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THIRD DIVISION

[G.R. NO. 164815 : February 22, 2008]

SR. INSP. JERRY C. VALEROSO, Petitioner, v. THE

PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

REYES, R.T., J.:

THE law looks forward, never backward. Lex

prospicit, non respicit. A new law has a prospective,
not retroactive, effect.1 However, penal laws that
favor a guilty person, who is not a habitual criminal,
shall be given retroactive effect.1-a These are the
rule, the exception and exception to the exception on
effectivity of laws.

Ang batas ay tumitingin sa hinaharap,

hindi sa nakaraan. Gayunpaman, ang
parusa ng bagong batas ay iiral kung
ito ay pabor sa taong nagkasala na
hindi pusakal na kriminal.

We apply the exception rather than the rule in this

Petition for Review on Certiorari of the decision of the
Court of Appeals (CA), affirming with modification
that of the Regional Trial Court (RTC) in Quezon City,
finding petitioner liable for illegal possession of a
firearm.

The Facts

On July 10, 1996, at around 9:30 a.m., SPO2 Antonio

M. Disuanco of the Criminal Investigation Division,
Central Police District Command, received a dispatch
order2 from the desk officer.3 The order directed him
and three (3) other policemen to serve a warrant of
arrest4 issued by Judge Ignacio Salvador against
petitioner Sr. Insp. Jerry C. Valeroso in a case for
kidnapping with ransom.5

After a briefing, the team conducted the necessary

surveillance on petitioner, checking his hideouts in
Cavite, Caloocan, and Bulacan.6 Eventually, the team
proceeded to the Integrated National Police (INP)
Central Station at Culiat, Quezon City, where they
saw petitioner as he was about to board a tricycle.7
SPO2 Disuanco and his team approached petitioner.8
They put him under arrest, informed him of his
constitutional rights, and bodily searched him.9
Found tucked in his waist10 was a Charter Arms,
bearing Serial Number 5231511 with five (5) live
ammunition.12

Petitioner was then brought to the police station for

questioning.13

A verification of the subject firearm at the Firearms

and Explosives Division at Camp Crame revealed that
it was not issued to petitioner but to a certain Raul
Palencia Salvatierra of Sampaloc, Manila.14 Epifanio
Deriquito, the records verifier, presented a
certification15 to that effect signed by Edwin C.
Roque, chief records officer of the Firearms and
Explosive Division.16

Petitioner was then charged with illegal possession of

firearm and ammunition under Presidential Decree
(P.D.) No. 1866,17 as amended. The Information
read:

That on or about the 10th 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.

Quezon City, Philippines, July 15, 1996.

(Sgd.)

GLORIA VICTORIA C. YAP

Assistant City Prosecutor18

With the assistance of his counsel de parte, Atty.

Oscar Pagulayan, petitioner pleaded not guilty when
arraigned on October 9, 1996.19 Trial on the merits
ensued.

SPO2 Disuanco and Deriquito testified for the

prosecution in the manner stated above.

Upon the other hand, the defense version was

supplied by the combined testimonies of petitioner
Sr. Insp. Jerry C. Valeroso, SPO3 Agustin R. Timbol,
Jr. and Adrian Yuson.

Petitioner recounted that on July 10, 1996, he was

fast asleep in the boarding house of his children
located at Sagana Homes, Barangay New Era,
Quezon City.20 He was roused from his slumber
when four (4) heavily armed men in civilian clothes
bolted the room.21 They trained their guns at him22
and pulled him out of the room. They then tied his
hands and placed him near the faucet.23 The raiding
team went back inside and searched and ransacked
the room.24 SPO2 Disuanco stood guard outside with
him.25 Moments later, an operative came out of the
room and exclaimed, "Hoy, may nakuha akong baril
sa loob!"26

Petitioner was told by SPO2 Disuanco that "we are

authorized to shoot you because there's a shoot to
kill order against you, so if you are planning do so
something, do it right now."27 He was also told that
there was a standing warrant for his arrest.28
However, he was not shown any proof when he asked
for it.29 Neither was the raiding group armed with a
valid search warrant.30

According to petitioner, the search done in the

boarding house was illegal. The gun seized from him
was duly licensed and covered by necessary permits.
He was, however, unable to present the
documentation relative to the firearm because it was
confiscated by the police. Petitioner further lamented
that when he was incarcerated, he was not allowed to
engage the services of a counsel. Neither was he
allowed to see or talk to his family.31

Petitioner contended that the police had an axe to

grind against him. While still with the Narcotics
Command, he turned down a request of Col. Romulo
Sales to white-wash a drug-related investigation
involving friends of the said police officer. Col. Sales
was likewise subject of a complaint filed with the
Ombudsman by his wife. Col. Sales was later on
appointed as the head of the unit that conducted the
search in his boarding house.32

SPO3 Timbol, Jr. of the Narcotics Command testified

that he issued to petitioner a Memorandum Receipt
dated July 1, 199333 covering the subject firearm
and its ammunition. This was upon the verbal
instruction of Col. Angelito Moreno. SPO3 Timbol
identified his signature34 on the said receipt.35

Adrian Yuson, an occupant of the room adjacent to

where petitioner was arrested, testified that on July
10, 1996, two (2) policemen suddenly entered his
room as he was preparing for school.36 They
grabbed his shoulder and led him out.37 During all
those times, a gun was poked at him.38 He was
asked where petitioner was staying. Fearing for his
life, he pointed to petitioner's room.39

Four (4) policemen then entered the room.40 He

witnessed how they pointed a gun at petitioner, who
was clad only in his underwear.41 He also witnessed
how they forcibly brought petitioner out of his
room.42 While a policeman remained near the faucet
to guard petitioner, three (3) others went back inside
the room.43 They began searching the whole place.
They forcibly opened his locker,44 which yielded the
subject firearm.45

RTC and CA Dispositions

On May 6, 1998, the trial court found petitioner guilty

as charged, disposing as follows:

WHEREFORE, the Court hereby finds the

accused guilty beyond reasonable doubt of
Violation of Section 1 of Presidential Decree
No. 1866 as amended by Republic Act No.
8294 and hereby sentences him to suffer
the penalty of prision correccional in its
maximum period or from 4 years, 2 months
and 1 day as minimum to 6 years as
maximum and to pay the fine in the
amount of Fifteen Thousand Pesos
(P15,000.00).

The gun subject of this case is hereby

ordered confiscated in favor of the
government. Let the same be put in trust in
the hands of the Chief of the PNP.

SO ORDERED.46

Petitioner moved to reconsider47 but his motion was

denied on August 27, 1998.48 He appealed to the
CA.

On May 4, 2004, the appellate court affirmed with

modification the RTC disposition. The fallo of the CA
decision reads:

Verily, the penalty imposed by the trial

court upon the accused-appellant is
modified to 4 years and 2 months as
minimum up to 6 years as maximum.

WHEREFORE, withthe foregoing

MODIFICATION as to the penalty, the
decision appealed from is hereby
AFFIRMED in all other respects.

SO ORDERED.49

His motion for reconsideration50 having been denied

through a Resolution dated August 3, 2004,51
petitioner resorted to the present petition under Rule
45.

Issues

Petitioner raises the following issues for Our

consideration:

I. THE HONORABLE COURT OF APPEALS

COMMITTED SERIOUS ERRORS OF LAW IN
AFFIRMING THE CONVICTION OF
PETITIONER DESPITE THE ABSENCE OF
PROOF BEYOND REASONABLE DOUBT.

II. THE HONORABLE COURT OF APPEALS

COMMITTED SERIOUS ERRORS OF FACT
AND LAW IN SUSTAINING THE LEGALITY
OF THE SEARCH AND THE VALIDITY AND
ADMISSIBILITY OF THE EVIDENCE
OBTAINED THEREFROM DESPITE THE
OVERWHELMING PROOF THAT THE SAME
IS THE FRUIT OF THE POISONOUS TREE.

III. THE HONORABLE COURT OF APPEALS

COMMITTED SERIOUS ERRORS OF LAW IN
NOT UPHOLDING THE REGULARITY AND
VALIDITY SURROUNDING THE ISSUANCE
OF THE MEMORANDUM RECEIPTS (SIC) IN
FAVOR OF PETITIONER WHICH PROVES
HIS INNOCENCE OF THE CRIME CHARGE
(SIC).52 (Underscoring supplied) cralawlibrary

Our Ruling

In illegal possession of firearm and ammunition, the

prosecution has the burden of proving the twin
elements of (1) the existence of the subject firearm
and ammunition, and (2) the fact that the accused
who possessed or owned the same does not have the
corresponding license for it.53

The prosecution was able to discharge its burden.

The existence of the subject firearm and its

ammunition was established through the testimony
of SPO2 Disuanco.54 Defense witness Yuson also
identified the firearm.55 Its existence was likewise
admitted by no less than petitioner himself.56

As for petitioner's lack of authority to possess the

firearm, Deriquito testified that a verification of the
Charter Arms Caliber .38 bearing Serial No. 52315
with the Firearms and Explosives Division at Camp
Crame revealed that the seized pistol was not issued
to petitioner. It was registered in the name of a
certain Raul Palencia Salvatierra of Sampaloc,
Manila.57 As proof, Deriquito presented a certification
signed by Roque, the chief records officer of the
same office.58

The Court on several occasions ruled that either the

testimony of a representative of, or a certification
from, the Philippine National Police (PNP) Firearms
and Explosive Office attesting that a person is not a
licensee of any firearm would suffice to prove beyond
reasonable doubt the second element of possession
of illegal firearms.59 The prosecution more than
complied when it presented both.

The certification is outside the scope of the

hearsay rule.

The general rule is that a witness can testify only to

those facts which he knows of his personal
knowledge; that is, which are derived from his own
perception.60 Otherwise, the testimony is
objectionable for being hearsay.61

On this score, the certification from the Firearms and

Explosives Division is an exception to the hearsay
rule by virtue of Rule 130, Section 44 of the Rules of
Court which provides:

Sec. 44. Entries in official records. - Entries

in official records made in the performance
of his official duty by a public officer of the
Philippines, or by a person in the
performance of a duty specifically enjoined
by law, are prima facieevidence of the facts
therein stated.

It may be true that the contents of said certification

are only prima facie evidence of the facts stated
there. However, the failure of petitioner to present
controverting evidence makes the presumption
unrebutted. Thus, the presumption stands.

Petitioner, however, raises several points which he

says entitles him to no less than an acquittal.

The assessment of credibility of witnesses lies

with the trial court.

First, petitioner says that the seizure of the subject

firearm was invalid. The search was conducted after
his arrest and after he was taken out of the room he
was occupying.62

This contention deserves scant consideration.

Petitioner's version of the manner and place of his

arrest goes into the factual findings made by the trial
court and its calibration of the credibility of
witnesses. However, as aptly put by Justice Ynares-
Santiago in People v. Rivera:63

x x x the manner of assigning values to

declarations of witnesses on the witness
stand is best and most competently
performed by the trial judge who had the
unmatched opportunity to observe the
witnesses and assess their credibility by the
various indicia available but not reflected
on record. The demeanor of the person on
the stand can draw the line between fact
and fancy or evince if the witness is telling
the truth or lying through his teeth. We
have consistently ruled that when the
question arises as to which of the
conflicting versions of the prosecution and
the defense is worthy of belief, the
assessment of the trial courts are generally
viewed as correct and entitled to great
weight. Furthermore, in an appeal, where
the culpability or innocence of the accused
depends on the issue of credibility of
witnesses and the veracity of their
testimonies, findings of the trial court are
given the highest degree of respect if not
finality.64 (Underscoring supplied) cralawlibrary

The trial court found the prosecution version worthy

of credence and belief. We find no compelling reason
not to accept its observation on this score.

Worth noting is the fact that petitioner is a ranking

police officer who not only claims to be highly
decorated,65 but have effected a number of
successful arrests66 as well. Common sense would
dictate that he must necessarily be authorized to
carry a gun. We thus agree with the Office of the
Solicitor General that framing up petitioner would
have been a very risky proposition. Had the arresting
officers really intended to cause the damnation of
petitioner by framing him up, they could have easily
"planted" a more incriminating evidence rather than
a gun. That would have made their nefarious scheme
easier, assuming that there indeed was one.

The pieces of evidence show that petitioner is

not legally authorized to possess the subject
firearm and its five (5) ammunition.

Second, petitioner insists that he is legally

authorized to possess the subject firearm and its
ammunition on the basis of the Memorandum Receipt
issued to him by the PNP Narcotics Command.67

Although petitioner is correct in his submission that

public officers like policemen are accorded
presumption of regularity in the performance of their
official duties,68 it is only a presumption; it may be
overthrown by evidence to the contrary. The
prosecution was able to rebut the presumption when
it proved that the issuance to petitioner of the
Memorandum Receipt was anything but regular.

SPO3 Timbol, Jr. testified that he issued the

Memorandum Receipt to petitioner based on the
verbal instruction of his immediate superior, Col.
Moreno.69 However, a reading of Timbol's testimony
on cross-examination70 would reveal that there was
an unusual facility by which said receipt was issued
to petitioner. Its issuance utterly lacked the usual
necessary bureaucratic constraints. Clearly, it was
issued to petitioner under questionable
circumstances.

Failure to offer an unlicensed firearm as

evidence is not fatal provided there is
competent testimony as to its existence.

Third, petitioner claims that the subject firearm and

ammunition should have been excluded as evidence
because they were not formally offered by the
prosecution71 in violation of Section 34, Rule 132 of
the Rules of Court.72

We note that petitioner contradicted himself when he

argued for the validity of the Memorandum Receipt
and, at the same time, for the exclusion in evidence
of the subject firearm and its ammunition.
Petitioner's act may result to an absurd situation
where the Memorandum Receipt is declared valid,
while the subject firearm and its ammunition which
are supposedly covered by the Memorandum Receipt
are excluded as evidence. That would have made the
Memorandum Receipt useless.

In any case, petitioner's contention has no leg to

stand on.

Contrary to petitioner's claim, the subject firearm73

and its five (5) live ammunition74 were offered in
evidence by the prosecution.75 Even assuming
arguendo that they were not offered, petitioner's
stance must still fail. The existence of an unlicensed
firearm may be established by testimony, even
without its presentation at trial. In People v.
Orehuela,76 the non-presentation of the pistol did
not prevent the conviction of the accused.

The doctrine was affirmed in the recent case of

People v. Malinao.77

As previously stated, the existence of the subject

firearm and its five (5) live ammunition were
established through the testimony of SPO2
Disuanco.78 Yuson also identified said firearm.79
Petitioner even admitted its existence.80

We hasten to add that there may also be conviction

where an unlicensed firearm is presented during trial
but through inadvertence, negligence, or fortuitous
event (for example, if it is lost), it is not offered in
evidence, as long as there is competent testimony as
to its existence.

Penal and civil liabilities

Petitioner was charged with the crime of illegal

possession of firearms and ammunition under the
first paragraph of Section 1 of P.D. No. 1866, as
amended. It provides that "[t]he penalty of reclusion
temporal in its maximum period to reclusion
perpetua shall 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."

P.D. No. 1866, as amended, was the governing law at

the time petitioner committed the offense on July 10,
1996. However, R.A. No. 8294 amended P.D. No.
1866 on July 6, 1997,81 during the pendency of the
case with the trial court. The present law now states:

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. (Underscoring supplied) cralawlibrary

As a general rule, penal laws should not have

retroactive application, lest they acquire the
character of an ex post facto law.82 An exception to
this rule, however, is when the law is advantageous
to the accused. According to Mr. Chief Justice Araullo,
this is "not as a right" of the offender, "but founded
on the very principles on which the right of the State
to punish and the commination of the penalty are
based, and regards it not as an exception based on
political considerations, but as a rule founded on
principles of strict justice."83

Although an additional fine of P15,000.00 is imposed

by R.A. No. 8294, the same is still advantageous to
the accused, considering that the imprisonment is
lowered to prision correccional in its maximum
period84 from reclusion temporalin its maximum
period to reclusion perpetua85 under P.D. No. 1866.

Applying the Indeterminate Sentence Law, prision

correccional maximum which ranges from four (4)
years, two (2) months and one (1) day to six (6)
years, is the prescribed penalty and will form the
maximum term of the indeterminate sentence. The
minimum term shall be one degree lower, which is
prision correccional in its medium period (two [2]
years, four [4] months and one [1] day to four [4]
years and two [2] months).86 Hence, the penalty
imposed by the CA is correct. The penalty of four (4)
years and two (2) months of prision correccional
medium, as minimum term, to six (6) years of prision
correccional maximum, as maximum term, is in
consonance with the Court's ruling in Gonzales v.
Court of Appeals87 and Barredo v. Vinarao.88

As to the subject firearm and its five (5) live

ammunition, their proper disposition should be made
under Article 45 of the Revised Penal Code89 which
provides, among others, that the proceeds and
instruments or tools of the crime shall be confiscated
and forfeited in favor of the government.

WHEREFORE, the Decision of the Court of Appeals

dated May 4, 2004 is AFFIRMED in full.

SO ORDERED.

Endnotes:

1 New Civil Code, Art. 4.

1-a Revised Penal Code, Art. 22 provides: Retroactive effect of penal

laws. - Penal laws shall have a retroactive effect in so far as they

favor the person guilty of a felony, who is not a habitual criminal, as
this term is defined in Rule 5 of Article 62 of this Code, although at
the time of the publication of such laws a final sentence has been
pronounced and the convict is serving the same.

2 Exhibit "D."

3 TSN, November 6, 1996, pp. 4-5, 9.

4 Exhibit "B."

5 TSN, November 6, 1996, pp. 4, 7, 9.

6 Id. at 11.

7 Id. at 3. INP is now Philippine National Police (PNP).

8 Id. at 4.

9 Id. at 5-6.

10 TSN, November 6, 1996, pp. 14-15; TSN, December 11, 1996, p.

10.

11 Exhibit "E."

12 Exhibits "E-1" to "E-5."

13 TSN, November 6, 1996, p. 6.

14 TSN, December 11, 1996, p. 21.

15 Exhibit "C."

PNPFED 12 Jul[y] 1996

CERTIFICATION

TO WHOM IT MAY CONCERN:

This is to certify that [the] Revolver, Charter Arms,

Cal. 38 with serial number 52315 is registered to
RAUL PALENCIA SALVATIERA of Sampaloc, Manila,
acquired thru transfer f[ro]m Wilburn Irwin Lucasan
per index card d[a]t[e]d 10 December 1990.

This certification is issued for whatever legal purpose

it may serve.

FOR THE CHIEF, FED:

EDWIN C[.] ROQUE (Sgd.)

P/Sr. Inspector
Chief, Records Br[.]

16 TSN, December 11, 1996, pp. 19-20.

17 Entitled "An Act Codifying the Laws on Illegal/Unlawful Possession,

Manufacture, Dealing in, Acquisition or Disposition of Firearms,

Ammunition or Explosives or Instruments Used in the Manufacture of
Firearms, Ammunition or Explosives, and Imposing Stiffer Penalties
for Certain Violations Thereof, and for Relevant Purposes." This law
was issued by President Ferdinand E. Marcos on June 29, 1983. See
Zuño, Sr. v. Dizon, A.M. No. RTJ-91-752, June 23, 1993, 223 SCRA
584, 598.

18 Rollo, p. 35.

19 Id. at 38.

20 TSN, February 19, 1997, pp. 19-21.

21 Id. at 21.

22 Id.

23 Id. at 22.

24 Id. at 3, 6.

25 TSN, March 17, 1997, p. 5.

26 Id. at 4.

27 Id. at 10.

28 Id. at 11.

29 Id. at 12.

30 Id. at 14.

31 Id. at 21-22.

32 TSN, March 17, 1997, pp. 22-26.

33 Exhibit "1."

34 Exhibit "1-A."

35 TSN, June 4, 1996, pp. 2-6.

36 TSN, August 4, 1997, p. 7.

37 Id. at 8.

38 Id.

39 Id. at 8-9.

40 Id. at 9.

41 Id. at 10.

42 Id.

43 Id. at 11.

44 Id. at 12.

45 Id.

46 Rollo, p. 44.

47 Exhibit "E."

48 Exhibit "F."

49 Rollo, p. 31.