiers who allegedly found the arms would simply turn these over to NBI agents without asking for a receipt nor their names. The trial court likewise found it strange that the soldiers did not report back to their commanding officer. Lastly, it observed glaring inconsistencies in the testimonies of the defense on the time petitioner was found by the soldiers.

The Ruling of the Court of Appeals

Petitioner appealed to the CA.

Before the CA was the sole issue of credibility of witnesses. In affirming the trial court's findings, the CA ruled that petitioner has not given cogent and weighty reasons for the appellate court to abandon the findings of the trial court. According to the CA, it was bound by the findings of the trial court unless it was shown that the RTC overlooked, misunderstood, or misappreciated certain facts and circumstances which if considered would have altered the outcome of the case. 7

The CA found that petitioner violated PD 1866 as the Certification issued by SPO1 Delfin E. Regis of the Philippine National Police

(PNP) in Iligan City was proof that the firearms found in petitioner's possession were unlicensed.

The appellate court rendered the assailed Decision which affirmed in toto the August 5, 1999 RTC Decision. The decretal portion reads:

WHEREFORE, foregoing premises considered, and pursuant to applicable law and jurisprudence on the matter, judgment is hereby rendered dismissing the instant appeal for lack of merit in fact and in law. The assailed decision dated August [5], 1995 is AFFIRMED IN TOTO. No costs.

SO ORDERED. 8 The appellate court denied petitioner's motion for reconsideration. 9 The Issues

Hence, the instant petition with petitioner ascribing the following errors:

I

THE COURT OF APPEALS ERRED IN CONVICTING THE ACCUSED DESPITE LACK OF ADEQUATE PROOF TO SHOW THE ABSENCE OF A FIREARMS LICENSE.

II

THE COURT OF APPEALS ERRED IN GIVING FULL CREDENCE TO THE TESTIMONIES OF THE PLAINTIFF-APPELLEE'S [PROSECUTION, HEREINAFTER] NBI WITNESSES WHICH HAVE BEEN TOTALLY NEGATED, BELIED AND REBUTTED BY THE WITNESSES FOR THE ACCUSED-APPELLANT TWO OF WHOM ARE MEMBERS OF THE ARMY, WHOSE TESTIMONIES HAVE NOT BEEN REBUTTED BY PLAINTIFF- APPELLEE; FURTHERMORE, THE PLAINTIFF-APPELLEE HAS SUPPRESSED EVIDENCE.

III

THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE DEFENSE OF ACCUSED-APPELLANT THAT THE FIREARMS, ETC. WERE NOT TAKEN FROM HIS HOUSE BUT ELSEWHERE.

IV

THE LOWER COURT ERRED IN FINDING THAT ACCUSED-APPELLANT IS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF VIOLATION OF P.D. 1866, AS AMENDED. 10

The Court's Ruling

The instant petition hinges primarily on the issue of credibility of witnesses. As this Court has ruled in innumerable cases, the trial court is best equipped to make the assessment on said issue and, therefore, its factual findings are generally not disturbed on appeal, "unless: (1) it is found to be clearly arbitrary or unfounded; (2) some substantial fact or circumstance that could materially affect the disposition of the case was overlooked, misunderstood, or misinterpreted; or (3) the trial judge gravely abused his or her discretion." 11 We do not find in the instant case any of the above exceptions to make us reverse the factual findings of the trial court nor those of the CA. However, in the interest of substantial justice, we will tackle the issues raised by petitioner.

Petitioner had no license to possess firearms

In the first assignment of error, petitioner contends that there is no sufficient proof that he is not licensed to possess firearms. He argues that the Certification submitted by the prosecution came from the PNP in Iligan City and not from the Firearms and Explosives Unit at the PNP in Camp Crame, the repository of the records for all firearms licenses. Moreover, petitioner asserts that said certification is only limited to the Iligan City area and that it

was not properly identified during the trial. Thus, petitioner strongly asserts that said certification from the local police unit is not sufficient and does not discount the issuance of the proper license or authority from any other legitimate source.

We disagree.

The essence of the crime penalized under PD 1866, as amended, is primarily the accused's lack of license or permit to carry or possess the firearm, as possession itself is not prohibited by law. 12 In the instant case, the prosecution has duly proven that petitioner has no license or permit to possess the seized contraband. The Certification dated January 23, 1998 issued by SPO1 Regis, Assistant Team Leader of the 90th Civil Security Team, PNP Headquarters, Iligan City, pertinently enunciates:

This is to certify that as per verification of records filed from this office as of [sic] Iligan City area, their [sic] is no name of Cayetano "Tano" Capangpangan appears [sic] in computerized firearm license as of this date.

This certification is issued for whatever legal purpose that may be serve [sic].

The contents, authenticity, and import of the above certification were admitted during the hearing by petitioner, thereby dispensing with the testimony of the issuing officer, SPO1 Regis. 13 Under Section 4 of Rule 129 of the Revised Rules on Evidence, "[A]n admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made." Clearly, petitioner cannot take a contrary or different position considering that he has made an express admission of the Certification, which does not require proof and cannot be

contradicted because there is no previous evidence that the admission was made through palpable mistake. After admitting it, he cannot now assail that said certification has not been properly identified. 14 Besides, he has had several occasions to present proof that he was licensed to possess firearms. Yet, even in this late stage he has not.

Petitioner's view that the certification is limited in scope, covering only Iligan City, and thus does not discount a proper license from any other legitimate source, cannot be sustained. The prosecution has presented the best evidence available. The Certification, duly admitted by petitioner, was issued by the proper authority and ineluctably attests that petitioner does not have any license or permit to possess firearms.

In cases of indictment for illegal possession of firearms, a negative allegation of lack of license or permit is an essential ingredient of the offense that must be proved by the prosecution. In this case there exists a prima facie case from the best available evidence. 15 This is so since a firearm license is within accused's peculiar knowledge or relates to him personally.

American case law likewise elucidates on this issue, thus:

Where the negative of an issue does not permit of direct proof, or where the facts are more immediately within the knowledge of the accused, the onus probandi rests upon him. Stated otherwise, it is not incumbent on the prosecution to adduce positive evidence to support a negative averment the truth of which is fairly indicated by established circumstances and which, if untrue, could readily be disproved by the production of documents or other evidence probably within the defendant's possession or control. For example, where a charge is made that the defendant carried on a certain business without a license, the fact that he has a license is peculiarly within his knowledge and he must establish that fact or

suffer conviction. Similarly, the burden of proof as to whether a certain offense against property was committed without the owner's consent rests on the accused, since that is a fact or circumstance peculiarly within his own knowledge. 16

In our view, the prosecution has carried such burden to prove lack of license or permit to possess firearms by presenting the best available evidence, that is, the duly admitted Certification.

Credibility of witnesses is domain of the trial court

Petitioner contends that the prosecution did not present evidence, such as the photographs allegedly taken by the NBI agents of the search, nor the testimonies of the two barangay kagawads who were allegedly present during the search of his house, to corroborate the testimonies of the NBI agents. Thus, according to him, his own evidence stands unrebutted and so must prevail. He also posits that the prosecution's failure to present the photographs amounts to evidence willfully suppressed and thus must be presumed as adverse to the prosecution if produced. He adds that in a place that is a hot bed for insurgency, it was not unusual that firearms are left unattended in abandoned huts. Petitioner explains that the surrender of the cache by army men without asking for a receipt and their failure to report to their commanding officer were minor details which do not detract from the significant fact that the cache was seized in Paliamon, Tagoloan, and not from petitioner's house in Patag, Tagoloan, five kilometers away.

We are unconvinced by petitioner.

It is well-settled in our jurisdiction that the determination of credibility of witnesses is properly within the domain of the trial court. The investigating judge is in the best position to pass judgment on the credibility of witnesses, having personally heard them when they testified and observed their deportment and

manner of testifying. 17 After review of the records, we find no reason to disbelieve the trial judge's assessment of the credibility of the witnesses.

Neither have we in our review, found palpable discrepancies in the testimonies of Sgt. Legaspi, Fernandez, and petitioner. Verily, the testimony of Sgt. Legaspi that petitioner was with 10 others conducting a survey of their land when they came upon petitioner in Paliamon, Tagoloan cannot be logically reconciled with petitioner's testimony that he was with the two Fernandez brothers who were plowing his field. Aside from being self-serving in his testimony, we have found no reason why we should depart from the familiar and fundamental presumption that officials have performed their tasks

with regularity.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

We likewise note the other discrepancies pointed out by the trial court which greatly put in suspect the testimonies of the defense. Indeed, we agree with the court a quo in finding highly unusual that the soldiers who fetched petitioner, and allegedly found the contraband in an uninhabited hut would, without even asking for a receipt, turn the arms and ammunition over to the NBI agents whom they did not know and had only met by chance. We find it likewise illogical and incredulous that the soldiers, particularly Sgt. Legaspi who was ordered to fetch petitioner and Guevara, did not report to their commanding officer upon their return. These discrepancies are not minor as they go against prudence and human nature. We will not belabor the matter further. We are not convinced that the trial court has overlooked, misunderstood, or misinterpreted some substantial fact or circumstance that could materially affect the disposition of the case. Besides, petitioner has not shown that the trial court has gravely abused its discretion or that the decision was clearly arbitrary or unfounded.

Omission of documentary evidence not fatal

Anent the issue that the prosecution did not present testimonial and documentary evidence. Suffice it to say that these are not necessary. Certainly, the documentary pieces of evidence presented by the prosecution clearly show the legal basis for the search the clear inventory of the seized contraband, and the signatures of the persons present when the search was made. That the photograph mentioned in the testimony of NBI agent Gadia was not presented will not detract from the eyewitness testimonies nor other documentary evidence. Petitioner could have, through a subpoena duces tecum, asked for these photographs, but he did not. The mere allegation of petitioner of suppression of evidence, therefore, has no factual basis.

Presentation of witness sole prerogative of prosecution

Moreover, the non-presentation of some witnesses does not necessarily give rise to an adverse presumption, as these persons are equally at the disposal of the defense, 18 who definitely have the constitutional guaranteed right "to have compulsory process to secure the attendance of witnesses." 19 If the prosecution deems it fit not to present the barangay kagawads who were present in the search and who duly signed the inventory, it is their call and prerogative. Besides, the defense could have proven that said barangay kagawadswere not there at his house by summoning them as his witnesses. Again, he did not. He cannot now assail that their failure to testify in the rebuttal is due to the fact that they were not there. Verily, with the overwhelming evidence presented by the prosecution, it has convincingly proven beyond reasonable doubt the guilt of petitioner.

WHEREFORE, we DENY the petition for lack of merit, and AFFIRM the July 12, 2001 Decision and September 13, 2001 Resolution in CA-G.R. CR No. 23655. Costs against petitioner.

SO ORDERED.

THIRD DIVISION

SR. INSP. JERRY C. VALEROSO,

Petitioner,

- versus -

G.R. No. 164815

Present:

YNARES-SANTIAGO, J., Chairperson,

CHICO-NAZARIO,

COURT OF APPEALS and PEOPLE OF THE PHILIPPINES,

Respondents.

VELASCO, JR., NACHURA, and PERALTA, JJ.

Promulgated:

September 3, 2009

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

NACHURA, J.:

RESOLUTION

For resolution is the Letter-Appeal [1] of Senior Inspector (Sr. Insp.) Jerry C. Valeroso (Valeroso) praying that our February 22, 2008 Decision [2] and June 30, 2008 Resolution [3] be set aside and a new one be entered acquitting him of the crime of illegal possession of firearm and ammunition.

The facts are briefly stated as follows:

Valeroso was charged with violation of Presidential Decree No. 1866, committed as follows:

That on or about the 10 th day of July, 1996, in Quezon City, Philippines, the said accused without any authority of law, did then and there willfully, unlawfully and knowingly have in his/her possession and under his/her custody and control

One (1) cal. 38 Charter Arms revolver bearing serial no. 52315 with five (5) live ammo.

without first having secured the necessary license/permit issued by the proper authorities.

CONTRARY TO LAW. [4]

When arraigned, Valeroso pleaded not guilty. [5] Trial on the merits ensued.

During trial, the prosecution presented two witnesses: Senior Police Officer (SPO)2 Antonio Disuanco (Disuanco) of the Criminal Investigation Division of the Central Police District Command; and Epifanio Deriquito (Deriquito), Records Verifier of the Firearms and Explosives Division in Camp Crame. Their testimonies are summarized as follows:

On July 10, 1996, at around 9:30 a.m., Disuanco received a Dispatch Order from the desk officer directing him and three (3) other policemen to serve a Warrant of Arrest, issued by Judge Ignacio Salvador, against Valeroso for a case of kidnapping with ransom. [6]

After a briefing, the team conducted the necessary surveillance on Valeroso checking his hideouts in Cavite, Caloocan, and Bulacan. Eventually, the team members proceeded to the Integrated National Police (INP) Central Police Station in Culiat, Quezon City, where they saw Valeroso about to board a tricyle.Disuanco and his team approached Valeroso. They put him under arrest, informed him of his constitutional rights, and bodily searched him. They found a Charter Arms revolver, bearing Serial No. 52315, with five (5) pieces of live ammunition, tucked in his waist. [7]

Valeroso was then brought to the police station for questioning. Upon verification in the Firearms and Explosives Division in Camp Crame, Deriquito presented a certification [8] that the subject firearm was not issued to Valeroso, but was licensed in the name of a certain Raul Palencia Salvatierra of Sampaloc, Manila. [9]

On the other hand, Valeroso, SPO3 Agustin R. Timbol, Jr. (Timbol), and Adrian Yuson testified for the defense. Their testimonies are summarized as follows:

On July 10, 1996, Valeroso was sleeping inside a room in the boarding house of his children located at Sagana Homes, Barangay New Era, Quezon City.He was awakened by four (4) heavily armed men in civilian attire who pointed their guns at him and pulled him out of the room. [10] The raiding team tied his hands and placed him near the faucet (outside the room) then went back inside, searched and ransacked the room. Moments later, an operative came out of the room and exclaimed, Hoy, may nakuha akong baril sa loob! [11]

Disuanco informed Valeroso that there was a standing warrant for his arrest. However, the raiding team was not armed with a search warrant. [12]

Timbol testified that he issued to Valeroso a Memorandum Receipt [13] dated July 1, 1993 covering the subject firearm and its ammunition, upon the verbal instruction of Col. Angelito Moreno. [14]

On May 6, 1998, the Regional Trial Court (RTC), Branch 97, Quezon City, convicted Valeroso as charged and sentenced him to suffer the indeterminate penalty of four (4) years, two (2) months and one (1) day, as minimum, to six (6) years, as maximum. The gun subject of the case was further ordered confiscated in favor of the government. [15]

On appeal, the Court of Appeals (CA) affirmed [16] the RTC decision but the minimum term of the indeterminate penalty was lowered to four (4) years and two (2) months.

On petition for review, we affirmed [17] in full the CA decision. Valeroso filed

a Motion for Reconsideration [18] which was denied with finality [19] on June 30,

2008.

Valeroso is again before us through this Letter-Appeal [20] imploring this Court to once more take a contemplative reflection and deliberation on the case,

focusing on his breached constitutional rights against unreasonable search and seizure. [21]

Meanwhile, as the Office of the Solicitor General (OSG) failed to timely file its Comment on Valerosos Motion for Reconsideration, it instead filed a Manifestation in Lieu of Comment. [22]

In its Manifestation, the OSG changed its previous position and now recommends Valerosos acquittal. After a second look at the evidence presented, the OSG considers the testimonies of the witnesses for the defense more credible and thus concludes that Valeroso was arrested in a boarding house. More importantly, the OSG agrees with Valeroso that the subject firearm was obtained by the police officers in violation of Valerosos constitutional right against illegal search and seizure, and should thus be excluded from the evidence for the prosecution. Lastly, assuming that the subject firearm was admissible in evidence, still, Valeroso could not be convicted of the crime, since he was able to establish his authority to possess the gun through the Memorandum Receipt issued by his superiors.

After considering anew Valerosos arguments through his Letter-Appeal, together with the OSGs position recommending his acquittal, and keeping in mind that substantial rights must ultimately reign supreme over technicalities, this Court is swayed to reconsider. [23]

The Letter-Appeal is actually in the nature of a second motion for reconsideration. While a second motion for reconsideration is, as a general rule, a

prohibited pleading, it is within the sound discretion of the Court to admit the same, provided it is filed with prior leave whenever substantive justice may be

better

served thereby. [24]

This is not the first time that this Court is suspending its own rules or excepting a particular case from the operation of the rules. In De Guzman v. Sandiganbayan, [25] despite the denial of De Guzmans motion for reconsideration,

we still entertained his Omnibus Motion, which was actually a second motion for reconsideration. Eventually, we reconsidered our earlier decision and remanded the case to the Sandiganbayan for reception and appreciation of petitioners evidence. In that case, we said that if we would not compassionately bend backwards and flex technicalities, petitioner would surely experience the disgrace and misery of incarceration for a crime which he might not have committed after all. [26] Also in Astorga v. People, [27] on a second motion for reconsideration, we set aside our earlier decision, re-examined the records of the case, then finally acquitted Benito Astorga of the crime of Arbitrary Detention on the ground of reasonable doubt. And in Sta. Rosa Realty Development Corporation v. Amante, [28] by virtue of the January 13, 2004 En Banc Resolution, the Court authorized the Special First Division to suspend the Rules, so as to allow it to consider and resolve respondents second motion for reconsideration after the motion was heard on oral arguments. After a re-examination of the merits of the case, we granted the second motion for reconsideration and set aside our earlier decision.

Clearly, suspension of the rules of procedure, to pave the way for the re- examination of the findings of fact and conclusions of law earlier made, is not without basis.

We would like to stress that rules of procedure are merely tools designed to facilitate the attainment of justice. They are conceived and promulgated to effectively aid the courts in the dispensation of justice. Courts are not slaves to or robots of technical rules, shorn of judicial discretion. In rendering justice, courts have always been, as they ought to be, conscientiously guided by the norm that, on the balance, technicalities take a backseat to substantive rights, and not the other way around. Thus, if the application of the Rules would tend to frustrate rather than to promote justice, it would always be within our power to suspend the rules or except a particular case from its operation. [29]

Now on the substantive aspect.

The Court notes that the version of the prosecution, as to where Valeroso was arrested, is different from the version of the defense. The prosecution claims that Valeroso was arrested near the INP Central Police Station in Culiat, Quezon City, while he was about to board a tricycle. After placing Valeroso under arrest, the arresting officers bodily searched him, and they found the subject firearm and ammunition. The defense, on the other hand, insists that he was arrested inside the boarding house of his children. After serving the warrant of arrest (allegedly for kidnapping with ransom), some of the police officers searched the boarding house and forcibly opened a cabinet where they discovered the subject firearm.

After a thorough re-examination of the records and consideration of the joint appeal for acquittal by Valeroso and the OSG, we find that we must give more credence to the version of the defense. Valerosos appeal for acquittal focuses on his constitutional right against unreasonable search and seizure alleged to have been violated by the arresting police officers; and if so, would render the confiscated firearm and ammunition inadmissible in evidence against him.

The right against unreasonable searches and seizures is secured by Section 2, Article III of the Constitution which states:

SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

From this constitutional provision, it can readily be gleaned that, as a general rule, the procurement of a warrant is required before a law enforcer can validly search or seize the person, house, papers, or effects of any individual. [30]

To underscore the significance the law attaches to the fundamental right of an individual against unreasonable searches and seizures, the Constitution succinctly declares in Article III, Section 3(2), that any evidence obtained in violation of this or the preceding section shall be inadmissible in evidence for any purpose in any proceeding. [31]

The above proscription is not, however, absolute. The following are the well-recognized instances where searches and seizures are allowed even without a valid warrant:

  • 1. Warrantless search incidental to a lawful arrest;

  • 2. [Seizure] of evidence in plain view. The elements are: a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; b) the evidence was inadvertently discovered by the police who have the right to be where they are; c) the evidence must be immediately apparent; and d) plain view justified mere seizure of evidence without further search;

  • 3. Search of a moving vehicle. Highly regulated by the government, the vehicles inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;

  • 4. Consented warrantless search;

  • 5. Customs search;

  • 6. Stop and Frisk;

  • 7. Exigent and emergency circumstances. [32]

  • 8. Search of vessels and aircraft; [and]

  • 9. Inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations. [33]

In the exceptional instances where a warrant is not necessary to effect a valid search or seizure, what constitutes a reasonable or unreasonable search or seizure is

purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured. [34]

In

light

of

the

enumerated

exceptions,

and

applying

the

test

of

reasonableness laid down above, is the warrantless search and seizure of the firearm and ammunition valid?

We answer in the negative. For one, the warrantless search could not be justified as an incident to a lawful arrest. Searches and seizures incident to lawful arrests are governed by Section 13, Rule 126 of the Rules of Court, which reads:

SEC. 13. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.

We would

like

to

stress that

without

limitations. In People

v.

the

scope of

the warrantless

search is not

Leangsiri, [35] People

v.

Cubcubin,

Jr.,

[36] and People v. Estella, [37] we had the occasion to lay down the parameters of a

valid warrantless search and seizure as an incident to a lawful arrest.

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapon that the latter might use in order to resist arrest or effect his escape. Otherwise, the officers safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestees person in order to prevent its concealment or destruction. [38]

Moreover, in lawful arrests, it becomes both the duty and the right of the apprehending officers to conduct a warrantless search not only on the person of the

suspect, but also in the permissible area within the latters reach. [39] Otherwise stated, a valid arrest allows the seizure of evidence or dangerous weapons either on the person of the one arrested or within the area of his immediate control. [40] The phrase within the area of his immediate control means the area from within which he might gain possession of a weapon or destructible evidence. [41] A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. [42]

In the present case, Valeroso was arrested by virtue of a warrant of arrest allegedly for kidnapping with ransom. At that time, Valeroso was sleeping inside the boarding house of his children. He was awakened by the arresting officers who were heavily armed. They pulled him out of the room, placed him beside the faucet outside the room, tied his hands, and then put him under the care of Disuanco. [43] The other police officers remained inside the room and ransacked the locked cabinet [44] where they found the subject firearm and ammunition. [45] With such discovery, Valeroso was charged with illegal possession of firearm and ammunition.

From the foregoing narration of facts, we can readily conclude that the arresting officers served the warrant of arrest without any resistance from Valeroso. They placed him immediately under their control by pulling him out of the bed, and bringing him out of the room with his hands tied. To be sure, the cabinet which, according to Valeroso, was locked, could no longer be considered as an area within his immediate control because there was no way for him to take any weapon or to destroy any evidence that could be used against him.

The arresting officers would have been justified in searching the person of Valeroso, as well as the tables or drawers in front of him, for any concealed weapon that might be used against the former. But under the circumstances obtaining, there was no comparable justification to search through all the desk drawers and cabinets or the other closed or concealed areas in that room itself. [46]

It is worthy to note that the purpose of the exception (warrantless search as an incident to a lawful arrest) is to protect the arresting officer from being harmed by the person arrested, who might be armed with a concealed weapon, and to prevent the latter from destroying evidence within reach. The exception, therefore, should not be strained beyond what is needed to serve its purpose. [47] In the case before us, search was made in the locked cabinet which cannot be said to have been within Valerosos immediate control. Thus, the search exceeded the bounds of what may be considered as an incident to a lawful arrest. [48]

Nor can the warrantless search in this case be justified under the plain view doctrine.

The plain view doctrine may not be used to launch unbridled searches and indiscriminate seizures or to extend a general exploratory search made solely to find evidence of defendants guilt. The doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. [49]

As enunciated in People v. Cubcubin, Jr. [50] and People v. Leangsiri: [51]

What the plain view cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which[,] he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the plain view doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. [52]

Indeed, the police officers were inside the boarding house of Valerosos children, because they were supposed to serve a warrant of arrest issued against Valeroso. In other words, the police officers had a prior justification for the intrusion. Consequently, any evidence that they would inadvertently discover may be used against Valeroso. However, in this case, the police officers did not just accidentally discover the subject firearm and ammunition; they actually searched for evidence against Valeroso.

Clearly, the search made was illegal, a violation of Valerosos right against unreasonable search and seizure. Consequently, the evidence obtained in violation of said right is inadmissible in evidence against him.

Unreasonable searches and seizures are the menace against which the constitutional guarantees afford full protection. While the power to search and seize may at times be necessary for public welfare, still it may be exercised and the law enforced without transgressing the constitutional rights of the citizens, for no enforcement of any statute is of sufficient importance to justify indifference to the basic principles of government. Those who are supposed to enforce the law are not justified in disregarding the rights of an individual in the name of order. Order is too high a price to pay for the loss of liberty. [53]

Because a warrantless search is in derogation of a constitutional right, peace officers who conduct it cannot invoke regularity in the performance of official functions. [54]

The Bill of Rights is the bedrock of constitutional government. If people are stripped naked of their rights as human beings, democracy cannot survive and government becomes meaningless. This explains why the Bill of Rights, contained as it is in Article III of the Constitution, occupies a position of primacy in the fundamental law way above the articles on governmental power. [55]

Without

the

illegally

seized

firearm,

Valerosos

conviction

cannot

stand. There is simply no sufficient evidence to convict him. [56] All told, the guilt of Valeroso was not proven beyond reasonable doubt measured by the required moral certainty for conviction. The evidence presented by the prosecution was not enough to overcome the presumption of innocence as constitutionally ordained. Indeed, it would be better to set free ten men who might probably be guilty of the crime charged than to convict one innocent man for a crime he did not commit. [57]

With the foregoing disquisition, there is no more need to discuss the other issues raised by Valeroso.

One final note. The Court values liberty and will always insist on the observance of basic constitutional rights as a condition sine qua non against the awesome investigative and prosecutory powers of the government. [58]

WHEREFORE, in view of the foregoing, the February 22, 2008 Decision and June 30, 2008 Resolution are RECONSIDERED and SET ASIDE. Sr. Insp. Jerry Valeroso is hereby ACQUITTED of illegal possession of firearm and ammunition.

SO ORDERED.

[G.R. NO. 159703 : March 3, 2008]

CEDRIC SAYCO y VILLANUEVA, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the May 23, 2003 Resolution 1 of the Court Appeals (CA) which affirmed the conviction of Cedric Sayco y Villanueva 2 (petitioner) for violation of Section 1, Presidential Decree (P.D.) No. 1866, as amended by Republic Act (R.A.) No. 8294; as well as the August 7, 2003 CA Resolution 3 which denied his Motion for Reconsideration.

The facts are not disputed.

Petitioner was charged before the Municipal Trial Court in Cities (MTCC), Bais City with illegal possession of firearms under an Information which reads:

The undersigned Prosecutor II hereby accuses ZEDRIC SAYCO Y VILLANUEVA of the crime of Illegal Possession of Firearm and Ammunitions penalized and defined under Section 1 of Presidential Decree Number 1866 as amended by Republic Act Number 8294, committed as follows:

That on or about January 3, 1999, at Bais City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there willfully, unlawfully and feloniously possess and carry away one (1) caliber 9MM marked "SIGSAUER P229" with fourteen (14) live ammunitions and with Serial Number AE 25171, without first having obtained the proper license or authority to possess the same.

An act contrary. 4

Upon arraignment, petitioner entered a plea of "Not Guilty". 5

On August 2, 2002, the MTCC rendered a Decision, the dispositive portion of which reads:

WHEREFORE, premises considered, the Court finds that the evidence presented has sufficiently established the guilt of the accused beyond reasonable doubt. The accused Zedric V. Sayco is convicted for violation of Section 1 of Presidential Decree No. 1866, as amended by Republic Act No. 8294. There being no modifying circumstances, and applying the Indeterminate Sentence Law, the Court sentences the accused to a prison term ranging from THREE YEARS, SIX MONTHS AND TWENTY DAYS of Prision Correccional Medium as minimum, to FIVE YEARS, FOUR MONTHS and TWENTY DAYS of Prision Correccional Maximum as maximum, and to pay a fine of FIFTEEN THOUSAND PESOS. The firearm (Exhibit A) and the ammunitions (Exhibit B) are forfeited in favor of the government, to be disposed of in accordance with law.

IT IS SO ORDERED. 6

On appeal, the Regional Trial Court (RTC), Bais City issued a Decision dated March 14, 2003, affirming the conviction of petitioner but lowering his penalty as follows:

WHEREFORE, premises considered, the Judgment dated August 2, 2002 rendered by the Municipal Trial Court in Cities, Bais City in Criminal Case No. 99-001 is hereby affirmed in all respects subject only to the modification with respect to the penalty imposed by the trial court. The herein accused-appellant is hereby sentenced to the indeterminate penalty of four (4) months of arresto mayor as maximum [sic] to two (2) years, four (4) months and one (1) day of prision correccional as maximum [sic].

SO ORDERED. 7

Petitioner filed with the CA a Petition for Review but the same was denied in the May 23, 2003 CA Resolution assailed herein. Petitioner's Motion for Reconsideration 8 was also denied by the CA in its August 7, 2003 Resolution.

Hence, the present Petition raising the following issues:

I

Whether the lower court erred in convicting the petitioner for violation of P.D. 1866, as amended by RA 8294, despite the latter's proof of authority to possess the subject firearm.

II

Whether the prosecution's evidence proved the petitioner's guilt beyond reasonable doubt. 9

As summarized by the RTC and MTCC, the evidence for the prosecution consisted of the following:

EVIDENCE OF THE PROSECUTION

The first prosecution witness in the person of PO3 Mariano Labe testified on January 17, 2002. He declared that on or about 3:35 in the afternoon of January 3, 1999, while they were at the Police

Station, they received a telephone call from a concerned citizen from Tavera Street, Bais City, informing them that one unidentified person was inside Abueva's Repair Shop located at Tavera Street, tucking a handgun on his waist. They immediately went to the aforementioned place, and upon their arrival thereat, they saw one unidentified person tucking a handgun on his right side waistline. They approached the unidentified person and asked him if he had a license to possess said firearm, but the answer was in the negative. At this juncture, they immediately effected the arrest, and confiscated from his possession and custody a Caliber 9MM marked "SIGSAUER P299" with 14 live ammunitions with Serial No. AE 25171. The arrested person was identified as Zedric Sayco y Villanueva, a resident of Binalbagan, Negros Occidental.

SPO2 VALENTINO ZAMORA, member of the PNP Bais City, testified on February 26, 2002. He was presented to corroborate the testimony of Mariano Labe. He further declared that during the incident, they talked to the accused in Cebuano, but they found out then that the latter is an Ilonggo, so they spoke to him in English.

SPO2 VICENTE DORADO also testified on February 26, 2002. He corroborated the testimony of SPO2 Valentino Zamora and PO2 Mariano Labe.

The following exhibits were admitted as part of the evidence of the prosecution:

Exhibit A - one (1) 9 mm pistol with serial no. 25171.

Exhibit B - fourteen (14) pieces live ammunition and one (1) magazine placed in a black plastic bag.

Exhibit C - Joint Affidavit of the police officers. 10 (Emphasis

supplied)cralawlibrary

For his defense, petitioner does not deny that he was in possession of the subject firearm and ammunitions when he was apprehended on January 3, 1999 in Bais City, but he insists that he had the requisite permits to carry the same, specifically:

1) Memorandum Receipt for Equipment (Non-expendable Property), which reads:

Hqs Field Station 743, 7ISU, ISG, PA, Camp Montelibano Sr., Bacolod City, Philippines, 01 January 1999. I acknowledge to have received from MAJOR RICARDO B. BAYHON (INF) PA, Commanding Officer, FS743, 7ISU, ISG, PA the following property for which I am responsible, subject to the provision of the accounting law and which will be used in the office of FS 7431.

QTY

UNIT

NAME OF

CLASSI

UNIT

TOTAL

DESCRIPTION

FICATION

PRICE

  • 1 ea

Cal 9mm (SIG SAUER) SN: AE 25171

Pistol

   
  • 2 ea

Mags for Cal 9mm pistol

     

24

ea

Ctgs for 9mm Ammo

x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x - NOTHING FOLLOWS -x-x-x-x-x- x-x-x-x-x-x-x-x-x-x-x-x-x

Basis: For use of subject EP in connection with his official duties/mission in the AOR.

NOTED BY:

APPROVED BY:

Nolasco B. James (SGD) SSg (Inf) PA FS Supply NCO

RICARDO B BAYHON (SGD) Major (INF) PA Commanding Officer

 

CA Zedric V. Zayco (SGD) Confidential Agent; 11

and 2) Mission Order dated January 1, 1999, thus:

Mission Orders

Number: FS743-A-241

TO: CA Cedric V. Zayco

  • I. DESTINATION Negros Island

II. PURPOSE C O N F I D E N T I A L

III. DURATION 01 January 1999 to 31 March 1999

IV. AUTHORIZED ATTIRE/UNIFORM

GOA ( ) BDA ( ) Civilian (x)

  • V. AUTHORIZED TO CARRY FIREARMS: (x) Yes ( ) No.

Caliber

Make

Kind

Serial Nr

MR/License Nr

Nr Ammo

9mm

Sig

Pistol

AE25171

ISG Prop

24 rds

Sauer

VI. SPECIFIC INSTRUCTIONS:

A. For personnel in uniform, the firearms shall be placed in holster securely attached to the belt. Personnel in uniform without holster and personnel in civilian attire will ensure that their firearms are concealed unless in actual and lawful use.

x x x

RICARDO B. BAYHON (SGD) Major (INF) PA FS 743 Commander 12

The RTC and MTCC gave no significance to the foregoing documents. The MTCC held that the Memorandum Receipt and Mission Order do not constitute the license required by law because "they were not issued by the Philippine National Police (PNP) Firearms and Explosives Unit, but by the Commanding Officer of the Philippine Army who is not authorized by law to issue licenses to civilians to possess firearms and ammunitions." 13 The RTC added that, as held in Pastrano v. Court of Appeals 14 and Belga v. Buban, 15 said documents cannot take the place of the requisite license. 16

The CA wholly concurred with both courts.

In the present Petition, petitioner insists that he is a confidential agent of the Armed Forces of the Philippines (AFP), and it was in that capacity that he received the subject firearm and ammunitions from the AFP. As said firearm and ammunitions are government property duly licensed to the Intelligence Security Group (ISG) of the AFP, the same could not be licensed under his name; 17 instead, what he obtained were a Memorandum Receipt and a Mission Order whereby ISG entrusted to him the subject firearm and ammunitions and authorized him to carry the same around Bacolod City. Petitioner further argues that he merely acted in good faith when he relied on the Memorandum Receipt and Mission Order for authority to carry said firearm and ammunitions; thus, it would be a grave

injustice if he were to be punished for the deficiency of said documents. 18

The Solicitor General filed his Comment, 19 pointing out that good faith is not a valid defense in the crime of illegal possession of firearms. 20

The arguments of petitioner are not tenable.

The corpus delicti in the crime of illegal possession of firearms is the accused's lack of license or permit to possess or carry the firearm, as possession itself is not prohibited by law. 21 To establish the corpus delicti, the prosecution has the burden of proving that the firearm exists and that the accused who owned or possessed it does not have the corresponding license or permit to possess or carry the same. 22

There is no dispute over these key facts: first, that the subject firearm and ammunitions exist; second, that petitioner had possession thereof at the time of his apprehension; third, that petitioner is a confidential agent of the ISG-AFP; fourth, that petitioner lacks a license issued by the Firearms and Explosives Unit of the PNP; and fifth, that petitioner holds a Memorandum Receipt and Mission Order covering the subject firearm and ammunitions. Thus, the issue to be resolved is confined to whether petitioner's Memorandum Receipt and Mission Order constitute sufficient authority for him to possess the subject firearm and ammunitions and carry the same outside of his residence, without violating P.D. No. 1866, as amended by R.A. No. 8294.

As correctly cited by the Solicitor General, it is a settled jurisprudence that a memorandum receipt and mission order cannot take the place of a duly issued firearms license, 23 and an accused who relies on said documents cannot invoke good faith as a defense against a prosecution for illegal possession of firearms, as this is a malum prohibitum. 24 Petitioner interposed no new argument that would convince this Court to abandon a deep-rooted jurisprudence.

However, rather than outrightly dismiss the present petition in the light of existing jurisprudence, this Court finds it opportune to

examine the rules governing the issuance of memorandum receipts and mission orders covering government-owned firearms to special and confidential civilian agents, in order to pave the way for a more effective regulation of the proliferation of such firearms and the abatement of crimes, such as extra-judicial killings, attendant to such phenomenon.

In 1901, the United States Philippine Commission enacted Act No. 175, providing for the organization of an Insular Constabulary. Section 6 vested in the Chief of the Insular Constabulary the following authority over the distribution of firearms:

Section 6. The Insular Chief shall prescribe for the Insular Constabulary suitable arms, uniform, and equipment and shall report to the Commission, through the Civil Governor, his action in this regard, together with a statement of the cost, to the end that appropriation may be made to defray the cost thereof. The guns, revolvers, and ammunitions needed to equip the insular and municipal police shall be purchased by the Insular Purchasing Agent on the order of the Chief of Insular Constabulary, by whom they shall be distributed to the provinces and municipalities as they may be needed. The Chief of the Insular Constabulary shall keep a record of the guns and revolvers distributed, by their numbers, to municipalities and provinces x x x. (Emphasis supplied)cralawlibrary

Firearms owned by the government may therefore be distributed by the Chief of the Insular Constabulary to the members of the insular and municipal police, with merely a record of the distribution being required.

Shortly, the Philippine Commission enacted Act No. 1780 25 regulating possession of firearms:

Section 1. It shall be unlawful for any person, firm, or corporation, for purposes of sale, to import, buy or otherwise acquire, dispose of, possess, or have the custody of any rifle, musket, carbine, shotgun, revolver, pistol, or air rifle, except air rifles of small caliber and limited range used as toys, or any other deadly weapon x x x unless and until such person, firm, or corporation shall

secure a license, pay the license fee, and execute a bond and otherwise comply with the requirements of this Act and the rules and regulations issued in executive orders by the Governor-General pursuant to the provisions of this Act x x x. (Emphasis supplied)cralawlibrary

but exempted therefrom the following government-owned firearms:

Section 16. The foregoing provisions of this Act shall not apply to firearms and ammunition therefor regularly and lawfully issued to officers, soldiers, sailors, or marines of the United States Army and Navy, the Constabulary, guards in the employ of the Bureau of Prisons, the police force of the City of Manila, provincial prisoners and jails when such firearms are in possession of such officials and public servants for use in the performance of their official duties. (Emphasis supplied)cralawlibrary

The 1917 Revised Administrative Code 26 retained the foregoing exemption:

Section 879. Exemption as to firearms and ammunition used by military and naval forces or by peace officers. - This article shall not apply to firearms and ammunition regularly and lawfully issued to officers, soldiers, sailors, or marines of the Unites States Army and Navy, the Philippine Constabulary, guards in the employment of the Bureau of Prisons, municipal police, provincial governors, lieutenant governors, provincial treasurers, municipal police, provincial governors, lieutenant governors, provincial treasurers, municipal treasurers, municipal presidents, and guards of provincial prisoners and jails, when such firearms are in possession of such officials and public servants for use in the performance of their official duties.(Emphasis supplied)cralawlibrary

In People of the Philippines v. Macarandang, 27 we interpreted Section 879 of the 1917 Revised Administrative Code as applicable to a secret agent appointed by a governor as said agent holds a position equivalent to that of peace officer or member of the municipal police. We reiterated this ruling in People of the Philippines v. Licera. 28

In People v. Asa, 29 we acquitted a civilian guard from a charge of illegal possession of firearms on the ground that he acted in good faith in bearing the firearms issued to him by his superior.

Two years later, in People v. Mapa, 30 the Court, speaking through Justice Fernando, overhauled its interpretation of Section 879, thus:

The law is explicit that except as thereafter specially allowed, "it shall be unlawful for any person to x x x possess any firearm, detached parts of firearms or ammunition therefor, or any instrument or implement used or intended to be used in the manufacture of firearms, parts of firearms, or ammunition." The next section provides that "firearms and ammunition regularly and lawfully issued to officers, soldiers, sailors, or marines [of the Armed Forces of the Philippines], the Philippine Constabulary, guards in the employment of the Bureau of Prisons, municipal police, provincial governors, lieutenant governors, provincial treasurers, municipal treasurers, municipal mayors, and guards of provincial prisoners and jails," are not covered "when such firearms are in possession of such officials and public servants for use in the performance of their official duties."

The law cannot be any clearer. No provision is made for a

secret agent. As such he is not exempt. Our task is equally clear. The first and fundamental duty of courts is to apply the law. "Construction and interpretation come only after it has been demonstrated that application is impossible or inadequate without

them." The conviction of the accused must stand. It cannot be set aside.

Accused however would rely on People v. Macarandang, where a secret agent was acquitted on appeal on the assumption that the appointment "of the accused as a secret agent to assist in the maintenance of peace and order campaigns and detection of crimes, sufficiently put him within the category of a "peace officer" equivalent even to a member of the municipal police expressly

covered by section 879." Such reliance is misplaced. It is not within the power of this Court to set aside the clear and explicit mandate of a statutory provision. To the extent therefore that this decision conflicts with what was held in

People v. Macarandang, it no longer speaks with authority. 31 (Emphasis supplied)cralawlibrary

We also abandoned the view that good faith is a defense against a prosecution for illegal possession of firearms. 32

On June 29, 1983, P.D. No. 1866 was issued, imposing stiffer penalties on illegal possession of firearms. It also added the following separate requirement for carrying firearms:

Section 1. Unlawful manufacture, sale, acquisition, disposition or possession of firearms and ammunition or implements used or

intended to be used in the manufacture of firearms or ammunition. - x x x The penalty of prision mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor.

x x x

Section 7. Unauthorized issuance of authority to carry firearms and/or ammunition outside of residence. - The penalty of prision correccional shall be imposed upon any person, civilian or military, who shall issue authority to carry firearm and/or ammunition outside of residence without authority therefor.

P.D. No. 1866 was later amended by R.A. No. 8294, 33 which lowered the imposable penalties for illegal possession of firearm when no other crime is committed. However, neither law amended or repealed Section 879 of the 1917 Revised Administrative Code. Even Executive Order No. 292, otherwise known as the 1987 Administrative Code, 34 left Section 879 untouched.

As matters stand, therefore, Section 879, as construed by this Court in Mapa and Neri, and reinforced by paragraph 6, Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, is still the basic law on the issuance, possession and carrying of government-owned firearms.

In exercise of its rule-making authority under Section 8 35 of P.D. No. 1866, the Chief of the Philippine Constabulary issued The Implementing Rules and Regulations of P.D. No. 1866, which

includes the following provisions salient to the issuance, possession and carrying of government-owned firearms:

Section 1. Definition of terms. - For purposes of Presidential Decree No. 1866, the following terms shall mean and be interpreted as hereinafter defined:

  • x x x

  • d. "Mission Order" - is a written directive or order issued by

government authority as enumerated in Section 5 hereof to persons who are under his supervision and control for a definite purpose or objective during a specified period and to such place or places as therein mentioned which may entitle the bearer thereof to carry his duly issued or licensed firearm outside of his residence when so specified therein.

  • e. "Permit to Carry Firearm Outside of Residence" - is a written

authority issued to any person by the Chief of Constabulary which entitles such person to carry his licensed or lawfully issued firearms outside of residence for the duration and purpose specified therein.

  • f. "Residence" - refers to that place where the firearm and

ammunition are being permanently kept. It includes the office or house where they are kept and the premises of the house enclosed by walls and gates separating said premises from adjacent properties. For firearms covered bya regular license or special permit, their residence shall be that specified in the license or permit; and those covered by a Certificate of Registration ora Memorandum Receipt, their residence in the office/station to which the grantee belongs.

  • x x x

Section 5. Authority to issue mission order involving the carrying of firearm. - The following are authorized to issue mission orders with provisions which may entitle the bearer thereof to carry his issued/licensed firearm and ammunition for the duration of such mission:

  • A. For officers, men and regular civilian agents of the Ministry of

National Defense (MOND)/Armed Forces of the Philippines (AFP)

including members of the ICHDF:

  • x x x

(8) Provincial commanders, METRODISCOM commanders, company commanders and their equivalent in the Philippine Air Force and Philippine Navy.

  • x x x

Section 6. Specific guidelines in the carrying of firearms outside of residence. - The following specific guidelines shall be strictly observed in the carrying of firearm outside of residence:

  • A. Lawful Holders of Firearm - Lawful holders of firearm (regular

licenses, special permit, certificate of registration or M/R) are prohibited from carrying their firearms outside of residence except when they have been issued by the Chief of Constabulary a permit to carry firearm outside of their residence as provided for in Section hereof or in actual performance of duty or official mission under Section 4 and 5 hereof. (Emphasis supplied.)

Section 6 (a) of the Implementing Rules and Regulations was later amended to read as follows:

a-1. Mission Order. - x x x No Mission Order shall be issued to any civilian agent authorizing the same to carry firearms outside of residence unless he/she is included in the regular plantilla of the government agency involved in law enforcement and is receiving regular compensation for the services he/she is rendering in the agency. Further, the civilian agent must be included in a specific law enforcement/police/intelligence project proposal or special project which specifically requires the use of firearm(s) to insure its accomplishment and that the project is duly approved at the PC Regional Command level or its equivalent level in other major services of the AFP, INP and NBI, or at higher level of command. (Emphasis supplied)cralawlibrary

The Ministry of Justice also issued Memorandum Circular No. 8 dated October 16, 1986, further strengthening the foregoing Implementing Rules and Regulations, to wit:

x x x It is unlawful for any person or office to issue a mission order authorizing the carrying of firearms by any person unless the following conditions are met:

  • 1. That the AFP officer is authorized by the law to issue the mission

order.

  • 2. That the recipient or addressee of the mission order is also

authorized by the law to have a mission order, i.e., he must be an organic member of the command/unit of the AFP officer issuing the mission order.If mission orders are issued to civilians (not members of the uniformed service), they must be civilian agents included in the regular plantilla of the government agency involved in law enforcement and are receiving regular compensation for services they are rendering. (Emphasis supplied)cralawlibrary

Earlier, a Letter Directive dated May 19, 1984 36 was issued to the Chief of Staff of the AFP, prohibiting the issuance of government- owned firearms to civilians, viz:

  • 4. The Implementing Rules and Regulations of P.D. 1866 which

codifies all the laws on firearms and explosives clarify the following:

x x x

b. Section 5 identifies the officials/officers of the MOND/AFP who are authorized to issue Mission Orders to enable AFP officers, men and regular civilian agents carry their firearms in the performance of their duties. Regular civilian agents are those who are covered by Permanent or Temporary Civil Service attested appointments in the plantilla of civilian employees. Special or confidential civilian agents or the like are not regular civilian agents and are therefore violating the law when they carry firearms (personal-owned or government-issued) with Mission Orders.

c. There are no other laws or AFP regulations authorizing the loan of AFP-owned firearms to private firms and individuals. (Emphasis

supplied)cralawlibrary

It is noted that the Implementing Rules and Regulations of P.D. No. 1866, as amended, allude to "memorandum receipts" covering government-owned firearms. While said rules do not define the term, we can derive its meaning from Section 492 of the Government Auditing and Accounting Manual (Volume I:

Government Auditing Rules and Regulations) 37 to wit:

Section 492. Issues of equipment to officers and employees. - Equipment issued by the property officer for official use of officials and employees shall be covered by Memorandum

Receipt for Equipment (MR) which shall be renewed every January of the third year after issue. MRs not renewed after three

years shall not be considered in making physical count of the equipment. (Emphasis supplied)cralawlibrary

From the foregoing discussion, therefore, the rules governing memorandum receipts and mission orders covering the issuance to and the possession and/or carrying of government-owned firearms by special or confidential civilian agents may be synthesized as follows:

First, special or confidential civilian agents who are not included in the regular plantilla of any government agency involved in law enforcement or receiving regular compensation for services rendered are not exempt from the requirements under P.D. No. 1866, as amended by R.A. No. 8294, of a regular license to possess firearms and a permit to carry the same outside of residence;

Second, said special or confidential civilian agents are not qualified to receive, obtain and possess government-owned firearms. Their ineligibility will not be cured by the issuance of a memorandum receipt for equipment covering said government-owned firearms. Neither will they qualify for exemption from the requirements of a regular firearms license and a permit to carry firearms by the mere issuance to them of a government-owned firearms covered by a memorandum receipt; andcralawlibrary

Third, said special or confidential civilian agents do not qualify for mission orders to carry firearms (whether private-owned or government-owned) outside of their residence.

The foregoing rules do not apply to special or confidential civilian agents in possession of or bearing private-owned firearms that are duly licensed and covered by permits to carry the same outside of residence.

Set against the foregoing rules, it is clear that petitioner is not authorized to possess and carry the subject firearm and ammunition, notwithstanding the memorandum receipt and mission order which were illegally issued to him. Petitioner is a planter 38 who was recruited to assist in the counter-insurgency campaign of the AFP. 39 However, as he offered no evidence that he is in the regular plantilla of the AFP or that he is receiving regular compensation from said agency, he cannot be considered a regular civilian agent but a mere confidential civilian agent as defined under Section 6(a) of the Implementing Rules and Regulations of P.D. No. 1866. As such, he was not authorized to receive the subject government-owned firearm and ammunitions. The memorandum receipt he signed to account for said government properties did not legitimize his possession thereof.

Neither was petitioner authorized to bear the subject firearm and ammunitions outside of his residence. The mission order issued to petitioner was illegal, given that he is not a regular civilian agent but a mere confidential civilian agent. Worse, petitioner was not even acting as such confidential civilian agent at the time he was carrying the subject firearm and ammunitions. Petitioner testified that at that time, he was not on an official mission in Bais City but had merely visited the place to attend to a family emergency. 40

While this Court sustains the conviction of petitioner for illegal possession of firearms, we re-examine the imprisonment term to which petitioner was sentenced by the RTC, as affirmed by the CA.

The MTCC imposed on petitioner the penalty of imprisonment for three (3) years, six (6) months and twenty (20) days of prision correccional medium as minimum, to five (5) years, four (4) months

and twenty (20) days of prision correccional maximum as maximum. 41 Applying the Indeterminate Sentence Law, the RTC lowered the penalty to four (4) months of arresto mayoras minimum, to two (2) years, four (4) months and one (1) day of prision correccional as maximum. 42 The CA affirmed the RTC.

A further revision of the penalty is warranted in view of the special provision in the Indeterminate Sentence Law applicable to crimes penalized by a special law, to wit:

Section 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. (Emphasis supplied)cralawlibrary

P.D. No. 1866 imposed the penalty of reclusion temporal in its maximum period to reclusion perpetua for illegal possession of firearms. R.A. No. 8294 lowered the penalty, as follows:

Section 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows:

Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or

Intended to be Used in the Manufacture of Firearms or Ammunition. - The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used

or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. (Emphasis supplied.)

Under Article 27 of the Revised Penal Code, prision correccional in its maximum period ranges from four (4) years, two (2) months and one (1) day, to six (6) years. As prescribed under Section 1 of the Indeterminate Sentence Law, the appropriate penalty that can be imposed on petitioner should keep within said range. Thus, there being no attendant mitigating or aggravating circumstance, and considering that petitioner accepted the subject firearm and ammunitions from the government under the erroneous notion that the memorandum receipt and mission order issued to him legitimized his possession thereof, the appropriate indeterminate penalty is four (4) years, two (2) months and one (1) day as minimum to five (5) years, four (4) months and twenty-one (21) days as maximum.

WHEREFORE, the petition is DENIED. However, for reasons stated in the text of herein Decision, the Resolutions dated May 23, 2003 and August 7, 2003 of the Court of Appeals in CA-G.R. SP No. 27228 together with the Decision dated March 14, 2003 of the Regional Trial Court of Bais City are MODIFIED insofar only as the penalty of imprisonment is concerned. Petitioner Cedric Sayco y Villanueva is sentenced to serve an indeterminate penalty of four (4) years, two (2) months and one (1) day of prision correccional as minimum, to five (5) years, four (4) months and twenty-one (21) days of prision correccional as maximum.

SO ORDERED.

THIRD DIVISION

[G.R. NO. 158788 : April 30, 2008]

ELY AGUSTIN, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking to annul the Decision 1 of the Court of Appeals (CA) dated January 22, 2003, affirming the Decision of the Regional Trial Court, Branch 24 of Cabugao, Ilocos Sur (RTC) convicting Ely Agustin (petitioner) of the crime of Illegal Possession of Firearms under Presidential Decree (P.D.) No. 1866, and the CA Resolution 2 dated June 23, 2003, denying petitioner's Motion for Reconsideration.

The records reveal that on October 1, 1995, at 7:20 in the evening, armed men robbed the house of spouses George and Rosemarie Gante in Barangay Pug-os, Cabugao, Ilocos Sur, forcibly taking with them several valuables, including cash amounting to P600,000.00. 3 Forthwith, the spouses reported the matter to the police, who, in turn, immediately applied for a search warrant with the Municipal Trial Court (MTC) of Cabugao, Ilocos Sur. 4 The MTC issued Search Warrant No. 5-95, 5 directing a search of the items stolen from the victims, as well as the firearms used by the perpetrators. One of the target premises was the residence of petitioner, named as one of the several suspects in the crime.

On October 6, 1995, armed with the warrant, policemen searched the premises of petitioner's house located in Sitio Padual, Barangay

Pug-os, Cabugao, Ilocos Sur. The search resulted in the recovery of a firearm and ammunitions which had no license nor authority to possess such weapon, and, consequently, the filing of a criminal case, docketed as Criminal Case No. 1651-K, for violation of P.D. No. 1866 or Illegal Possession of Firearms, against petitioner before the RTC. The Information against petitioner reads as follows:

That on or about the 6th day of October 1995, in the municipality of Cabugao, province of Ilocos Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously have in his possession, control and custody one (1) revolver caliber .38 (Cebu Made) with Serial No. 439575 with five (5) live ammunitions, without the necessary license or authority to possess and carry the same being usual instrument in the commission of crimes or acts of violence.

Contrary to law. 6

Thereafter, trial ensued. The prosecution presented eight witnesses namely: (1) P/Insp. Anselmo Baldovino 7 (P/Insp. Baldovino), a police investigator and the applicant for the search warrant; (2) Rosemarie Gante (Gante), the victim of the robbery and private complainant; (3) Ignacio Yabes (Yabes), a Municipal Local Government Operations Officer of the Department of Interior and Local Government who was the civilian witness to the search; (4) P/Supt. Bonifacio Abian 8 (P/Supt. Abian), Deputy Provincial Director of the Philippine National Police and part of the search team; (5) SPO4 Marino Peneyra (SPO4 Peneyra); (6) SPO1 Franklin Cabaya (SPO1 Cabaya); (7) SPO1 James Jara (SPO1 Jara); and (8) SPO2 Florentino Renon (SPO2 Renon).

For his defense, petitioner and his wife Lorna Agustin (Lorna) testified.

The prosecution's case centered mainly on evidence that during the enforcement of the search warrant against petitioner, a .38 caliber revolver firearm was found in the latter's house. 9 In particular, SPO1 Cabaya testified that while poking at a closed rattan cabinet near the door, he saw a firearm on the lower shelf. 10 The gun is a .38 caliber revolver 11 with five live ammunitions, 12 which he immediately turned over to his superior, P/Insp. Baldovino. 13

Petitioner anchored his defense on denial and frame-up. The petitioner and his wife Lorna assert that petitioner does not own a gun. 14 Lorna testified that she saw a "military" man planting the gun. 15

After trial, the RTC rendered its Decision 16 dated July 7, 1999, finding petitioner guilty beyond reasonable doubt, as follows:

WHEREFORE, finding the accused, Ely Agustin @ "Belleng" GUILTY beyond reasonable doubt of Illegal Possession of Firearm, he is hereby sentenced to a prison term ranging from FOUR (4) YEARS and TWO (2) MONTHS, as minimum, to SIX (6) YEARS, as maximum, both of prision correccional, with the accessories of the law [sic], to pay a fine of P15,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs. The gun (Exh. "G") is confiscated and forfeited in favor of the Government.

SO ORDERED. 17

Petitioner filed an appeal with the CA, docketed as CA-G.R. CR No.

25452.

The CA rendered herein assailed Decision 18 dated January 22, 2003, affirming with modification the decision of the trial court, thus:

WHEREFORE, except for the MODIFICATION reducing and changing the maximum of the prison term imposed to Five (5) Years Four (4)

Months and Twenty (20) Days, the appealed Decision is otherwise AFFIRMED.

SO ORDERED. 19

Hence, the instant Petition for Review, on the principal ground that the CA gravely erred in finding that the guilt of petitioner has been proven beyond reasonable doubt; and more specifically, in giving weight and credence to the testimonies of the police officers who searched the house of the petitioner which are replete with material and irreconcilable contradictions and in giving SPO1 Cabaya the presumption of regularity in the performance of duty despite the claim of Lorna that the .38 caliber revolver was planted.

Petitioner insists that the trial court and the CA committed reversible error in giving little credence to his defense that the firearm found in his residence was planted by the policemen. He also alleges material inconsistencies in the testimonies of the policemen as witnesses for the prosecution, which amounted to failure by the prosecution to prove his guilt beyond reasonable doubt.

The petition has merit.

The paramount issue in the present case is whether the prosecution established the guilt of petitioner beyond reasonable doubt; and in the determination thereof, a factual issue, that is, whether a gun was found in the house of petitioner, must necessarily be resolved.

It is a well-entrenched rule that appeal in criminal cases opens the whole case wide open for review. 20

In convicting petitioner, the RTC relied heavily on the testimony of SPO1 Cabaya, who testified that he discovered the subject firearm in a closed cabinet inside the former's house. The trial court brushed aside petitioner's defense of denial and protestations of

frame-up. The RTC justified giving full credence to Cabaya's testimony on the principles that the latter is presumed to have performed his official duties regularly; that he had no ill motive to frame-up petitioner; and that his affirmative testimony is stronger than petitioner's negative testimony. 21

For its part, the CA justified its affirmation of the trial court's decision on the basis of long-standing principles that denials, such as the one made by petitioner, "cannot be given greater evidentiary value over the testimony of credible witnesses who testified on affirmative matters," and reiterated that "absent evidence x x x that the prosecution witness was moved by improper motive, the presumption is that no such ill motive exists, and his testimony is entitled to full faith and credit." 22 The CA upheld the trial court's findings of presumption of regular performance of duty on the part of the searching policemen and the weakness of the petitioner's defense of frame-up. 23

Weighing these findings of the lower courts against the petitioner's claim that the prosecution failed to prove its case beyond reasonable doubt due to the material inconsistencies in the testimonies of its witnesses, the Court finds, after a meticulous examination of the records that the lower courts, indeed, committed a reversible error in finding petitioner guilty beyond reasonable doubt of the crime he was charged with. The RTC and the CA have overlooked certain facts and circumstances that would have interjected serious apprehensions absolutely impairing the credibility of the witnesses for the prosecution.

The conflicting testimonies of the prosecution witnesses as to who actually entered the house and conducted the search, who "discovered" the gun, and who witnessed the "discovery" are material matters because they relate directly to a fact in issue; in the present case, whether a gun has been found in the house of petitioner; or to a fact to which, by the process of logic, an

inference may be made as to the existence or non-existence of a fact in issue. 24 As held in United States v. Estraña, 25 a material matter is the main fact which is the subject of inquiry or any circumstance which tends to prove that fact or any fact or circumstance which tends to corroborate or strengthen the testimony relative to the subject of inquiry or which legitimately affects the credit of any witness who testifies.

The evidence of prosecution is severely weakened by several contradictions in the testimonies of its witnesses. Especially damaged is the credibility of SPO1 Cabaya, none of whose declarations on material points jibes with those of the other prosecution witnesses. In the face of the vehement and consistent protestations of frame-up by petitioner and his wife, the trial court and the CA erred in overlooking or misappreciating these inconsistencies. To repeat, the inconsistencies are material as they delve into the very bottom of the question of whether or not SPO1 Cabaya really found a firearm in the house of petitioner.

First material inconsistency:

On SPO1 Cabaya's companions and the circumstances of his discovery of the subject firearm

SPO1 Cabaya testified that he entered the house with four other policemen, among whom were SPO1 Jara, SPO4 Peneyra, SPO3 Bernabe Ocado (SPO3 Ocado) and another one whose name he does not remember. 26 While searching, he discovered the firearm in the kitchen, inside a closed cabinet near the door. 27 He said that SPO1 Jara was standing right behind him, at a distance of just one meter, when he (Cabaya) saw the firearm;