[G.R. No. 95523.

August 18, 1997]

REYNALDO GONZALES y RIVERA, petitioner, vs. HONORABLE COURT OF

APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

DECISION
ROMERO, J.:

The new law, Republic Act No. 8294,[1] approved barely two months ago (June 6,
1997) which has lowered the penalty for illegal possession of firearms finds application
in instant case to favor the accused so as to immediately release him from jail where he
has already served nine (9) years, nine (9) months and twenty-three (23) days, which is
well beyond the maximum penalty now imposed for his offense. Whereas prior to the
passage of this law, the crime of simple illegal possession of firearms was penalized
with reclusion temporal in its maximum period to reclusion perpetua,[2] after its
enactment, the penalty has been reduced to prision correccional in its maximum period
and a fine of not less than Fifteen Thousand Pesos (P15,000.00).[3]
Being favorable to the accused, this newly-enacted law constitutes an exception to
the fundamental doctrine that laws should be applied prospectively. Further applying
the Indeterminate Sentence Law, petitioner should be penalized with four (4) years, two
(2) months and one (1) day as minimum, to six (6) years as maximum. Petitioner,
therefore, holds the distinction of being the first beneficiary of this reduced penalty to
favor him with its retroactive application.
The following recital of facts constitutes the backdrop for the application of the new
law.
Two separate informations were filed against petitioner Reynaldo Gonzales y Rivera
involving the crimes of attempted homicide and violation of Presidential Decree No.
1866.
The Information for Attempted Homicide reads as follows:

The undersigned Provincial Fiscal accuses Reynaldo Gonzales y Rivera of the crime of
attempted homicide, penalized under the provisions of Article 249 in connection with
Article 51 of the Revised Penal Code, committed as follows:

That on or about the 20th day of May, 1984, in the municipality of San Ildefonso,
province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, armed with a gun (Revolver, Caliber .22, Paltik) and with
intent to kill one Jaime Verde, did then and there wilfully, unlawfully and feloniously
commenced the commission of homicide directly by overt acts, by then and there
shooting with the said gun the said Jaime Verde, and if the said accused did not
accomplish his purpose, that is, to kill the said Jaime Verde, it was not because of his
spontaneous desistance, but the shot missed him and instead hit the ground.

Contrary to law.

The Information for violation of P.D. No. 1866 reads:

The undersigned Provincial Fiscal accuses Reynaldo Gonzales y Rivera of the crime of
illegal possession of firearm, penalized under Presidential Decree No. 1866, committed
as follows:

That on or about the 20th day of May, 1984, in the municipality of San Ildefonso,
province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court,

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the said accused Reynaldo Gonzales y Rivera, did then and there wilfully, unlawfully,
and feloniously have in his possession and control one (1) Revolver, Caliber .22 (Paltik,
without first obtaining the proper license or authority therefor).

Contrary to law.

A plea of not guilty having been entered, trial on the merits ensued.
The case for the prosecution is as follows:
On May 20, 1984, Jaime, Dionisio, and Zenaida all surnamed Verde were in front
of their house when, at about six oclock in the evening, petitioner Reynaldo Gonzales
and a certain Bening Paguia arrived in the premises. Without any provocation,
petitioner started to hurl invectives at Zenaida and pushed her. Surprised at the
unprovoked attack, Jaime tried to restrain the petitioner but instead of allowing himself
to be subdued, the latter turned on the former. Pulling out his gun, he fired the same
at Jaime but missed his mark. The incident was thereafter reported to the police
authorities which conducted a paraffin test that showed that petitioners right hand was
positive for gunpowder residue.
On the other hand, the version of the defense was as follows:
Petitioner testified that on the said date and time, he was with his barrio mates
when suddenly, a commotion attracted their attention. They saw a group of persons
chasing an unidentified person who was running towards their direction with a gun in
hand while the mob was shouting Harangin. During the chase, the unidentified person
accidentally fell and dropped the gun he was holding which petitioner then grabbed.
The fleeing person hastily boarded a passing bus. It was at this point that the
Verdes, who turned out to be the persons giving chase, demanded the gun from the
petitioner who, however, refused to surrender the same, as a result of which, a scuffle
ensued during which the gun accidentally went off without hitting anybody.
After trial, the court a quo acquitted the petitioner of the offense of attempted
homicide but found him guilty of the offense of illegal possession of firearm, the
dispositive portion of which reads:[4]

WHEREFORE, premises considered, for failure of the prosecution to prove the guilt of
Reynaldo Gonzales beyond reasonable doubt of the charge for Attempted Homicide, he
is hereby acquitted of the crime charged.

With respect to the charge of Illegal Possession of Firearms, the Court finds the
accused guilty beyond reasonable doubt and hereby sentences him to a penalty
ranging from 17 years, 4 months, 1 day to 18 years, 8 months of Reclusion Temporal,
without pronouncement as to costs.

Upon appeal to the Court of Appeals, the petitioner asserted that the trial court
erred in not giving credence to the defenses narration of the incident and his guilt has
not been proven beyond reasonable doubt. This argument did not persuade the
appellate court as it held that:[5]

Indeed, as correctly found by the trial court, the appellant did not grab the revolver
(paltik) in question (Exhibit A) from the unidentified person that he said. He drew it
from his pocket and intentionally fired it at Jaime Verde but missed him. He was,
therefore, in possession of it. And since it was a paltik for which no license to possess
may be issued (People vs. Fajardo, 17 SCRA 494), he is guilty of illegal possession of
firearm under Presidential Decree No. 1866. Accordingly, the trial court did not
commit any error in finding him guilty as charged.

In the instant petition, petitioner assigns the following errors to the trial court:

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 1. There is in this case material and substantial conflict between the version of
the prosecution and that of the defense that would lead a reasonable mind
to believe the improbability of the version of the prosecution.
2. Respondent Court of Appeals committed a grave and serious error of law in
not finding/holding that the prosecution miserably failed to establish the
motive that would support the version of the prosecution.
3. Petitioner was not aware of any preliminary investigation that would create
any inference adverse to his innocence.
4. The prosecution in this case failed to prove the guilt of the petitioner beyond
reasonable doubt. Hence, the latter is entitled to acquittal.
We affirm the findings of the trial court and the Court of Appeals.
The main thesis of petitioners defense is that he inadvertently picked up the gun
accidentally dropped by an unidentified person who was being chased by the
Verdes.Thus, he cannot be convicted for illegal possession of firearm.
Completely contradicting petitioners version, we quote with approval the trial courts
finding:[6]

The testimony that the gun came from the unarmed (should be unidentified) person
who fell in front of him while being chased is again hard to believe. The natural
reaction of a person being chased in a hostile place is to remove hindrances along his
way. If he had a gun, as the accused would want the court to believe, he could have
used it against all persons who would block his way since there were shouts harangin,
harangin. On the other hand, the actuation of the accused is contrary to common
observation and experience. No person in his right mind would approach a person
holding a gun being chased and there were shouts harangin, harangin.

In addition, petitioners narration is not in conformity with human experience and

reactions. We likewise note the incredible assertion of the petitioner that the
unidentified person, after tripping and dropping the gun, was able to board a slow
moving bus without even attempting to retrieve his weapon. Such a hollow tale hardly
commends itself to our mind.
Also, petitioner bewails the fact that no preliminary investigation was
conducted. While the right to preliminary investigation is one that is statutorily granted
and not mandated by the Constitution, still it is a component part of due process in
criminal justice[7] that may not be treated lightly, let alone ignored. It has been
consistently held, however, that its absence does not impair the validity of the criminal
information or render it defective. In any case, dismissal of the case is not the
remedy.[8] It is incumbent on the trial court to hold in abeyance the proceedings upon
such information and to remand the case to the fiscal to conduct a preliminary
investigation if the accused actually makes out a case justifying the same.[9]
Conversely, it is a well-settled rule that the right to a preliminary investigation may
be waived by the failure to invoke it prior to or at least at the time of the accuseds
plea.[10]Thus, when the petitioner entered a plea to the charge,[11] he is deemed to have
waived the right to preliminary investigation.[12]
Having set aside the procedural aspect of this petition, we now proceed to determine
whether the petitioner is indeed guilty of the offense of illegal possession of firearm.
In cases involving illegal possession of firearm, there are certain well-established
principles, namely: (a) the existence of the subject firearm and (b) the fact that the
accused who owned or possessed the firearm does not have the corresponding license
or permit to possess.[13] The first requisite is beyond dispute as the subject firearm was
recovered, identified and offered in evidence during trial.[14] With respect to the second
requisite, the same was undisputably proven by the prosecution. The unvarying rule is
that ownership is not an essential element of illegal possession of firearms and
ammunition. What the law requires is merely possession which includes, not only actual

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physical possession, but also constructive possession or the subjection of the thing to
ones control and management.[15]
In the instant petition, there is no doubt that the petitioner is indeed guilty of having
intentionally possessed an unlicensed firearm. The testimony of the petitioner that he
came into possession of the firearm only after a scuffle, is a lame defense which cannot
overcome the solid evidence presented by the prosecution proving his guilt beyond
reasonable doubt. On this score, we note that a prosecution witness testified that
petitioner pulled the gun from his waist and fired a shot aimed at Jaime Verdes foot.[16]
Thus, we have no reservations in affirming petitioners conviction since we find no
compelling reason to depart from the factual findings of both the trial court and the
respondent appellate court which are, as a rule, accorded great respect and finality.[17]
As regards the penalty imposed by the trial court and affirmed by the appellate court
(17 years, 4 months, 1 day to 18 years, 8 months of reclusion temporal), we reduce the
same in view of the passage of R.A. No. 8294 wherein the penalty for simple illegal
possession of firearms has been lowered. Since it is an elementary rule in criminal
jurisprudence that penal laws shall be given retroactive effect when favorable to the
accused,[18] we are now mandated to apply the new law in determining the proper
penalty to be imposed on the petitioner.
While prior to the passage of R.A. No. 8294, the crime of simple illegal possession of
firearm was penalized with reclusion temporal in its maximum period to reclusion
perpetua, after its enactment, the penalty was reduced to prision correccional in its
maximum period and a fine of not less than Fifteen Thousand Pesos (P15,000.00).
Accordingly, applying the Indeterminate Sentence Law, the principal penalty for the
offense of simple illegal possession of firearm is four (4) years and two (2) months as
minimum, to six (6) years, as maximum[19] and a fine of P15,000.00. Consistent with the
doctrine that an appeal in a criminal case throws the whole case open for review, the
appellate court may, applying the new law, additionally impose a fine, which if unpaid,
will subject the convict to subsidiary imprisonment, pursuant to Art. 39 of the Revised
Penal Code.[20]
WHEREFORE, the decision of the Court of Appeals sustaining petitioners conviction
by the lower court of the crime of simple illegal possession of firearm is AFFIRMED, with
the MODIFICATION that the penalty is reduced to four (4) years and two (2) months, as
minimum, to six (6) years, as maximum.
Since the petitioner has already served nine (9) years, nine (9) months and twenty-
three (23) days, which is well beyond the maximum principal penalty imposed for his
offense, as well as the subsidiary penalty for the unpaid fine, he is hereby ordered
RELEASED immediately, unless he is being held for some other lawful cause.
SO ORDERED.
Regalado, (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.