I. G.R. No.

162808

April 22, 2008

the police officers constitutes an offense that may $e criminally prosecuted under the (&1 2; <hether or not the $are alle ations for ar$itrary detention and rave threats will prosper without alle in the elements of the crimes in the complaint HELD1 No. %he petition lac's merit. R#&io1

FELICIANO GALVANTE, petitioner, vs.HON. ORLANDO C. CASIMIRO, Omb !"m#$ %or &'( Mili&#r), *IENVENIDO C. *LANCAFLOR, Dir(+&or, DENNIS L. GARCIA, Gr#%& I$,("&i-#&io$ #$! .ro"(+ &io$ O%%i+(r, S.O/ RAMIL AVENIDO, .O1 EDDIE DEGRAN, .O1 VALENTINO R0FANO, #$! .O1 FEDERICO *ALOLOT, respondents. FACTS1 ON May 14, 2001, respondent police officers confiscated from petitioner one colt pistol super .38 automatic with ma a!ine and ammunition. "n his affidavit, complainant #alvante narrated how, on May 14, 2001, private respondents aimed their lon firearms at him, ar$itrarily searched his vehicle and put him in detention. %hat on his way to meet retired police &ercival &la!a, four policemen in uniform $loc'ed his way, namely &O1 (omil )venido &N&, &O1 *alentino (ufano, &O1 +ddie ,e ran &N& and &O1 -ederico .alolot, all pointin their lon firearms. %hat while complainant was raisin his arms, /&O4 .en0amin 1onde, 2r. went to his owner type 0eep, conducted a search and confiscated his pistol. 1omplainant thereafter went to the police station. )fter some 3ueries were made concernin non4apprehension of other persons possessin firearms themselves, he was put to 0ail under the order of &olice 1hief (ocacor$a and was released only at 4500 o6cloc' in the afternoon of May 17, 2001 after postin a $ail$ond. .ROCED0RAL HISTOR21 "nformation for "lle al &ossession of -irearms was filed a ainst petitioner #alvante, in (elation to a 1OM+8+1 un $an $efore the (%1 of ) usan del /ur, from which, #alvante countered $y filin a criminal complaint a ainst &olice Officers 1onde, et.al. for )r$itrary ,etention, "lle al /earch and #rave %hreats. 9is char es were dismissed for lac' of pro$a$le cause $efore the #"/ :#raft "nvesti ation;. Office of the ,eputy Om$udsman affirmed the dismissal and denied his M(, hence this &etition for 1ertiorari and Mandamus. /eparately, #alvante filed a separate administrative case $efore the ,"8# a ainst 1onde, et.al. for #rave Misconduct. ISS0ES1 1; <hether or not an ille al =warrantless arrest> conducted $y

%he complaint for 3#rr#$&l("" "(#r+' char es no criminal offense. The conduct of a warrantless search is not a criminal act for it is not penalized under the Revised Penal Code :(&1; or any other special law. <hat the (&1 punishes are only two forms of searches5

Ar&. 124. Search warrants maliciously obtained and abuse in the service of those legally obtained. 5 I$ #!!i&io$ &o &'( li#bili&) #&&#+'i$- &o &'( o%%($!(r %or &'( +ommi""io$ o% #$) o&'(r o%%($"(, &'( p($#l&) o% arresto mayor i$ i&" m#6im m p(rio! &o prision correccional i$ i&" mi$im m p(rio! #$! # %i$( $o& (6+((!i$.1,000.00 p("o" "'#ll b( impo"(! po$ #$) p bli+ o%%i+(r or (mplo)(( 3'o "'#ll pro+ r( # "(#r+' 3#rr#$& 3i&'o & 7 "& +# "(, or, '#,i$- l(-#ll) pro+ r(! &'( "#m(, "'#ll (6+((! 'i" # &'ori&) or "( $$(+(""#r) "(,(ri&) i$ (6(+ &i$- &'( "#m(. Ar&. 180. Searching domicile without witnesses. 5 T'( p($#l&) o% arresto mayor i$ i&" m(!i m #$! m#6im m p(rio!" "'#ll b( impo"(! po$ # p bli+ o%%i+(r or (mplo)(( 3'o, i$ +#"(" 3'(r( # "(#r+' i" prop(r, "'#ll "(#r+' &'( !omi+il(, p#p(r" or o&'(r b(lo$-i$-" o% #$) p(r"o$, i$ &'( #b"($+( o% &'( l#&&(r, #$) m(mb(r o% 'i" %#mil), or i$ &'(ir !(%# l&, 3i&'o & &'( pr("($+( o% &3o 3i&$(""(" r("i!i$- i$ &'( "#m( lo+#li&). 1; (espondents6 dismissal of the criminal complaint for ille al search filed $efore the Om$udsman was proper. &u$lic respondents completely overloo'ed the fact that the criminal complaint was not co ni!a$le $y the Om$udsman as ille al search is not a criminal offense under the (&1.

2; %he complaint for a$itrary detention was li'ewise properly dismissed. %o sustain a criminal char e for ar$itrary detention, it must $e shown that :a; the offender is a pu$lic officer or employee, :$; the offender detained the complainant, and :c; the detention is without le al rounds. %he second element was not alle ed $y petitioner in his )ffidavit41omplaint. )s pointed out $y private respondent 1onde in his 1omment, petitioner himself identified that it was &olice 1hief (ocacor$a who caused his detention. Nowhere in said affidavit did petitioner alle e that private respondents effected his detention, or were in any other way involved in it. %here was, therefore no le al $asis to sustain the criminal char e for ar$itrary detention a ainst private respondents. 3; -inally, on the criminal complaint for rave threats, the same is $ased merely on petitioner6s $are alle ation that private respondents aimed their firearms at him. /uch $are alle ation stands no chance a ainst the well4 entrenched rule that pu$lic officers en0oy a presumption of re ularity in the performance of their official function. %he remedy of petitioner a ainst the warrantless search conducted on his vehicle is civil, under )rticle 32, of the 1ivil 1ode. %o avail of such remedies, petitioner may file a ainst private respondents a complaint for dama es with the re ular courts or an administrative case with the &N&?,"8#, as petitioner did in a separate administrative case, and not a criminal action with the Om$udsman. F#llo1 )ll said, pu$lic respondents did not act with rave a$use of discretion in dismissin the criminal complaint a ainst private respondents. 9HEREFORE, the petition is DENIED. II. VICENTE .. LADLAD ,". EMMAN0EL 2. VELASCO 5 .ASTER G.R. No". 1:20:05:2, 1:20:/5:6 ; 1:<018 = $( 1, 200: FACTS1 %hese are consolidated petitions for the writs of prohi$ition and certiorari to en0oin petitioners6 prosecution for (e$ellion and to set aside the rulin s of the ,O2 and the (%1 of Ma'ati 1ity on the investi ation and prosecution of petitioners6 cases. .eltran &etition5 On -e$ruary 24, 2007, &#M) si ned &residential &roclamation No. 101@ declarin a =/tate of National +mer ency.> -ollowin that, police officers arrested 1rispin .eltran while he was en route to Marilao, .ulacan, and detained him in 1amp 1rame. .eltran was arrested without a warrant and the arrestin officers did not inform .eltran of the crime for which he was arrested.

9e was su$0ected to a first in3uest involvin the crime of incitin to sedition. %his was $ased on a speech .eltran alle edly ave durin a rally in Aue!on 1ity on 24 -e$ruary 2007. "n3uest prosecutor found pro$a$le cause. .)/"/5 0oint affidavit of .eltranBs arrestin officers who claimed to have $een present at the rally. 9e was also su$0ected to a second in3uest involvin the crime of re$ellion conducted $y ,O2 state prosecutors. %he in3uest was $ased on two letters from 1",# eCecutive officer and deputy director. %he letters contained results of 1",#Bs investi ation implicatin .eltran, et al as =leaders and promoters> of an alle ed foiled plot to overthrow the )rroyo overnment. ,O2 state prosecutors found pro$a$le cause. .eltran opposes the second in3uest findin pro$a$le cause that he committed re$ellion and that such in3uest was void. 8adlad and Ma!a petitions5 8adlad, Ma!a, et al were called for a preliminary investi ation for the crime of re$ellion. .asis of the &"5 results of the 1",# investi ation, culled from the .eltran in3uest. ,urin the &", 1",# presented a mas'ed man, later identified as 2aime -uentes, who claimed to $e an eyewitness a ainst petitioners. *elasco, who was the prosecutor, ave copies of the affidavit of -uentes to media mem$ers present durin the proceedin s. 8adlad moved for the inhi$ition of *elasco citin lac' of impartiality and independence, considerin the political milieu under which petitioners were investi ated, the statements that the &resident and the /ecretary of 2ustice made to the media re ardin petitionersB case, and the manner in which the prosecution panel conducted the preliminary investi ation. -urthermore, they contend that the &" was tainted with irre ularities as not pursuant to (ule 112 /ec3. ISS0E1 >I o$l) %o+ "(! o$ &'( *(l&r#$ p(&i&io$, r( r(b(llio$? "s there pro$a$le cause to char e .eltran with re$ellion HELD1 No. (e$ellion under )rticle 134 of the (evised &enal 1ode is committed D .y risin pu$licly and ta'in arms a ainst the #overnment for the purpose of removin from the alle iance to said #overnment or its laws, the territory of the (epu$lic of the &hilippines or any part thereof, or any $ody of land, naval, or other armed forces or deprivin the 1hief +Cecutive or the 8e islature, wholly or partially, of any of their powers or prero atives. %he elements of the offense are5 1. %hat there $e a :a; pu$lic uprisin and :$; ta'in arms a ainst the #overnmentE and 2. %hat the purpose of the uprisin or movement is either D :a; to remove from the alle iance to said #overnment or its laws5

:1; the territory of the &hilippines or any part thereofE or :2; any $ody of land, naval, or other armed forcesE or :$; to deprive the 1hief +Cecutive or 1on ress, wholly or partially, of any of their powers and prero atives. %hus, $y its nature, re$ellion is a crime of the masses or multitudes involvin crowd action done in furtherance of a political end. %he evidence $efore the panel of prosecutors who conducted the in3uest of .eltran for (e$ellion consisted of the affidavits and other documents. %he $ul' of the documents consists of affidavits, some of which were sworn $efore a notary pu$lic, eCecuted $y mem$ers of the military and some civilians. +Ccept for two affidavits, eCecuted $y a certain (uel +scala :+scala;, dated 20 -e$ruary 2007, and (aul 1achuela :1achuela;, dated 23 -e$ruary 2007, none of the affidavits mentions .eltran. "n his affidavit, +scala recounted that in the afternoon of 20 -e$ruary 2007, he saw .eltran and other individuals on $oard a vehicle which entered a chic'en farm in .ucal, &adre #arcia, .atan as and that after the passen ers ali hted, they were met $y another individual. -or his part, 1achuela stated that he was a former mem$er of the 1&& and that :1; he attended the 1&&6s F10th &lenumF in 1GG2 where he saw .eltranE :2; he too' part in criminal activitiesE and :3; the arms he and the other 1&& mem$ers used were purchased partly from contri$utions $y 1on ressional mem$ers, li'e .eltran, who represent party4list roups affiliated with the 1&&. %he alle ations in these affidavits are far from the proof needed to indict .eltran for ta'in part in an armed pu$lic uprisin a ainst the overnment. <hat these documents prove, at $est, is that .eltran was in .ucal, &adre #arcia, .atan as on 20 -e$ruary 2007 and that 14 years earlier, he was present durin the 1GG2 1&& &lenum. None of the affidavits stated that .eltran committed specific acts of promotin , maintainin , or headin a re$ellion as found in the ,O2 (esolution of 2@ -e$ruary 2007. None of the affidavits alle ed that .eltran is a leader of a re$ellion. .eltran6s alle ed presence durin the 1GG2 1&& &lenum does not automatically ma'e him a leader of a re$ellion. "n his 1omment to .eltran6s petition, the /olicitor #eneral points to -uentes6 affidavit, dated 2H -e$ruary 2007, as $asis for the findin of pro$a$le cause a ainst .eltran as -uentes provided details in his statement re ardin meetin s with .eltran and the other petitioners attended in 200H and 2007 in which plans to overthrow violently the )rroyo overnment were alle edly discussed, amon others. 9owever, what the alle ations in -uentes6 affidavit ma'e out is a case for 1onspiracy to 1ommit (e$ellion, punisha$le under )rticle 137 of the (evised &enal 1ode, not (e$ellion under )rticle 134. )ttendance in meetin s to discuss, amon others, plans to $rin down a overnment is a mere preparatory step to commit the acts constitutin (e$ellion under )rticle 134. +ven the prosecution ac'nowled ed this, since the felony char ed in the "nformation a ainst .eltran in the criminal case is 1onspiracy to 1ommit (e$ellion and not (e$ellion. %he "nformation merely alle ed that .eltran, /an 2uan, and others

conspired to form a Ftactical allianceF to commit (e$ellion. %hus, the (%1 Ma'ati erred when it nevertheless found pro$a$le cause to try .eltran for (e$ellion $ased on the evidence $efore it. III. Go$@#l(" , Ab#)# 5 .IAERA #.(. 17400@I)u ust 17, 2007 -acts5

On 2uly 2@, 2003 at around 1500 a.m., more than 300 heavily armed 0unior officers and enlisted men of the )-& J mostly from the elite units of the )rmyBs /cout (an ers and the NavyBs /pecial <arfare #roup J entered the premises of the Oa'wood &remier 8uCury )partments on )yala )venue, Ma'ati 1ity. %hey disarmed the security uards and planted eCplosive devices around the $uildin . "n order to avoid a $loody confrontation, the overnment sent ne otiators to dialo ue with the soldiers. )fter several hours of ne otiation, the overnment panel succeeded in convincin them to lay down their arms and defuse the eCplosives placed around the premises of the Oa'wood )partments. +ventually, they returned to their $arrac's. ) total of 321 soldiers, includin petitioners herein, surrendered to the authorities. Meanwhile, pursuant to )rticle @0 of the )rticles of <ar, #eneral Narciso )$aya, then )-& 1hief of /taff, ordered the arrest and detention of the soldiers involved in the Oa'wood incident and directed the )-& to conduct its own separate investi ation. the char es filed a ainst the petitioners in the military tri$unal are5 :a; violation of )rticle 73 for disrespect toward the &resident, the /ecretary of National ,efense, etc., :$; violation of )rticle 74 for disrespect toward a superior officer, :c; violation of )rticle 7@ for mutiny or sedition, :d; violation of )rticle G7 for conduct un$ecomin an officer and a entleman, and :e; violation of )rticle G@ for conduct pre0udicial to ood order and military discipline. On )u ust H, 2003, the ,O2 filed with the (%1, Ma'ati 1ity an "nformation for coup detat a ainst those soldiers. Of the ori inal 321 accused, only 243 filed with the (%1 an Omni$us Motion prayin that the said trial court assume 0urisdiction over all the char es filed with the military tri$unal. %hey invo'ed :(.).; No. @0HH. o ()@0HH states that5 Mem$ers of the )rmed -orces of the &hilippines and other persons su$0ect to military law, includin mem$ers of the citi!ens )rmed -orces #eo raphical Knits, who commit crimes or offenses penali!ed under the (evised &enal 1ode other special penal laws, or local overnment ordinances re ardless of whether or not civilians are co4accused, victims, or offended parties which may $e

natural or 0uridical persons, shall $e tried $y the proper civil court eCcept when the offense, as determined $efore arrai nment $y the civil court, is service4connected, in which case the offense shall $e tried $y court4martial5 provided, that the &resident of the &hilippines may, in the interest of 0ustice, order or direct at any time $efore arrai nment that any such crimes or offenses $e tried $y the proper civil courts. &etitioners filed with the 2ud e )dvocate #eneralBs Office a motion prayin for the suspension of its proceedin s until after the (%1 shall have resolved their motion to assume 0urisdiction. %he ,O2, after conductin a reinvesti ation, found pro$a$le cause a ainst only 31 of the 321 accused in 1riminal 1ase. )ccordin ly, the prosecution filed with the (%1 an )mended "nformation. %he (%1, on -e$ruary 11, 2004, issued an Order statin that =all char es $efore the court martial a ainst the accusedLare here$y declared $o& "(r,i+(5+o$$(+&(!, $ut rather a$sor$ed and in furtherance of the alle ed crime of coup detat.> %he trial court then proceeded to hear petitionersB applications for $ail. 1olonel 2ulius ). Ma no, in his capacity as officer4 in4char e of the 2)#O, reviewed the findin s of the &re4%rial "nvesti ation &anel. 9e recommended that 2G of the officers involved in the Oa'wood incident, includin petitioners, $e prosecuted $efore a eneral court martial for violation of )rticle G7 :conduct un$ecomin an officer and a entleman; of the )rticles of <ar. &etitioners maintain that since the (%1 has made a determination in its Order of -e$ruary 11, 2004 that the offense for violation of )rticle G7 :conduct un$ecomin an officer and a entleman; of the )rticles of <ar is not service4connected, $ut is a$sor$ed in the crime of coup detat, the military tri$unal cannot compel them to su$mit to its 0urisdiction.

to $e "(r,i+(5+o$$(+&(!, &'($ &'( o%%($!i$- "ol!i(r "'#ll b( &ri(! b) # +o r& m#r&i#l. 8astly, the law states an (6+(p&io$ &o &'( (6+(p&io$, i.e., where the &resident of the &hilippines, in the interest of 0ustice, directs $efore arrai nment that #$) " +' +rim(" or o%%($"(" b( &ri(! b) &'( prop(r +i,il +o r&. %he second para raph of the same provision further i!($&i%i(" &'( B"(r,i+(5+o$$(+&(! +rim(" or o%%($"("C as =limi&(! &o &'o"( !(%i$(! i$ Ar&i+l(" </ &o :0, Ar&i+l(" :2 &o 42, #$! Ar&i+l(" 4< &o 4: > of the )rticles of <ar. *iolations of these specified )rticles are &ri#bl( b) +o r& m#r&i#l. %his delineates the 0urisdiction $etween the civil courts and the court martial over crimes or offenses committed $y military personnel. %he offense for violation of )rticle G7 of the )rticles of <ar is service4connected. %he (%1, in ma'in such declaration, practically amended the law which eCpressly vests in the court martial the 0urisdiction over =service4connected crimes or offenses.> <hat the law has conferred the court should not ta'e away. "t is only the 1onstitution or the law that $estows 0urisdiction on the court, tri$unal, $ody or officer over the su$0ect matter or nature of an action which can do so. NO. %he trial court erred when it 0ustified its rulin $y holdin that the char e of 1onduct Kn$ecomin an Officer and a #entleman is Oa$sor$ed and in furtherance to the alle ed crime of coup detat.B -irstly, the doctrine of Oa$sorption of crimesB is peculiar to criminal law and enerally applies to crimes punished $y the same statute, unli'e here where different statutes are involved. /econdly, the doctrine applies only if the trial court has 0urisdiction over $oth offenses. 9ere, /ection 1 of (.). @0HH deprives civil courts of 0urisdiction over service4 connected offenses, includin )rticle G7 of the )rticles of <ar. %hus, the doctrine of a$sorption of crimes is not applica$le to this case.

IV. LAD=AALAM 5 RE2ES

"ssues5 - <hether or not the court martial may assume 0urisdiction over those who have $een criminally char ed of coup dBMtat $efore the re ular courts. - <hether the doctrine of a$sorption of crimes is applica$le. 9eld5 N+/. /ection 1 of (.). No. @0HH lays down the -($(r#l r l( that mem$ers of the )-& and other persons su$0ect to military law, includin mem$ers of the 1iti!ens )rmed -orces #eo raphical Knits, who commit crimes or offenses penali!ed under the (evised &enal 1ode :li'e coup detat;, other special penal laws, or local ordinances "'#ll b( &ri(! b) &'( prop(r +i,il +o r&. NeCt, it provides the (6+(p&io$ to the eneral rule, i.e., where the civil court, $efore arrai nment, has determined the offense

People vs. Ladjaalam (kim's past digest) Facts:

"n the afternoon of /eptem$er 24, 1GG@, more than thirty :30; policemen proceeded to the house of <alpan 8ad0aalam and his wife to serve the search warrant when they were met $y a volley of unfire comin from the second floor of the said house. %hey saw that it was the appellant who fired the M14 rifle towards them. %he two of the police officers proceeded to the second floor where they earlier saw appellant firin the rifle. )s he noticed their presence, the appellant 0umped from the window to the roof of a nei h$orin

house. 9e was su$se3uently arrested at the $ac' of his house after a $rief chase. /everal firearms and ammunitions were recovered from appellantBs house. )lso found was a pencil case with fifty :H0; folded aluminum foils inside, each containin methamphetamine hydrochloride. ) paraffin test was conducted and the casts ta'en $oth hands of the appellant yielded positive for unpowder nitrates. R(+or!" "'o3 &'#& #pp(ll#$& '#! $o& %il(! #$) #ppli+#&io$ %or li+($"( &o po""("" %ir(#rm #$! #mm $i&io$, $or '#" '( b(($ -i,($ # &'ori&) &o +#rr) %ir(#rms. %he %rial court convicted the accused with the direct assault and multiple counts of attempted homicide, the trial court also convicted him of separate offense of ille al possession of firearms.

officers coupled with the presumption of re ularity of the performance of the officers, such defense cannot $e iven much credence. "n this case, the accused failed to su$stantiate his claims. V. DG.R. No. 1:0<62. = $( 24, 200:.E ANGEL CELINO, SR., ,". CO0RT OF A..EALS, CE*0 CIT2, HON. DELANO F. VILLAR0F 5 AG0ILERA F#+&"1 1. %wo separate informations were filed $efore the (e ional %rial 1ourt of (oCas 1ity char in petitioner )n el 1elino /r. with violation of /ection 2 :a; of 1OM+8+1 (esolution No. 7447 : un $an;, 3 and /ection 1, &ara raph 2 of (epu$lic )ct No. :(.).; 82G4 4 :ille al possession of firearm.; On May 12, 2004 said accused carried outside his residence armalite rifle colt M17 with two :2; lon ma a!ines each loaded with thirty :30; live ammunitions of the same cali$er durin the election period D ,ecem$er 1H, 200H to 2une G, 2004 D without first havin o$tained the proper authority in writin from the 1ommission on +lections. &rior to his arrai nment ipetitioner filed a Motion to Auash contendin that he Fcannot $e prosecuted for ille al possession of firearms . . . if he was also char ed of havin committed another crime of PsicQ violatin the 1omelec un $an under the same set of fa.cts . . . F %he trial court denied the Motion to Auash, the appellate court affirmed the trial court6s denial of the Motion to Auash.

2.

"ssue5 whether or not the accused is lia$le for the separate offense of multiple homicide and ille al possession of firearms.

3.

9eld5 No. )s provided in /ection 1 of () 82G4 =if homicide or murder is committed with the use of an unlicensed firearm such u$li+($"(! %ir(#rm "'#ll b( +o$"i!(r(! #" #--r#,#&i$+ir+ m"&#$+(. %he law : () 82G4; is clear that the accused can $e convicted of simple crime of ille al possession, provided that =no other crime was committed $y the person arrested.> 9ere the accused was convicted of direct assault with multiple attempted homicide for firin an unlicensed M14 rifle at several policemen who were a$out to serve a search warrant, he cannot $e held uilty of the separate offense of ille al possession of firearms. Neither can such unlawful act $e considered to have a ravated the direct assault. %he accused also claims that the items sei!ed from his house were planted and that he was framed up. .ut as held $y the court, the defense of frame up is inherently wea'. )$sent any showin of an improper motive on the part of the police 4.

%he relevant provision of (.). 82G4 reads5 /+1%"ON 1. /ection 1 of &residential ,ecree No. 1877, as amended, is here$y further amended to read as follows5 F/+1%"ON 1. Knlawful Manufacture, /ale, )c3uisition, ,isposition or &ossession of -irearms or )mmunition or "nstruments Ksed or "ntended to $e Ksed in the Manufacture of -irearms or )mmunition. D . . . . F%he penalty of prision mayor in its minimum period and a fine of %hirty thousand pesos :&30,000; shall $e imposed if the firearm is classified as hi h powered firearm which includes those with $ores $i er in diameter than .38 cali$er and G millimeter such as cali$er .40, .41, .44, .4H and also lesser

cali$ered firearms $ut considered powerful such as cali$er .3H@ and cali$er .22 center4fire ma num and other firearms with firin capa$ility of full automatic and $y $urst of two or three5 &rovided, however, %hat no other crime was committed $y the person arrested. F"f homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall $e considered as an a ravatin circumstance. F"f the violation of this /ection is in furtherance of or incident to, or in connection with the crime of re$ellion or insurrection, sedition, or attempted coup d6etat, such violation shall $e a$sor$ed as an element of the crime of re$ellion, or insurrection, sedition, or attempted coup d6etat.

-acts5 )t around 8500 p.m. of )pril 17, 2003, ))) who was a product support representative ,$oarded accusedBs passen er van, a $lac' Mitsu$ishi )dventure at the .ocaue toll ate. /he sat at the front passen er seat as it was the only vacant seat at that time. <hen ))) was the only passen er left in the van, the accused put his ri ht arm over )))6s ri ht shoulder, drew her nearer to him, pointed a un at her chest with his ri ht hand while he continued drivin and proceeded to the %own and 1ountry Motel in /ta Mesa. %he accused pic'ed a ara e room and pushed ))) out of the van. <ith the un pointed at her, accused dra ed her upstairs and pushed her into the $ed. " norin )))6s pleas he pinned her to the $ed stripped her na'ed and raped her. ))) immediately reported the incident and the neCt day, the police was a$le to arrest the accused. %hey recovered from him a .4H cali$er &eter /tahl pistol with serial num$er )414 and five :H; ammunitions with an eCpired license to carry. "n his defense, the accused said that he and ))) had consensual seC and further alle es that ))) was a small time prostitute $ecause she was the one who offered herself to him. "t was $ecause he only paid her 700 instead of 800 pesos that lead ))) to file char es and cry rape. %he trial court %he (%1 found the accused uilty of Ridnappin with (ape and violation of &.,. 1877 as amended $y (.). 82G4 "lle al &ossession of -irearms and )mmunitions $ecause it was shown that his license to carry eCpired on 2anuary 2003. %he 1) affirmed the lower court6s decision with modification. "nstead of Ridnappin with (ape and violation of &, 1877 as amended, 1) ruled that the accused should $e convicted of (ape 3ualified with the use of a deadly weapon. )pplyin 0urisprudence, it is said that if the offender is only to rape the victim and in the process, the latter had to $e ille ally detained, only the crime of rape is committed since ille al detention is deemed a$sor$ed in rape. "t also found that there was no showin that the firearm he carried on )pril 1@, 2003 was not licensed or its license had eCpired, thus petitioner could only $e lia$le for carryin a licensed firearm outside his residence under the last para raph of /ection 1, &.,. 1877, as amended which says5 the penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor. "ssue5 <?N 1) was correct.

"ssue5 whether or not the court should set aside the char e for ille al possession of unlicensed firearm since he was already char ed with 1OM+8+1 (esolution No. 7447 : un $an;. 9eld5 No. %he law is indeed clear. %he accused can $e convicted of ille al possession of firearms, provided no other crime was committed $y the person arrested. %he word FcommittedF ta'en in its ordinary sense, and in li ht of the 1onstitutional presumption of innocence, $(+(""#ril) impli(" # prior !(&(rmi$#&io$ o% - il& b) %i$#l +o$,i+&io$ r(" l&i$- %rom " ++(""% l pro"(+ &io$ or ,ol $&#r) #!mi""io$. <hen the other offense involved is one of those enumerated under (.). 82G4, any information for ille al possession of firearm should $e 3uashed $ecause the ille al possession of firearm would have to $e tried to ether with such other offense, either considered as an a ravatin circumstance in murder or homicide, or a$sor$ed as an element of re$ellion, insurrection, sedition or attempted coup d6etat. 1onversely, when the other offense involved is not one of those enumerated under (.). 82G4, then the separate case for ille al possession of firearm should continue to $e prosecuted. "t is only when there is a final determination of the uilt of an accused in the other crime that the court can set aside the conviction on ille al possession of firearm, otherwise, $oth violations can prosper separately.

VI. SISON 5 ALAMEDA /"/ON *. &+O&8+ :2012;

9eld5 )ccused is uilty of rape, 3ualified $y use of deadly weapon. Knder )rticle 2774. of the (evised &enal 1ode, whenever the crime of rape is committed with the use of a deadly weapon or $y two or more persons, the penalty shall $e

reclusion perpetua to death. %he prosecution was a$le to sufficiently alle e in the "nformation, and esta$lish durin trial, that a un was used in the commission of rape. A" &o &'( +'#r-( o% Ho3(,(r, #" &o p(&i&io$(rG" +o$,i+&io$ %or ill(-#l po""(""io$ o% %ir(#rm", " +' 7 !-m($& m "& b( "(& #"i!(. 9( %i$! &'#& '( +#$ $o lo$-(r b( '(l! li#bl( %or " +' o%%($"( "i$+( #$o&'(r +rim( 3#" +ommi&&(!, i.e., r#p(. "n People v. Ladjaalam, we laid down the correct interpretation of the law and ruled5 C C C A "impl( r(#!i$- &'(r(o% "'o3" &'#& i% #$ $li+($"(! %ir(#rm i" "(! i$ &'( +ommi""io$ o% #$) +rim(, &'(r( +#$ b( $o "(p#r#&( o%%($"( o% "impl( ill(-#l po""(""io$ o% %ir(#rm". 9ence, if the =other crime> is murder or homicide, ille al possession of firearms $ecomes merely an a ravatin circumstance, not a separate offense. /ince direct assault with multiple attempted homicide was committed in this case, appellant can no lon er $e held lia$le for ille al possession of firearms. %he law is clear5 the accused can $e convicted of simple ille al possession of firearms, provided that =no other crime was committed $y the person arrested.> "f the intention of the law in the second para raph were to refer only to homicide and murder, it should have eCpressly said so, as it did in the third para raph. *erily, where the law does not distin uish, neither should we. VII. ESCALANTE V .EO.LE 5 *AHER G.R. No. 142:2: =#$ #r) 4, 2018 RA0L *. ESCALANTE,,"..EO.LE OF THE .HILI..INES and %9+9ONO().8+1OK(%O- )&&+)8/, -O(M+( /&+1")8 %<+N%"+%9 ,"*"/"ON and +"#9%++N%9 ,"*"/"ON, 1OK(% O- )&&+)8/, 1+.K 1"%N, F#+&"1 petitioner, the Municipal Mayor of )lma ro, /amar, was the uest of honor durin the fiesta cele$ration in .aran ay .iason that was held on )pril 3, 1GGH. the emcee called on the petitioner and "na (e$uya to crown the fiesta 3ueen. %he petitioner went to fetch "na (e$uya who was seated to ether with )tty. -elipe Ma lana, 2r. )tty. Ma lana noticed that the petitioner had a firearm tuc'ed on his waist. )fter the crownin ceremony, the petitioner delivered a speech, statin that he had never won at .aran ay .iason in any election. %his cau ht the ire of a roup of supporters of the rival political party who then shouted invectives at the petitioner. /hamed $y the insults hurled at him, the petitioner cut short his speech and, thereafter, went $ac' to his ta$le. 9owever, the moc'in continued. %hereupon, the petitioner, with the loaded firearm in hand, went to the ta$le occupied $y his political rivals and fired a shot upwards, causin the crowd to scamper for safety. %he petitionerBs $ody uards immediately too' hold

of his hand to prevent him from firin another shot. 9e was disarmed after. :, .4Hcali$er pistol; 9is version of %he events was that while he was deliverin his speech a roup of people were shoutin insults at him. he ended his speech and went to the roup to as' them not to distur$ the festivities. %he roup, continued to moc' him, promptin &O3 1onrado Kna0anto draw his firearm from his holster to pacify the unruly crowd. <hen the petitioner saw this, he tried to ta'e the firearm away from &O3 Kna0an and, in the process, a shot was accidentally fired. %hereafter, the petitioner was a$le to ta'e hold of the firearm and, to ether with &O3 Kna0an, went $ac' to his ta$le. 9e then returned the firearm to &O3 Kna0an.thus, sayin that 'i" "#i! po""(""io$ 3#" i$+i!($&#l. two (2 separate !nformation charging him !llegal Possession of "irearms and #mmunitions and violation of the election gun ban under during the $lection Period of the %ay &' ())* $lection. %he two cases were consolidated and 0ointly tried $y the (%1 as the crimes char ed a ainst the petitioner arose from the "#m( i$+i!($&. the petitioner pleaded not uilty to $oth char es. ,urin the pre4trial conference, the petitioner admitted the followin facts5 first, that he was not issued any license to possess any firearmE and second, that )pril 3, 1GGH fell within the election un $an period imposed $y the 1ommission on +lections :1OM+8+1;. +,- rendered a judgment finding the petitioner guilty beyond reasonable doubt of the crimes of violation of election gun ban and illegal possession of firearms and ammunitions. the 1) affirmed in toto and said that i$ #$ i$!i+&m($& %or ill(-#l po""(""io$ o% %ir(#rm" #$! #mm $i&io$" #$! ,iol#&io$ o% (l(+&io$ - $ b#$, &'( pro! +&io$ o% &'( %ir(#rm i&"(l% i" $o& r(I ir(! %or +o$,i+&io$ also, it held that there was no necessity on the part of the prosecution to prove that the petitioner had no license or permit to possess a firearm since the same had already $een admitted $y the petitioner durin the trial. O$ r(+o$"i!(r#&io$ petitioner averred that 1riminal 1ase No. 3824 for ille al possession of firearms and ammunitions should $e dismissed pursuant to the rulin of this 1ourt in ) ote v. 2ud e 8oren!o which declared that an accused is not lia$le for ille al possession of firearm if the firearm was used in the commission of an offense such as a violation of the election un $an. 1) issued a resolution and partly ranted the petitionerBs motion for reconsideration, dismissin the case for ille al possession of firearms and convicted in *iolation of /ection 271, par. :3; of the Omni$us +lection 1ode in modifyin , 1) ruled that under prevailin 0urisprudence there can $e no separate offense of simple ille al possession of firearm if the unlicensed firearm is used in the commission of any crime. 1onsiderin that the petitioner was convicted of violation of election un $an, the 1) held that he can no lon er $e convicted for ille al possession of firearm.

)ppeal to /1 I"" (5 <ON 1) is correct <ON one of the +//+N%")8 +8+M+N%/ O- %9+ O--+N/+ O- *"O8)%"ON O- 1OM+8+1 #KN .)N "/ )./+N% 9+8,5 %he petition is dismissed. 1) is correct and accused already admitted the facts 1. filed under rule 7H certiorari dismissed since "t should $e 4H which period has already lapsed. 2. "n merits , %he petitioner claimed that the 1) ravely a$used its discretion when it affirmed his conviction for violation of election un $an considerin that the fact of his possession of the firearm was not sufficiently esta$lished. 9e averred that the firearm, alle ed to $e possessed $y him durin the incident, was in fact in the possession of &O3 Kna0an and that it was only when he wrestled the firearm away from the latter that he was a$le to possess it. 9is possession of the firearm is merely incidental and would not suffice to convict him for violation of election un $an. the petitioner was in possession of a firearm with live ammunition outside of his residence within the period of the election un $an imposed $y the 1OM+8+1 sans authority therefor is a findin of fact $y the (%1 and the 1) which cannot $e distur$ed $y this 1ourt in this ori inal action for certiorari. thus such findin is $indin . 3. )s to penalties, lower courts erred in imposin the applica$le penalty a ainst the petitioner. -indin the petitioner uilty of the offense of violation of election un $an, the (%1 imposed upon him the strai ht penalty of one :1; year imprisonment. %he penalty imposed $y the (%1 was affirmed $y the 1). /ection 274 of .& 881, in part, reads5 /ec. 274. &enalties. J )ny person found uilty of any election offense under this 1ode shall $e punished with imprisonment of not less than one year $ut not more than siC years and shall not $e su$0ect to pro$ation. "n addition, the uilty party shall $e sentenced to suffer dis3ualification to hold pu$lic office and deprivation of the ri ht of suffra e. "f he is a forei ner, he shall $e sentenced to deportation which shall $e enforced after the prison term has $een served. C C )pplyin the "ndeterminate /entence 8aw, the imposa$le penalty for violation of the election un $an should have a maCimum period, which shall not eCceed siC :7; years, and a minimum period which shall not $e less than one :1; year. )ccordin ly, the (%1 and the 1) erred in imposin a strai ht penalty of one :1; year imprisonment a ainst the petitioner. .u since "t was already final $ecause of improper remedy the penalty 0ud ed $y the 1) stays. )dditional5 SSSS"n cases involvin ille al possession of firearm, the re3uisite elements are5 :a; the eCistence of the su$0ect firearm and

:$; the fact that the accused who owned or possessed the firearm does not have the correspondin license or permit to possess. :#.(. No. 11427@, ,ecem$er 1@, 1GGG, &+O&8+ vs. ,O("MON;