SECOND DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 191366 Present: CARPIO, J.,Chairperson, NACHURA, PERALTA, ABAD, and MENDOZA, JJ.

- versus -

ARNOLD MARTINEZ Y ANGELES, EDGAR DIZON Y FERRER, REZIN MARTINEZ Y CAROLINO, and RAFAEL GONZALES Y CUNANAN, Accused-Appellants.

Promulgated: December 13, 2010

X ---------------------------------------------------------------------------------------X

DECISION MENDOZA, J.: This is an appeal from the August 7, 2009 Decision of the Court of Appeals (CA), in CA-G.R. HC[2] NO. 03269, which affirmed the February 13, 2008 Decision of the Regional Trial Court, Branch 41, Dagupan City (RTC), in Criminal Case No. 2006-0525-D, finding the accused guilty of violating Section 13, in relation to Section 11, Article II of Republic Act No. 9165 for Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings. The Facts The Information indicting the accused reads: That on or about the 2 day of September 2006, in the City of Dagupan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, ARNOLD MARTINEZ y ANGELES, EDGAR DIZON y FERRER, REZIN MARTINEZ y CAROLINO, ROLAND DORIA y DIAZ and RAFAEL GONZALES y CUNANAN, without authority of law, confederating together, acting jointly and helping one another, did then and there wilfully, unlawfully and criminally, sniff and possess dangerous drugs (shabu residues) contained in empty plastic sachets and rolled aluminum foil, during a party, or at a social gathering or meeting, or in the proximate company of at least two (2) person[s]. Contrary to Section 13, Article II, R.A. 9165. Version of the Prosecution
[3] nd [1]

As culled from the testimonies of prosecution witnesses, Police Officer 1 Bernard Azardon (PO1 Azardon), one of the apprehending officers, and Police Inspector Lady Ellen Maranion (P/Insp. Maranion), the forensic chemical officer, it appears that on September 2, 2006, at around 12:45 oclock in the afternoon, PO1 Azardon was on duty at the Police Community Precinct II along Arellano Street, Dagupan City, when a concerned citizen entered the precinct and reported that a pot session was going on in the house of accused Rafael Gonzales (Gonzales) in Trinidad Subdivision, Dagupan City. Upon receipt of the report, PO1 Azardon, PO1 Alejandro Dela Cruz (PO1 Dela Cruz), and members of the Special Weapons and Tactics (SWAT) team hied to Trinidad Subdivision, Dagupan City. Upon inquiry from people in the area, the house of Gonzales was located. As the police officers entered the gate of the house, they saw accused Orlando Doria (Doria) coming out of the side door and immediately arrested him. Inside the house, they saw accused Gonzales, Arnold Martinez (A. Martinez), Edgar Dizon (Dizon), and Rezin Martinez (R. Martinez) in a room. The four were surprised by the presence of the police. In front of them were open plastic sachets (containing shabu residue), pieces of rolled used aluminum foil and pieces of used aluminum foil. The accused were arrested and brought to the police precinct. The items found in the room were seized and turned over to the Pangasinan Provincial Police Crime Laboratory Officer, P/Insp. Maranion. The latter conducted a laboratory examination on the seized items and all 115 plastic sachets, 11 pieces of rolled used aluminum foil, and 27 of the 49 pieces of used aluminum foil tested positive for methamphetamine hydrochloride. The accused were subjected to a drug test and, except for Doria, they were found to be positive for methamphetamine hydrochloride. Version of the Defense The defense, through its witnesses, accused A. Martinez, Dizon, and R. Martinez, claimed that in the morning of September 2, 2006, the three of them were along Arellano Street in Trinidad Subdivision, Dagupan City, to meet with a certain Apper who bumped the passenger jeep of R. Martinez and who was to give the materials for the painting of said jeep. As they were going around the subdivision looking for Apper, they saw Gonzales in front of his house and asked him if he noticed a person pass by. While they were talking, Doria arrived. It was then that five to seven policemen emerged and apprehended them. They were handcuffed and brought to the police station in Perez, Dagupan City, where they were incarcerated and charged with sniffing shabu. The Ruling of the RTC The case against Doria was dismissed on a demurrer to evidence. On February 13, 2008, the RTC rendered its decision, the dispositve portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered finding accused ARNOLD MARTINEZ y Angeles, EDGAR DIZON y Ferrer, REZIN MARTINEZ y Carolino, and RAFAEL GONZALES y Cunanan GUILTY beyond reasonable doubt of the crime of Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings defined and penalized under Section 13 in relation to Section 11, Article II of Republic Act 9165, and each of them is sentenced to suffer the penalty of life imprisonment and to pay the fine in the amount of P500,000.00, and to pay the cost of suit. The subject items are hereby forfeited in favor of the government and to be disposed of in accordance with the law.

SO ORDERED.

[4]

The RTC was of the view that the positive testimony of prosecution witness PO1 Azardon, without any showing of ill-motive on his part, prevailed over the defenses of denial and alibi put up by the accused. The accused were held to have been in constructive possession of the subject items. A conspiracy was also found present as there was a common purpose to possess the dangerous drug.

The Ruling of the CA The CA ruled that there was sufficient evidence to support the findings of the RTC as to the constructive possession of the dangerous drugs by the accused. It further held that although the procedure regarding the custody and disposition of evidence prescribed by Section 21 of R.A. No. 9165 was not strictly complied with, the integrity and evidentiary value of the evidence were nonetheless safeguarded. The CA was of the view that the presumption of regularity in the performance of official duty was not sufficiently controverted by the accused. Not in conformity, the accused now interposes this appeal before this Court praying for the reversal of the subject decision, presenting the following Assignment of Errors

For accused Arnold Martinez, Edgar Dizon and Rezin Martinez 1. The lower court erred in finding the accused-appellants to be having a pot session at the time of their arrest; The lower court erred in not seeing through the antics of the police to plant the shabu paraphernalia to justify the arrest of the accused-appellants without warrant; The lower court erred in not finding that the corpus delicti has not been sufficiently established; The lower court erred in not finding the uncorroborated testimony of PO1 Azardon insufficient to convict the accused-appellants of the crime charged; The lower court erred in not acquitting the accused-appellants.

2.

3.

4.

5.

For accused Rafael Gonzales I THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT DESPITE THE PROSECUTIONS FAILURE TO OVERTHROW THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE. II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT DESPITE THE PROSECUTIONS FAILURE TO ESTABLISH THE CHAIN OF CUSTODY OF THE ALLEGED CONFISCATED DRUG. After an assiduous assessment of the evidentiary records, the Court finds that the prosecution failed to prove the guilt of the accused. The principal reasons are 1] that the evidence against the accused are inadmissible; and 2] that granting the same to be admissible, the chain of custody has not been duly established. Illegal Arrest, Search and Seizure Indeed, the accused is estopped from assailing the legality of his arrest if he fails to raise such [5] issue before arraignment. However, this waiver is limited only to the arrest. The legality of an arrest affects only the jurisdiction of the court over the person of the accused. A waiver of an illegal warrantless arrest does not carry with it a waiver of the inadmissibility of evidence seized during the illegal warrantless [6] arrest. Although the admissibility of the evidence was not raised as in issue by the accused, it has been held that this Court has the power to correct any error, even if unassigned, if such is necessary in arriving [7] [8] at a just decision, especially when the transcendental matter of life and liberty is at stake. While it is true that rules of procedure are intended to promote rather than frustrate the ends of justice, they nevertheless must not be met at the expense of substantial justice. Time and again, this Court has reiterated the doctrine that the rules of procedure are mere tools intended to facilitate the attainment of [9] justice, rather than frustrate it. Technicalities should never be used to defeat substantive rights. Thus, despite the procedural lapses of the accused, this Court shall rule on the admissibility of the evidence in the case at bench. The clear infringement of the accuseds right to be protected against unreasonable searches and seizures cannot be ignored. The State cannot, in a manner contrary to its constitutional guarantee, intrude into the persons of [10] its citizens as well as into their houses, papers and effects. Sec. 2, Art. III, of the 1987 Constitution provides: Section 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. This constitutional guarantee, however, is not a blanket prohibition against all searches and seizures without warrant. Arrests and seizures in the following instances are allowed even in the absence [11] of a warrant (i) warrantless search incidental to a lawful arrest; (ii) search of evidence in "plain view;" (iii) search of a moving vehicle; (iv) consented warrantless search; (v) customs search; (vi) stop and frisk; [12] and (vii) exigent and emergency circumstances. This case would appear to fall under either a warrantless search incidental to a lawful arrest or a plain view search, both of which require a lawful arrest in order to be considered valid exceptions to the constitutional guarantee. Rule 113 of the Revised Rules of Criminal Procedure provides for the circumstances under which a warrantless arrest is lawful. Thus:

Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. A review of the facts reveal that the arrest of the accused was illegal and the subject items were confiscated as an incident thereof. According to the testimony of PO1 Azardon and his Joint [13] Affidavit with PO1 Dela Cruz, they proceeded to, and entered, the house of accused Gonzales based solely on the report of a concerned citizen that a pot session was going on in said house, to wit: Q: A: Q: A: Q: A: Q: I go back to the information referred to you by the informant, did he not tell you how many persons were actually conducting the pot session? Yes, sir. When you went to the place of Rafael Gonzales, of course you were not armed with a search warrant, correct? None, sir. Before the information was given to you by your alleged informant, you did not know personally Rafael Gonzales? I have not met [him] yet but I heard his name, sir. When this informant told you that he was told that there was [an] ongoing pot session in the house of Rafael Gonzales, was this report to you placed in the police blotter before you proceeded to the house of Rafael Gonzales? I think it was no longer recorded, sir. In other words, you did not even bother to get the personal data or identity of the person who told you that he was allegedly informed that there was an ongoing pot session in the house of Rafael Gonzales? What I know is that he is a jeepney driver of a downtown jeepney but he does not want to be identified because he was afraid, sir. And likewise, he did not inform you who told him that there was an ongoing pot session in the house of Rafael Gonzales? No more, sir. But upon receiving such report from that jeepney driver you immediately formed a group and went to the place of Rafael Gonzales? Yes, sir.

A: Q:

A:

Q: A: Q: A:

xxx Q: A: Q: When you were at the open gate of the premises of Rafael Gonzales, you could not see what is happening inside the house of Rafael Gonzales? Yes, sir. You did not also see the alleged paraphernalia as well as the plastic sachet of shabu on the table while you were outside the premises of the property of Rafael Gonzales? xxx Q: Before they entered the premises they could not see the paraphernalia?

COURT: A: Q:

Answer.

Of course because they were inside the room, how could we see them, sir. But still you entered the premises, only because a certain person who told you that he was informed by another person that there was an ongoing pot session going on inside the house of Rafael Gonzales? Yes, sir. And that is the only reason why you barged in inside the house of Rafael Gonzales and you arrested the persons you saw? [14] Yes, sir.

A: Q: A:

Paragraph (c) of Rule 113 is clearly inapplicable to this case. Paragraphs (a) and (b), on the other hand, may be applicable and both require probable cause to be present in order for a warrantless arrest to be valid. Probable cause has been held to signify a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious mans belief that the person [15] accused is guilty of the offense with which he is charged. Although this Court has ruled in several dangerous drugs cases that tipped information is [17] sufficient probable cause to effect a warrantless search, such rulings cannot be applied in the case at bench because said cases involve either a buy-bust operation or drugs in transit, basically, circumstances other than the sole tip of an informer as basis for the arrest. None of these drug cases involve police officers entering a house without warrant to effect arrest and seizure based solely on an informers [18] tip. The case of People v. Bolasa is informative on this matter. In People v. Bolasa, an anonymous caller tipped off the police that a man and a woman were repacking prohibited drugs at a certain house. The police immediately proceeded to the house of the suspects. They walked towards the house accompanied by their informer. When they reached the house, they peeped inside through a small window and saw a man and woman repacking marijuana. They then entered the house, introduced themselves as police officers, confiscated the drug paraphernalia, and arrested the suspects. This Court ruled: The manner by which accused-appellants were apprehended does not fall under any of the above-enumerated categories. Perforce, their arrest is illegal. First, the arresting officers had no personal knowledge that at the time of their arrest, accusedappellants had just committed, were committing, or were about to commit a crime. Second, the arresting officers had no personal knowledge that a crime was committed
[16]

nor did they have any reasonable ground to believe that accused-appellants committed it. Third, accused-appellants were not prisoners who have escaped from a penal establishment. Neither can it be said that the objects were seized in plain view. First, there was no valid intrusion. As already discussed, accused-appellants were illegally arrested. Second, the evidence, i.e., the tea bags later on found to contain marijuana, was not inadvertently discovered. The police officers intentionally peeped first through the window before they saw and ascertained the activities of accused-appellants inside the room. In like manner, the search cannot be categorized as a search of a moving vehicle, a consented warrantless search, a customs search, or a stop and frisk; it cannot even fall under exigent and emergency circumstances, for the evidence at hand is bereft of any such showing. On the contrary, it indicates that the apprehending officers should have conducted first a surveillance considering that the identities and address of the suspected culprits were already ascertained. After conducting the surveillance and determining the existence of probable cause for arresting accused-appellants, they should have secured a search warrant prior to effecting a valid arrest and seizure. The arrest being illegal ab initio, the accompanying search was likewise illegal. Every evidence thus obtained during the illegal search cannot be used against accused-appellants; hence, their acquittal must [19] follow in faithful obeisance to the fundamental law.

It has been held that personal knowledge of facts in arrests without warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when the suspicion, that the person to be arrested is probably guilty of committing an offense, is based on actual facts, that is, supported by circumstances sufficiently strong in [20] themselves to create the probable cause of guilt of the person to be arrested. As to paragraph (a) of Section 5 of Rule 113, the arresting officers had no personal knowledge that at the time of the arrest, accused had just committed, were committing, or were about to commit a crime, as they had no probable cause to enter the house of accused Rafael Gonzales in order to arrest them. As to paragraph (b), the arresting officers had no personal knowledge of facts and circumstances that would lead them to believe that the accused had just committed an offense. As admitted in the testimony of PO1 Azardon, the tip originated from a concerned citizen who himself had no personal knowledge of the information that was reported to the police: Q: A: Q: A: Mr. Witness, you claimed that the reason for apprehending all the accused was based on a tip-off by an informant? Yes, sir. What exactly [did] that informant tell you? He told us that somebody told him that there was an ongoing pot session in the house of one of the accused Rafael Gonzales, sir. You mean to say that it was not the informant himself to whom the information originated but from somebody else? That was what he told me, sir. Because of that you proceeded to where the alleged pot session was going on? [No Answer] Did you[r] informant particularly pinpointed [sic] to where the alleged pot session was going on?

Q: A: Q:

Q:

A: Q:

No more because he did not go with us, sir. So you merely relied on what he said that something or a pot session was going on somewhere in Arellano but you dont know the exact place where the pot session was going on? Yes, sir. And your informant has no personal knowledge as to the veracity of the alleged pot session because he claimed that he derived that information from somebody else? This is what he told us that somebody told him that there was an ongoing pot session, sir. Despite of [sic] that information you proceeded to where? Trinidad Subdivision, sir. xxx

A: Q:

A:

Q: A:

Q: A: Q: A:

Mr. Witness, did your informant named [sic] those included in the alleged pot session? No, sir. That was, because your informant dont [sic] know physically what was really happening there? He was told by another person that there was an ongoing pot session there, [21] sir. [Emphasis supplied]

Neither can it be said that the subject items were seized in plain view. The elements of plainview 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" [22] justified mere seizure of evidence without further search. The evidence was not inadvertently discovered as the police officers intentionally entered the house with no prior surveillance or investigation before they discovered the accused with the subject items. If the prior peeking of the police officers in Bolasa was held to be insufficient to constitute plain view, then more so should the warrantless search in this case be struck down. Neither can the search be considered as a search of a moving vehicle, a consented warrantless search, a customs search, a stop and frisk, or one under exigent and emergency circumstances. The apprehending officers should have first conducted a surveillance considering that the identity and address of one of the accused were already ascertained. After conducting the surveillance and determining the existence of probable cause, then a search warrant should have been secured prior to effecting arrest and seizure. The arrest being illegal, the ensuing search as a result thereof is likewise illegal. Evidence procured on the occasion of an unreasonable search and seizure is deemed tainted for [23] being the proverbial fruit of a poisonous tree and should be excluded. The subject items seized during the illegal arrest are thus inadmissible. The drug, being the very corpus delicti of the crime of illegal possession of dangerous drugs, its inadmissibility thus precludes conviction, and calls for the acquittal of the accused. As has been noted previously by this Court, some lawmen, prosecutors and judges have glossed over illegal searches and seizures in cases where law enforcers are able to present the alleged evidence of the crime, regardless of the methods by which they were obtained. This attitude tramples on

constitutionally-guaranteed rights in the name of law enforcement. It is ironic that such enforcement of the law fosters the breakdown of our system of justice and the eventual denigration of society. While this Court appreciates and encourages the efforts of law enforcers to uphold the law and to preserve the peace and security of society, we nevertheless admonish them to act with deliberate care and within the [24] parameters set by the Constitution and the law.

Chain of Custody Even granting that the seized items are admissible as evidence, the acquittal of the accused would still be in order for failure of the apprehending officers to comply with the chain of custody requirement in dangerous drugs cases. The accused contend that the identity of the seized drug was not established with moral certainty as the chain of custody appears to be questionable, the authorities having failed to comply with Sections 21 and 86 of R.A. No. 9165, and Dangerous Drug Board (DDB) Resolution No. 03, Series of 1979, as amended by Board Regulation No. 2, Series of 1990. They argue that there was no prior coordination with the Philippine Drug Enforcement Agency (PDEA), no inventory of the confiscated items conducted at the crime scene, no photograph of the items taken, no compliance with the rule requiring the accused to sign the inventory and to give them copies thereof, and no showing of how the items were handled from the time of confiscation up to the time of submission to the crime laboratory for testing. Therefore, thecorpus delicti was not proven, thereby producing reasonable doubt as to their guilt. Thus, they assert that the presumption of innocence in their favor was not overcome by the presumption of regularity in the performance of official duty.

The essential requisites to establish illegal possession of dangerous drugs are: (i) the accused was in possession of the dangerous drug, (ii) such possession is not authorized by law, and (iii) the accused [25] freely and consciously possessed the dangerous drug. Additionally, this being a case for violation of Section 13 of R.A. No. 9165, an additional element of the crime is (iv) the possession of the dangerous drug must have occurred during a party, or at a social gathering or meeting, or in the proximate company of at least two (2) persons. The existence of the drug is the very corpus delicti of the crime of illegal possession of dangerous drugs and, thus, a condition sine qua non for conviction. In order to establish the existence of the drug, its chain of custody must be sufficiently established. The chain of custody requirement is essential to ensure that doubts regarding the identity of the evidence are removed through the monitoring and tracking of the movements of the seized drugs from the accused, to the police, to the forensic chemist, [26] and finally to the court. Malillin v. People was the first in a growing number of cases to explain the importance of chain of custody in dangerous drugs cases, to wit: As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the [27] item and no opportunity for someone not in the chain to have possession of the same.

Section 1(b) of DDB Regulation No. 1, Series of 2002,

[28]

defines chain of custody as follows:

b. Chain of Custody means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and used in court as evidence, and the final disposition; Paragraph 1, Section 21, Article II of R.A. No. 9165, provides for safeguards for the protection of the identity and integrity of dangerous drugs seized, to wit: SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.

People v. Habana thoroughly discusses the proper procedure for the custody of seized or confiscated items in dangerous drugs cases in order to ensure their identity and integrity, as follows: Usually, the police officer who seizes the suspected substance turns it over to a supervising officer, who would then send it by courier to the police crime laboratory for testing. Since it is unavoidable that possession of the substance changes hand a number of times, it is imperative for the officer who seized the substance from the suspect to place his marking on its plastic container and seal the same, preferably with adhesive tape that cannot be removed without leaving a tear on the plastic container. At the trial, the officer can then identify the seized substance and the procedure he observed to preserve its integrity until it reaches the crime laboratory. If the substance is not in a plastic container, the officer should put it in one and seal the same. In this way the substance would assuredly reach the laboratory in the same condition it was seized from the accused. Further, after the laboratory technician tests and verifies the nature of the substance in the container, he should put his own mark on the plastic container and seal it again with a new seal since the police officers seal has been broken. At the trial, the technician can then describe the sealed condition of the plastic container when it was handed to him and testify on the procedure he took afterwards to preserve its integrity. If the sealing of the seized substance has not been made, the prosecution would have to present every police officer, messenger, laboratory technician, and storage

personnel, the entire chain of custody, no matter how briefly ones possession has been. Each of them has to testify that the substance, although unsealed, has not been [29] tampered with or substituted while in his care. Section 21(a) of the Implementing Rules and Regulations (IRR) of R.A. No. 9165 further elaborates, and provides for, the possibility of non-compliance with the prescribed procedure: (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. [Emphasis supplied]

Accordingly, non-compliance with the prescribed procedural requirements will not necessarily render the seizure and custody of the items void and invalid, provided that (i) there is a justifiable ground for such non-compliance, and (ii) the integrity and evidentiary value of the seized items are properly preserved. In this case, however, no justifiable ground is found availing, and it is apparent that there was a failure to properly preserve the integrity and evidentiary value of the seized items to ensure the identity of the corpus delicti from the time of seizure to the time of presentation in court. A review of the testimonies of the prosecution witnesses and the documentary records of the case reveals irreparably broken links in the chain of custody. According to the apprehending police officers in their Joint Affidavit, the following were confiscated from the accused, to wit: a) b) Several pcs of used empty plastic sachets containing suspected shabu residues. Eight used (8) disposable lighters ( two (2) pcs colored orange, two (2) pcs colored yellow, one (1) pc colored green & one (1) pc colored white ). Several pcs of used rolled aluminum foil containing suspected shabu residues. Several pcs of used cut aluminum foil containing suspected shabu residues. One (1) pc glass tube containing suspected shabu residues. [Emphases supplied]
[30]

c) d) e)

At the police station, the case, the accused, and the above-mentioned items were indorsed to [31] Duty Investigator Senior Police Officer 1 Pedro Urbano, Jr. (SPO1 Urbano) for proper disposition. A letter-request for laboratory examination was prepared by Police Superintendent Edgar Orduna Basbag for the following items: a) Pieces of used empty small plastic sachets with suspected shabu residues marked DC&A-1.

b)

Pieces of used rolled and cut aluminum foil with suspected shabu residues marked DC&A-2. Pieces of used cut aluminum foil with suspected shabu residues marked DC&A[32] 3. [Emphases supplied]

c)

The letter-request and above-mentioned items were submitted to P/Insp. Maranion by SPO3 Froilan Esteban (SPO3 Esteban). Final Chemistry Report No. D-042-06L listed the specimens which were submitted for testing, to wit: SPECIMENS SUBMITTED: A A1 to A115 One Hundred fifteen (115) open transparent plastic sachet with tag each containing suspected shabu residue without markings. B B1 to B11 Eleven (11) rolled used aluminum foil with tag each containing suspected shabu residue without markings. C C1 to C49 Forty-nine (49) used aluminum foil with tag each containing suspected [33] shabu residue without markings. [Emphases supplied] Three days after the subject items were seized, or on September 5, 2006, a Confiscation Receipt was issued by PO1 Azardon and PO1 Dela Cruz, which reads: DCPS AID SOTG 05 September 2006 CONFISCATION RECEIPT

TO WHOM IT MAY CONCERN: THIS IS TO CERTIFY that on or about 12:45 noon of September 4, 2006, we together with our precinct supervisor, SPO4 Pedro Belen Jr., and SWAT members composed of SPO1 Marlon Decano, PO3 Manuel Garcia, PO2 Adriano Cepiroto and PO1 Aldrin Guarin apprehended the following names of persons of ARNOLD MARTINEZ Y ANGELES, 37 yrs old, married, jobless, a resident of Lucao Dist., this city; EDGAR DIZON Y FERRER, 36 yrs old, single, tricycle driver, a resident of 471 Lucao Dist., this city. REZIN MARTINEZ Y CAROLINO, 44 yrs old, married, jitney driver, a resident of Lucao Disttrict this city; ROLAND DORIA Y DIAZ, 39 yrs old, married, businessman, resident of Cabeldatan, Malasiqui, Pangasinan and RAFAEL GONZALES Y CUNANAN, 49 yrs old, separated, jobless and a resident of Trinidad Subd., Arellano-Bani this city. Suspects were duly informed of their constitutional rights and were brought to Dagupan City Police Station,Perez Market Site Dagupan City and indorsed to Duty Desk Officer to record the incident and the sachet of suspected Shabu Paraphernalias were brought to PNP Crime Laboratory, Lingayen, Pangasinan for Laboratory Examination. Seizing Officer: (sgd.) PO1 Bernard B Azardon Affiant (sgd.) PO1 Alejandro Dela Cruz Affiant

Remarks: Refused to Signed Refused to Signed Refused to Signed Refused to Signed [34] Refused to Signed [Emphases supplied] The 115 open transparent plastic sachets, 11 pieces of rolled used aluminum foil, and 27 (of the 49) pieces of used aluminum foil, all containing shabu residue, as identified in the Final Chemistry Report, were presented in court and marked as Exhibits H and series, I and series, and J and series, [35] respectively. Said items were identified by PO1 Azardon and P/Insp. Maranion at the witness stand. The CA ruled that the integrity and evidentiary value of the subject items were properly preserved as there was sufficient evidence to prove that the items seized from the accused were the same ones forwarded to the crime laboratory for examination, as shown in the Confiscation Receipt and the letterrequest for laboratory examination. A review of the chain of custody indicates, however, that the CA is mistaken. First, the apprehending team failed to comply with Section 21 of R.A. No. 9165. After seizure and confiscation of the subject items, no physical inventory was conducted in the presence of the accused, or their representative or counsel, a representative from the media and the DOJ, and any elected public official. Thus, no inventory was prepared, signed, and provided to the accused in the manner required by [36] law. PO1 Azardon, in his testimony, admitted that no photographs were taken. The only discernable reason proffered by him for the failure to comply with the prescribed procedure was that the situation happened so suddenly. Thus: Q: A: Q: A: Q: A: But upon receiving such report from that jeepney driver you immediately formed a group and went to the place of Rafael Gonzales? Yes, sir. Such that you did not even inform the PDEA before you barged in that place of Rafael Gonzales? It was so suddenly, [sic] sir. And that explains the reason why you were not able to have pictures taken, is that correct? [37] Yes, sir. [Emphasis supplied]

The Court does not find such to be a justifiable ground to excuse non-compliance. The suddenness of the situation cannot justify non-compliance with the requirements. The police officers were not prevented from preparing an inventory and taking photographs. In fact, Section 21(a) of the IRR of R.A. No. 9165 provides specifically that in case of warrantless seizures, the inventory and photographs shall be done at the nearest police station or at the nearest office of the apprehending officer/team. Whatever effect the suddenness of the situation may have had should have dissipated by the time they reached the police station, as the suspects had already been arrested and the items seized. Moreover, it has been held that in case of warrantless seizures nothing prevents the apprehending officer from

immediately conducting the physical inventory and photography of the items at their place of seizure, as it [38] is more in keeping with the laws intent to preserve their integrity and evidentiary value. This Court has repeatedly reversed conviction in drug cases for failure to comply with Section 21 of R.A. No. 9165, resulting in the failure to properly preserve the integrity and evidentiary value of the seized [39] [40] [41] items. Some cases arePeople v. Garcia, People v. Dela Cruz, People v. Dela Cruz, People [42] [43] [44] [45] v. Santos, Jr., People v. Nazareno, People v. Orteza, Zarraga v. People, and People v. [46] Kimura. Second, the subject items were not properly marked. The case of People v. Sanchez is instructive on the requirement of marking, to wit: What Section 21 of R.A. No. 9165 and its implementing rule do not expressly specify is the matter of "marking" of the seized items in warrantless seizures to ensure that the evidence seized upon apprehension is the same evidence subjected to inventory and photography when these activities are undertaken at the police station rather than at the place of arrest. Consistency with the "chain of custody" rule requires that the "marking" of the seized items - to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence - should be done (1) in the presence of the apprehended violator (2) immediately upon confiscation. This step initiates the process of protecting innocent persons from dubious and concocted searches, and of protecting as well the apprehending officers from harassment suits based on planting of evidence under Section 29 and on allegations of robbery or theft. For greater specificity, "marking" means the placing by the apprehending officer or the poseur-buyer of his/her initials and signature on the item/s seized. x x x Thereafter, the seized items shall be placed in an envelope or an evidence bag unless the type and quantity of the seized items require a different type of handling and/or container. The evidence bag or container shall accordingly be signed by the handling officer and turned [47] over to the next officer in the chain of custody. [Emphasis in the original] Nowhere in the testimony of PO1 Azardon or in his Joint Affidavit with PO1 Dela Cruz does it appear that the subject items were at all marked. It was only in the letter-request for laboratory examination that the subject items were indicated to have been marked with DC&A-1, DC&A-2 and DC&A-3. There is no showing, however, as to who made those markings and when they were made. Moreover, those purported markings were never mentioned when the subject items were identified by the prosecution witnesses when they took the stand. The markings appear to pertain to a group of items, that is, empty plastic sachets, rolled and cut aluminium foil, and cut aluminium foil, but do not specifically pertain to any individual item in each [48] group. Furthermore, it was only in the Chemistry Report that the precise number of each type of item was indicated and enumerated. The Court notes that in all documents prior to said report, the subject [49] [50] items were never accurately quantified but only described as pieces, several pcs, and shabu [51] paraphernallas. Strangely, the Chemistry Report indicates that all the subject items had no markings, although each item was reported to have been marked by P/Insp. Maranion in the course of [52] processing the subject items during laboratory examination and testing. Doubt, therefore, arises as to the identity of the subject items. It cannot be determined with moral certainty that the subject items seized from the accused were the same ones subjected to the laboratory examination and presented in court. This Court has acquitted the accused for the failure and irregularity in the marking of seized items [53] [54] [55] in dangerous drugs cases, such as Zarraga v. People, People v. Kimura, and People v. Laxa.

Third, the Confiscation Receipt relied upon by the prosecution and the courts below gives rise to more uncertainty. Instead of being prepared on the day of the seizure of the items, it was prepared only three days after. More important, the receipt did not even indicate exactly what items were confiscated and their quantity. These are basic information that a confiscation receipt should provide. The only information contained in the Confiscation Receipt was the fact of arrest of the accused and the general description of the subject items as the sachet of suspected Shabu paraphernallas were brought to the PNP Crime Laboratory. The receipt is made even more dubious by PO1 Azardons admission in his [56] testimony that he did not personally prepare the Confiscation Receipt and he did not know exactly who did so. Fourth, according to the Certification issued by the Dagupan Police Station, the subject items were indorsed by PO1 Dela Cruz to Duty Investigator SPO1 Urbano for proper disposition. These were later turned over by SPO3 Esteban to P/Insp. Maranion. There is, however, no showing of how and when the subject items were transferred from SPO1 Urbano to SPO3 Esteban. Fifth, P/Insp. Maranion appears to be the last person in the chain of custody. No witness testified on how the subject items were kept after they were tested prior to their presentation in court. This Court [58] [59] has highlighted similar shortcomings in People v. Cervantes, People v. Garcia, People v. [60] [61] Sanchez, and Malillin v. People. More irregularities further darken the cloud as to the guilt of the accused. Contrary to PO1 [62] Azardons testimony that they were tipped off by a concerned citizen while at the police station, the [63] Letter to the Executive Director of the DDB states that the apprehending officers were tipped off while conducting monitoring/surveillance. Said letter also indicates, as does the Confiscation Receipt, that the arrest and seizure occurred on September 4, 2006, and not September 2, 2006, as alleged in the Information. It was also mentioned in the aforementioned Certification of the Dagupan Police and Joint Affidavit of the police officers that a glass tube suspected to contain shabu residue was also confiscated from the accused. Interestingly, no glass tube was submitted for laboratory examination. In sum, numerous lapses and irregularities in the chain of custody belie the prosecutions position that the integrity and evidentiary value of the subject items were properly preserved. The two documents specifically relied on by the CA, the Confiscation Receipt and the letter-request for laboratory examination, have been shown to be grossly insufficient in proving the identity of the corpus delicti. The corpus delicti in dangerous drugs cases constitutes the drug itself. This means that proof beyond reasonable doubt of the identity of the prohibited drug is essential before the accused can be found [64] guilty. Regarding the lack of prior coordination with the PDEA provided in Section 86 of R.A. No. 9165, [65] in People v. Sta. Maria, this Court held that said section was silent as to the consequences of such failure, and said silence could not be interpreted as a legislative intent to make an arrest without the participation of PDEA illegal, nor evidence obtained pursuant to such an arrest inadmissible. Section 86 is explicit only in saying that the PDEA shall be the lead agency in the investigation and prosecution of drug-related cases. Therefore, other law enforcement bodies still possess authority to perform similar functions as the PDEA as long as illegal drugs cases will eventually be transferred to the latter. Let it be stressed that non-compliance with Section 21 of R.A. No. 9165 does not affect the [66] admissibility of the evidence but only its weight. Thus, had the subject items in this case been admissible, their evidentiary merit and probative value would be insufficient to warrant conviction.
[57]

It may be true that where no ill motive can be attributed to the police officers, the presumption of regularity in the performance of official duty should prevail. However, such presumption obtains only [67] when there is no deviation from the regular performance of duty. Where the official act in question is irregular on its face, the presumption of regularity cannot stand.

In this case, the official acts of the law enforcers were clearly shown and proven to be irregular. When challenged by the evidence of a flawed chain of custody, the presumption of regularity cannot [68] prevail over the presumption of innocence of the accused. This Court once again takes note of the growing number of acquittals for dangerous drugs cases due to the failure of law enforcers to observe the proper arrest, search and seizure procedure under the [69] law. Some bona fide arrests and seizures in dangerous drugs cases result in the acquittal of the accused because drug enforcement operatives compromise the integrity and evidentiary worth of the seized items. It behooves this Court to remind law enforcement agencies to exert greater effort to apply the rules and procedures governing the custody, control, and handling of seized drugs. It is recognized that strict compliance with the legal prescriptions of R.A. No. 9165 may not always be possible. Thus, as earlier stated, non-compliance therewith is not necessarily fatal. However, the lapses in procedure must be recognized, addressed and explained in terms of their justifiable grounds, and the integrity and evidentiary value of the evidence seized must be shown to have been [70] preserved.

On a final note, this Court takes the opportunity to be instructive on Sec. 11 (Possession of [72] Dangerous Drugs) and Sec. 15 (Use of Dangerous Drugs) of R.A. No. 9165, with regard to the charges that are filed by law enforcers. This Court notes the practice of law enforcers of filing charges under Sec. 11 in cases where the presence of dangerous drugs as basis for possession is only and solely in the form of residue, being subsumed under the last paragraph of Sec. 11. Although not incorrect, it would be more in keeping with the intent of the law to file charges under Sec. 15 instead in order to rehabilitate first time offenders of drug use, provided that there is a positive confirmatory test result as required under Sec. 15. The minimum penalty under the last paragraph of Sec. 11 for the possession of residue is imprisonment of twelve years and one day, while the penalty under Sec. 15 for first time offenders of drug use is a minimum of six months rehabilitation in a government center. To file charges under Sec. 11 on the basis of residue alone would frustrate the objective of the law to rehabilitate drug users and provide them with an opportunity to recover for a second chance at life. In the case at bench, the presence of dangerous drugs was only in the form of residue on the drug paraphernalia, and the accused were found positive for use of dangerous drugs. Granting that the arrest was legal, the evidence obtained admissible, and the chain of custody intact, the law enforcers should have filed charges under Sec. 15, R.A. No. 9165 or for use of dangerous drugs and, if there was [73] no residue at all, they should have been charged under Sec. 14 (Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings). [74] Sec. 14 provides that the maximum penalty under Sec. 12 (Possession of Possession of Equipment,

[71]

Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs) shall be imposed on any person who shall possess any equipment, instrument, apparatus and other paraphernalia for dangerous drugs. Under Sec. 12, the maximum penalty is imprisonment of four years and a fine of P50,000.00. In fact, under the same section, the possession of such equipment, apparatus or other paraphernalia is prima facie evidence that the possessor has used a dangerous drug and shall be presumed to have violated Sec. 15. In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls on law enforcers and prosecutors in dangerous drugs cases to exercise proper discretion in filing charges when the presence of dangerous drugs is only and solely in the form of residue and the confirmatory test required under Sec. 15 is positive for use of dangerous drugs. In such cases, to afford the accused a chance to be rehabilitated, the filing of charges for or involving possession of dangerous drugs should only be done when another separate quantity of dangerous drugs, other than mere residue, is found in the possession of the accused as provided for in Sec. 15. WHEREFORE, the August 7, 2009 Decision of the Court of Appeals in CA-G.R. HC-NO. 03269 is REVERSEDand SET ASIDE and another judgment entered ACQUITTING the accused and ordering their immediate release from detention, unless they are confined for any other lawful cause. Let a copy of this decision be furnished the Director of the Bureau of Corrections, Muntinlupa City, for immediate implementation. The Director of the Bureau of Corrections is directed to report to this Court within five days from receipt of this decision the action he has taken. Copies shall also be furnished the Director-General, Philippine National Police, and the DirectorGeneral, Philippine Drugs Enforcement Agency, for their information and guidance. The Regional Trial Court, Branch 41, Dagupan City, is directed to turn over the seized items to the Dangerous Drugs Board for destruction in accordance with law. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 191069 Present:

- versus -

SULPICIO SONNY BOY TAN y PHUA, Accused-Appellant.

CORONA, J., Chairperson, VELASCO, JR., LEONARDO-DE CASTRO, * PERALTA, and PEREZ, JJ. Promulgated:

November 15, 2010 x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

The Case

This is an appeal from the October 26, 2009 Decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 03245 entitled People of the Philippines v. Sulpicio Sonny Boy Tan y Phua, which affirmed [2] the December 18, 2007 Decision in Criminal Case No. 06-426 of the Regional Trial Court (RTC), Branch 65 in Makati City. The RTC found accused-appellant Sulpicio Sonny Boy Tan y Phua guilty of violation of Section 11, Article II of Republic Act No. (RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002.

[1]

The Facts

The charge against accused-appellant stemmed from the following Information:

th

That on or about the 20 day of February, 2006, in the City of Makati, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized to possess or otherwise use any dangerous drug, and without the corresponding license or prescription, did then and there willfully, unlawfully and feloniously have in his possession, direct custody and control, 120 tablets of Valium 10 mg weighing a total of nineteen point six (19.6) grams, said tablets contain Diazepam which is a dangerous drug, in violation of the above-cited law.

Contrary to law.

[3]

On March 21, 2006, accused-appellant was initially arraigned, and he pleaded not guilty to the charge against him. However, on March 22, 2006, his counsel de oficio, Atty. Clarence S. Dizon, filed a motion to allow accused-appellant to withdraw his earlier plea and for reinvestigation of the case. Seeing as there was no objection from the prosecution, the RTC granted the motion.

After finding that there exists probable cause against accused-appellant for violation of Sec. 11, Art. II of RA 9165, the prosecution filed on July 11, 2006 a motion to set the case for arraignment and [4] [5] trial. The motion was granted by the RTC.

Thus, on July 18, 2006, accused-appellant, assisted by counsel de oficio, Atty. Eliza B. Yu, re[6] entered his previous plea of not guilty to the offense charged.

During pre-trial, the parties entered into stipulation with regard to the Final Investigation Report and the Acknowledgment Receipt issued by the Makati City Police Station through Police Officer 2 (PO2) [7] Rafael Castillo. Likewise, the parties stipulated as to the testimony of the forensic chemist, Police Senior Inspector Richard Allan B. Mangalip, who established the existence of the request for drug test dated [8] February 20, 2006 and the result dated February 22, 2006, yielding positive result for the presence of [9] Diazepam, a dangerous drug.

After the pre-trial conference, trial on the merits ensued.

During the trial, the prosecution presented as its witness Senior Police Officer 2 (SPO2) Edmundo Geronimo. Thereafter, the defense counsel stipulated as merely corroborative the testimonies of PO1 Victoriano Cruz, Jr., SPO1 Carlo Quilala, and PO3 Giovanni Avendano.

On the other hand, the defense presented as its sole witness, Sonny Boy, accused-appellant himself.

From the evidence adduced by the prosecution, it appears that on February 20, 2006, at around 1:15 in the morning, SPO2 Geronimo, SPO1 Quilala, PO3 Avendano, and PO1 Cruz of the Makati City Philippine National Police (PNP) conducted a manhunt operation against a suspect in a robbery case [10] involving Korean nationals along P. Burgos,Barangay Poblacion, Makati City. While on board their civilian vehicle, they chanced upon a male individual selling certain items to two foreigners. They heard [11] him say, Hey Joe, want to buy Valium 10, Cialis, Viagra? Curious, they inquired and the male individual told them that he was selling Viagra and Cialis, while, at the same time, showing them the [12] contents of his bag which yielded 120 tablets of Valium 10.

The male individual, who later turned out to be Sonny Boy, was immediately searched and placed under arrest, after which they informed him of the nature of his apprehension and of his constitutional rights. Sonny Boy was then brought to the office of the Station Anti-Illegal Drugs Special Operations Task Force (SAID-SOTF), where the items recovered from him were marked and inventoried by PO1 [13] Cruz. The items were turned over to the duty investigator.

In contrast, Sonny Boy interposed the defense of denial. He maintained that he was merely watching cars as a parking boy along P. Burgos when two men suddenly held and invited him for [14] questioning. They asked him if he knew any drug pushers and, if he did, to identify them. When he was unable to do so, they charged him for violation of Sec. 11, Art. II of RA 9165, which is the subject of the instant case.

Ruling of the Trial Court

After trial, the RTC found accused-appellant guilty of the crime. The dispositive portion of its December 18, 2007 Decision reads:

WHEREFORE, in view of the foregoing, judgment is hereby rendered finding accused, SULPICIO SONNY BOY TAN y PHUA, GUILTY, beyond reasonable doubt of the charge for violation of Sec. 11 Art. 11, RA 9165 and sentences him to suffer the penalty of LIFE IMPRISONMENT and to pay a fine of Four Hundred Thousand (P400,000.00). xxxx SO ORDERED.
[15]

On appeal to the CA, accused-appellant disputed the lower courts finding of his guilt beyond reasonable doubt of the crime charged. He argued that the prosecution failed to establish every link in its chain of custody and that the warrantless search and arrest done by the police officers were illegal.

Ruling of the Appellate Court

On October 26, 2009, the CA affirmed the judgment of the lower court finding that the prosecution succeeded in establishing, with moral certainty, all the elements of illegal possession of dangerous drugs. The dispositive portion of the CA Decision reads:

WHEREFORE, premises considered, the decision of the Regional Trial Court in Crim. Case No. 06-426 dated December 18, 2007, finding accused-appellant Sulpicio Sonny Boy Tan y Phua, guilty beyond reasonable doubt of violation of Section 11, Article II, Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, isAFFIRMED WITH MODIFICATION in that accused-appellant is sentenced to suffer the penalty of life imprisonment and to pay a fine of Five Hundred Thousand Pesos (P500,000.00).

SO ORDERED.

[16]

Accused-appellant timely filed a notice of appeal from the decision of the CA.

The Issues

Accused-appellant assigns the following errors:

I. THE COURT A QUO GRAVELY ERRED IN ADMITTING THE PROHIBITED DRUGS IN EVIDENCE DESPITE THE PROSECUTIONS FAILURE TO ESTABLISH EVERY LINK IN ITS CHAIN OF CUSTODY.

II. THE COURT A QUO GRAVELY ERRED IN NOT FINDING THE ACCUSEDAPPELLANTS WARRANTLESS SEARCH AND ARREST AS ILLEGAL. III. THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY DESPITE THE PROSECUTIONS FAILURE TO PROVE HIS GUILT BEYOND [17] REASONABLE DOUBT.

Our Ruling

The appeal has no merit.

Chain of Custody Was Properly Established

Accused-appellant maintains in his Brief that the police officers failed to mark, inventory, and photograph the prohibited items allegedly seized from him at the time of his apprehension. Further, he contends that the prosecution failed to establish how the prohibited items, which were marked by PO1 Cruz, received and inventoried by PO2 Castillo, were turned over to PO1 Mendoza for delivery to the [18] PNP Crime Laboratory for examination. He argues that [t]o successfully prove that the chain of custody was unbroken, every link in the chain, meaning everyone who held and took custody of the [19] specimen, must testify as to that degree of precaution undertaken to preserve it.

Such argument must fail.

The Implementing Rules and Regulations (IRR) of RA 9165 provides:

SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items x x x. (Emphasis supplied.)

Evidently, the law itself lays down exceptions to its requirements. Thus, contrary to the assertions of accused-appellant, Sec. 21 of the IRR need not be followed with pedantic rigor. It is settled that noncompliance with Sec. 21 does not render an accuseds arrest illegal or make the items seized [20] inadmissible. What is imperative is the preservation of the integrity and the evidential value of the seized items as the same would be utilized in the determination of the guilt or innocence of the [21] accused.

As a mode of authenticating evidence, the chain of custody rule requires that the admission or presentation of an exhibit, such as the seized prohibited drugs, be preceded by evidence sufficient to [22] support a finding that the matter in question is what the proponent claims it to be. As held by this Court in Malillin v. People, this would ideally include the testimonies of all persons who handled the specimen, viz:

x x x from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item [23] and no opportunity for someone not in the chain to have possession of the same.

In the instant case, there was substantial compliance with the law and the integrity of the drugs seized was preserved. The testimony of SPO2 Geronimo categorically established the manner by which the prohibited drugs were handled from the moment they were seized from accused-appellant up to the time they were turned over to the duty officer and investigator at SAID-SOTF, who, in turn, turned them over to the PNP Crime Laboratory for examination. All this was narrated by SPO2 Geronimo, as follows:

Prosecutor Henry M. Salazar: Q: Mr. Witness, last February 20, 2006, about 1:15 in the early morning, can you tell us where were you?

SPO2 Eduardo Geronimo: A: On that particular date and time, 1:15 a.m., February 20, 2006, we are conducting a manhunt operation against the suspect of a Robbery Break-in on Korean Nationals. And where were you conducting, Mr. Witness, this follow up operation? Along P. Burgos Street, Barangay Poblacion, Makati City. Can you tell us who were with you, Mr. Witness? SPO1 Carlo C. Quilala, PO3 Giovanni P. Avendano and PO1 Victoriano J. Cruz, [24] Jr. xxxx Q: In this particular time, 1:15 a.m., February 20, 2006, you mentioned that you were conducting a follow-up operation regarding a Robbery Break-in on Korean Nationals, where were you in particular at that time? We were on board our issued civilian vehicle Tamaraw FX with Plate Number SED-894. Where were you positioned or located at that time? We were on stop position in front of the Makati Palace Hotel, more or less 5 meters away [sic] we stopped. On that position, Mr. Witness, can you tell us if you can recall of any incident, which caught your attention at that time? On that moment, we were having surveillance against the suspect on the Robbery Break-in. We caught the attention of one male person who was selling items to two (2) foreigners. How did you come to know Mr. Witness, that this male person was engaged in selling items to these two (2) male foreigners? After we saw and heard male person named Sulpicio Sonny Boy Tan, we immediately alighted from our vehicle and accosted said person and brought him near our vehicle. What did you hear from this male person, Mr. Witness, which caused you to accost him and bring him near your vehicle? We actually heard him saying, Hey Joe, want to buy Valium 10, Cialis, Viagra. xxxx Q: And what did you tell this person when you accost him and brought him near your vehicle?
[25]

Q: A: Q: A:

A: Q: A: Q: A:

Q: A:

Q: A:

A: Q: A: Q: A: Q: A:

We asked him what are those items he was selling? When you asked him what item was he selling at that time, what did he tell to your group? He told us only Viagra, Cialis. And what did you do at that time after he informed you that he was selling Viagra and Cialis? He showed it to us, and then we brought him in front of our vehicle and he showed us the contents of his bag. And what did you find inside his bag at that time? Right on top of the hood of our vehicle he showed us everything and we learned [26] that not only Viagra, Cialis but he has also Valium 10, 120 tablets. xxxx Now, after these items which youve just mentioned considering of Valium 10, Viagra, Cialis were brought out from his bag and placed on top of the hood of you(r) vehicle, what did you do next at that time? After seeing the other drugs, Valium 10, we effected the arrest and we brought him to SAID-SOTF. And what happened after you brought this male person to the SAID-SOTF? We turned over the suspect. How about the items which you claimed to be with him at that time, what did you do with them? We turned over the suspect as well as the evidence we seized from him. After having turned over these items, Mr. Witness, what else did you do? Afterwards, sir, we executed our Affidavit of Arrest that the investigator required. How about the items, what did you do with these from which you recovered from this male person? On February 20, 2008, we turned it over to the duty officer and to the investigator, sir. Before turning it over, Mr. Witness, what did you do with these items? We put markings on them, sir. Who marked these items, Mr. Witness? One of my colleague[s], sir, PO1 Victoriano Cruz. Where were you at that time when PO1 Cruz marked these items recovered from this male person? We were already at the office of SAID-SOTF, right in front of him, sir. And what markings were placed by PO1 Cruz on these items? He put Kokoy for 120 tablets of Valium 10.
[27]

Q:

A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q:

How about the other items, Mr. Witness, what markings were placed by PO1 Cruz? Kokoy 2, Kokoy 3, Kokoy 4. And after that, what else did you do at that time?

A: Q: A:

We left the suspect to the investigation and then we brought him to the jail. In connection with the apprehension of this male person, can you recall having executed an affidavit or any document? We executed our Joint Affidavit of Arrest, sir.
[28]

Moreover, it bears stressing that during the September 18, 2007 hearing, both parties stipulated to the effect that the testimony of PO1 Cruz, as contained in the Joint Affidavit of Arrest, is corroborative [29] with that of all the other affiants. Similarly, during the pre-trial conference, the parties stipulated on the [30] testimony of PO2 Castillo, the investigator who issued the Acknowledgment Receipt of the seized [31] drugs on behalf of SAID-SOTF and the Final Investigation Report on the incident. And lastly, the parties also stipulated on the testimony of the forensic chemist who conducted the laboratory examination [32] [33] on the seized drugs and issued Physical Science Report Nos. D-125-06S and DT-130-06S, which both yielded positive results for dangerous drugs. It was, in fact, due to these stipulations that all other testimonies were dispensed with, as agreed to by both parties.

Therefore, it is evidently clear that the chain of custody of the illicit drug found in accusedappellants presence was unbroken.

Warrantless Search and Arrest Were Legal and Valid

Further, accused-appellant challenges the legality of his warrantless search and arrest for the first time in his appeal. He argues that such was illegal, since none of the instances wherein a search and seizure may be done validly without a warrant was present.

Such argument is untenable.

First of all, accused-appellant never raised this issue before his arraignment. He never questioned the legality of his arrest until his appeal. On this alone, the contention must fail. It has been ruled time and again that an accused is estopped from assailing any irregularity with regard to his arrest if he fails to raise this issue or to move for the quashal of the information against him on this ground before [34] his arraignment. Any objection involving the procedure by which the court acquired jurisdiction over the person of the accused must be made before he enters his plea; otherwise, the objection is deemed [35] waived.

In the instant case, accused-appellant even requested a reinvestigation during his initial arraignment, and, as a result, his arraignment was postponed. He could have questioned the validity of his warrantless arrest at this time but he did not. His arraignment was then rescheduled where he entered a plea of not guilty and participated in the trial. Thus, he is deemed to have waived any question as to any defect in his arrest and is likewise deemed to have submitted to the jurisdiction of the court.

What is more, Sec. 5, Rule 113 of the Rules on Criminal Procedure clearly provides for the instances when a person may be arrested without a warrant, to wit: Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. (Emphasis supplied.)

Undoubtedly, the case at bar falls under Sec. 5(a) of Rule 113, that is, when the person to be arrested is actually committing an offense, the peace officer may arrest him even without a warrant. However, a warrantless arrest must still be preceded by the existence of probable cause. Probable cause is defined as a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to induce a cautious man to believe that the person accused is guilty of the offense [36] charged.

In People v. Mariacos, the Court further expounded on the definition of probable cause:

It refers to the existence of such facts and circumstances that can lead a reasonably discreet and prudent man to believe that an offense has been committed, and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law are in the place to be searched. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled [37] with good faith on the part of the peace officers making the arrest.

Here, the arresting officers had sufficient probable cause to make the arrest in view of the fact that they themselves heard accused-appellant say, Hey Joe, want to buy Valium 10, Cialis, [38] Viagra? which, in turn, prompted them to ask accused-appellant what he was selling. When accusedappellant showed them the items, they identified 120 tablets of Valium 10, a regulated drug. The police officers then became obligated to arrest accused-appellant, as he was actually committing a crime in their presencepossession of a dangerous drug, a violation of Sec. 11, Art. II of RA 9165. Therefore, it is without question that the warrantless search and arrest of accused-appellant are legal and valid.

All things considered, this Court sees no compelling reason to disturb the findings of the trial court. The prosecution succeeded in establishing, with moral certainty, all the elements of the crime of illegal possession of dangerous drugs: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely [39] and consciously possessed the said drug.

WHEREFORE, the appeal is DENIED. The CA Decision in CA-G.R. CR-H.C. No. 03245 finding accused-appellant Sulpicio Sonny Boy Tan y Phua guilty of the crime charged is AFFIRMED. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 185848 August 16, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. MICHAEL SEMBRANO y CASTRO, Accused-Appellant. DECISION PEREZ, J.: Accused-appellant MICHAEL SEMBRANO y CASTRO (appellant) is before this Court appealing from the 1 18 June 2008 Decision of the Court of Appeals in CA-G.R. HC No. 02762 captioned People of the 2 Philippines v. Michael Sembrano y Castro. The Court of Appeals affirmed his conviction by the Regional Trial Court of Quezon City (RTC, QC) for the crimes of illegal sale and illegal possession of shabu, a dangerous drug, in violation of Sections 5 and 11, Article II, of Republic Act No. 9165 or the 3 Comprehensive Dangerous Drugs Act of 2002. The antecedent facts On 26 July 2004, the operatives of the Station Anti-Illegal Drugs (SAID) of the Novaliches Police Station arrested appellant in broad daylight, in the course of a buy-bust operation and after a follow-up search on him. On 28 July 2004, the Assistant City Prosecutor of Quezon City in the National Capital Region (QC-NCR) filed two separate Informations against him for (1) illegal sale and (2) illegal possession of shabu, a dangerous drug. The two cases were raffled to Branch 82 of the RTC, QC and docketed as Criminal Cases Nos. Q-04-128370 and Q-04-128371, imputing the following acts against him: Criminal Case No. Q-04-128370 That on or about the 26th day of July 2004, in Quezon City, Philippines, the said accused, not being authorized by law to sell, dispense, deliver transport or distribute any dangerous drug, did, then and there, willfully and unlawfully sell, dispense, deliver, transport, distribute or act as broker in the said transaction, zero point twelve (0.12) gram of white crystalline substance containing of 4 Methylamphetamine Hydrochloride, a dangerous drug. Criminal Case No. Q-04-128371 That on or about the 26th day of July 2004, in Quezon City, Philippines, the said accused, not being authorized by law to possess any dangerous drug, did, then and there, willfully, unlawfully and knowingly have in his/her/their possession and control, zero point twenty seven (0.27) gram of white crystalline 5 substance containing Methylamphetamine Hydrochloride, a dangerous drug. Sembrano was arraigned on 19 April 2005 and with the assistance of counsel, pleaded not guilty to the 6 charges. Pre-trial proceedings having been terminated, trial on the merits ensued.

During trial, the prosecution presented the testimonies of the following witnesses: (1) Police Officer 1 (PO1) Jomar Manaol; and (2) Police Officer 1 (PO1) Kingly James Bagay. The combined testimonies of PO1 Manaol and PO1 Bagay sought to establish that at around 3:00 oclock in the afternoon of 26 July 2004, an informant of the police arrived at the SAID of the Novaliches Police Station. The confidential informant relayed information regarding illicit drugs trade operations conducted by a certain Michael Sembrano alias Takol in the area of Gulod in Novaliches, Quezon City. Superintendent (Supt.) Ramon Perez, head of SAID, formed a buy-bust team composed of PO1 Jomar Manaol, SPO1 Cesar Futol, PO1 Kingly James Bagay, PO1 Neil John Dumlao, and PO1 Fernando Salonga. SPO1 Futol prepared the pre-operation report for the team. The group then proceeded to Ignacio Street corner Villareal Street in Gulod, Novaliches, Quezon City for the entrapment operation. The group arrived at the designated area at around 3:30 oclock in the afternoon. PO1 Manaol was designated poseur-buyer. He was handed two (2) One Hundred Peso bills which he marked with his initials JAM on the lower right side thereof, right below the image of the Philippine Flag. PO1 Manaol, together with the confidential informant, then proceeded to the target site. The other members of the team, including witness PO1 Bagay, acted as back-up and positioned themselves about twenty-five meters away from where PO1 Manaol and the confidential informant were. They waited until appellant arrived at around 5:00 oclock in the afternoon. Upon appellants arrival, the confidential informant introduced PO1 Manaol to him as an interested buyer of shabu. PO1 Manaol handed the two marked One Hundred Peso bills to appellant, who, in turn, handed one (1) plastic sachet containing white crystalline substance to him. The transaction having been consummated, PO1 Manaol executed their pre-arranged signal and scratched his head. When the other members of the team saw PO1 Manaol execute the pre-arranged signal, they immediately proceeded to their location and arrested appellant. PO1 Manaol recovered the suspected shabu subject of the sale from appellant and placed his initials JAM thereon. PO1 Bagay was also able to retrieve the buy-bust money from appellants right hand. A follow-up frisk on appellant resulted in the confiscation of two other plastic sachets of white crystalline substance suspected to be shabu, from the right hand pocket of his shorts. Immediately after retrieving the evidence, PO1 Bagay marked the confiscated sachets with his initials KJB. After his arrest, the police officers took appellant to the police station where he was turned over to the desk officer and to the on-duty investigator. PO1 Bagay, who had custody of the confiscated evidence, turned over the seized three (3) plastic sachets of white crystalline substance to the investigator. PO1 Manaol and PO1 Bagay executed a Joint Affidavit of Arrest and signed the Inventory of Seized Drugs/Item prepared by SPO1 Cesar Futol. The confiscated items were transmitted on the same day by the investigator on-duty, through PO1 Salonga, PO1 Manaol and PO1 Bagay to the Philippine National Police (PNP) Crime Laboratory for examination. A forensic examination of the contents of the seized sachets as conducted by Police Senior Inspector (P/S Insp.) Leonard T. Arban, Forensic Chemical Officer yielded the following results in Chemistry Report No. D-698-04: SPECIMEN SUBMITTED: Three (3) heat-sealed transparent plastic sachets, each containing white crystalline substance with the following markings and recorded net weights:

A (JAM - MCS) = 0.12 gram B (KJB MCS1) = 0.10 gram C (KJB MCS2) = 0.17 gram FINDINGS: Qualitative examination conducted on the above-stated specimens gave POSITIVE result to the tests for 7 Methylamphetamine Hydrochloride, a dangerous drug. Expectedly, the defense had an entirely different version, with Sembrano testifying on the witness stand. He narrated that at around 1:00 oclock in the afternoon of 26 July 2004; he was buying lumber somewhere along Quirino Highway in Novaliches, Quezon City, when a maroon Tamaraw FX stopped in front of him. The occupants thereof, PO1 Bagay and PO1 Manaol, alighted from the vehicle and arrested him. After being arrested, the police officers took him to Station 4 whereupon he was required to sign a document. Sembrano learned later on that the police officers filed a case against him for violation of Republic Act No. 9165. When asked on the witness stand if he knew the two police officers, Sembrano answered in the affirmative, having met the two since he had been their police asset since 23 April 2003. In support of his claim, Sembrano presented a copy of an Oath of Loyalty and Agents Agreement to prove he was indeed a police asset. On cross examination, however, he testified that the police officers he mentioned were not signatories to the Oath of Loyalty and Agents Agreement he presented in court. The RTC found accused-appellant guilty as charged in Criminal Cases Nos. Q-04-128370 and Q-04128371. Weighing the body of evidence submitted by both parties, the trial court gave little credence to appellants unsubstantiated claim that he was a police asset and ascertained that the prosecution established all the elements of illegal sale and illegal possession of a dangerous or prohibited drug. Thus, in its Decision dated 14 February 2007, the trial court rendered judgment disposing as follows: WHEREFORE, premises considered, judgment is hereby rendered as follows: a) Re: Criminal Case No. Q-0-4128370, accused MICHAEL SEMBRANO is hereby found guilty beyond reasonable doubt a (sic) of a violation of Section 5, Article II of R.A. No. 9165, and accordingly, he is hereby sentenced to suffer the penalty of LIFE IMPRISONMENT and to pay a fine in the amount of FIVE HUNDRED THOUSAND PESOS (P500,000.00) PESOS; b) Re: Criminal Case No. Q-04-128371, said accused is likewise found guilty beyond reasonable doubt of violation of Section 11, Article II of the same Act and, accordingly, he is hereby sentenced to suffer the indeterminate penalty of imprisonment of TWELVE (12) YEARS and one (1) DAY as MINIMUM to FOURTEEN (14) YEARS as MAXIMUM and to pay a fine in the amount of THREE HUNDRED 8 THOUSAND (P300,000.00) PESOS. Seeking recourse from his conviction by the trial court, the appellant elevated the case to the Court of Appeals via Notice of Appeal. Insisting on his innocence, the defense questioned the admissibility of the confiscated evidence on the ground of illegality of appellants arrest. The defense also attacked the credibility of the prosecution witnesses, claiming their stories are unbelievable and should have led to the dismissal of the charges. According credence to the evidence of the prosecution, the Court of Appeals promulgated its Decision on 18 June 2008, where the appellate court affirmed the findings and conclusions of the trial court, but reduced the penalty imposed in the illegal possession case to six (6) years and one (1) day of prision

mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as 9 maximum. Appellant is now appealing his conviction to this Court, as a final recourse, praying that he be absolved of the charges. Instead of filing supplemental briefs, the defense and the prosecution adopted the arguments in their respective appellate briefs submitted before the Court of Appeals. Thus, this Court is tasked to resolve the following assignment of errors: I. THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT APPELLANT WAS ILLEGALLY ARRESTED AND AS SUCH, THE SACHETS OF SHABU ALLEGEDLY RECOVERED FROM HIM WERE INADMISSIBLE IN EVIDENCE. II. THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE INCREDIBLE TESTIMONIES OF THE PROSECUTION WITNESSES. III. THE TRIAL COURT GRAVELY ERRED IN FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED. The defense challenges the RTC and Court of Appeals rulings, anchored on its claim that the warrantless arrest against appellant was unlawful. Consequently, applying the fruit of the poisonous tree doctrine, any evidence allegedly obtained during such unlawful warrantless arrest cannot be used as evidence. The defense proffers that the illegal drugs allegedly seized from appellant during the buy-bust operation should have been declared inadmissible. Alleging he is a victim of frame-up by the police officers, appellant attacks the credibility of the prosecution witnesses. In sum, appellant seeks acquittal on the ground that the prosecution failed to prove his guilt beyond reasonable doubt. Coming from an entirely different perspective, the Office of the Solicitor General (OSG), representing the prosecution, disagrees with the aforementioned contentions from the defense side. It counters that the sachets of shabu were seized from appellant during a buy-bust operation. Thus, any opposition thereto with respect to its admissibility on the ground that said sachets were seized during an illegal arrest is unfounded. As for the testimonies of the prosecution witnesses, the testimony of the poseur-buyer, in particular, was corroborated by the police operatives on material points. We find no merit in the appeal. Conviction is proper in prosecutions involving illegal sale of regulated or prohibited drugs if the following elements are present: (1) the identity of the buyer and the seller, the object, and the consideration; and 10 (2) the delivery of the thing sold and the payment thereto. What is material is proof that the transaction 11 or sale actually took place, coupled with the presentation in court of the prohibited or regulated drug. We reiterate the meaning of the term corpus delictiwhich is the actual commission by someone of the 12 particular crime charged. Having weighed the arguments and evidence propounded by the defense and the prosecution, this Court is satisfied that the prosecution discharged its burden of establishing all the elements of illegal sale of regulated or prohibited drugs and proved appellants guilt beyond reasonable doubt. The collective testimonies of the prosecution witnesses, as well as the documentary evidence offered in court, provide a detailed picture of the sequence of events leading to the consummation of the transaction, the very moment PO1 Manaol received the drug from accused-appellant, the seller. The foregoing is the very corpus delicti of the offense.

Whatever doubt concerning appellants culpability is now beyond question after he was caught in a buybust operation conducted by the operatives of the Novaliches Police Station in the afternoon of 26 July 2004 along Villareal Street. Appellant was caught in flagrante delicto delivering 0.12 gram of methamphetamine hydrochloride or shabu to PO2 Manaol, the poseur-buyer, for a consideration of P200.00. Upon frisking after his arrest, another 0.27 gram of methamphetamine hydrochloride were recovered from him. It is clear from the evidence on record that the sachet of shabu sold by appellant was marked by PO2 Manaol with his initials, while the other two sachets were marked by PO1 Bagay with his initials. PO1 Bagay, who had custody of the seized evidence, brought confiscated three plastic sachets of white crystalline substance to the police station and turned over to the investigator. At the police station, an Inventory of Seized Drugs/Item was prepared by SPO1 Cesar Futol and signed by PO1 Manaol and PO1 Bagay. The investigator on duty, to whom the seized evidence were encrusted by PO1 Bagay, through PO1 Salonga, PO1 Manaol and PO1 Bagay, turned over the evidence to the PNP-Crime Laboratory for forensic examination on the same day he received the items. In a Chemistry Report released by P/S Insp. Leonard T. Arban, the white crystalline substance taken from the three sachets proved positive for shabu. PO1 Manaol, the poseur-buyer, positively identified Sembrano as the person who sold and handed him 13 the sachet containing white crystalline substance, proven to be shabu. 1avvph!1 On the legality of the warrantless arrest, We reiterate that appellant was arrested during an entrapment operation where he was caught in flagrante delicto selling shabu. When an arrest is made during an entrapment operation, it is not required that a warrant be secured in line with the provisions of Rule 113, Section 5(a) of the Revised Rules of Court allowing warrantless arrests, to wit: Section 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. xxx A buy-bust operation is a form of entrapment which in recent years has been accepted as a valid and 14 effective mode of apprehending drug pushers. If carried out with due regard for constitutional and legal safeguards, a buy-bust operation, such as the one involving appellant, deserves judicial sanction. Consequently, the warrantless arrest and warrantless search and seizure conducted on the person of appellant were allowed under the circumstances. The search, incident to his lawful arrest, needed no 15 warrant to sustain its validity. Thus, there is no doubt that the sachets of shabu recovered during the 16 legitimate buy-bust operation, are admissible and were properly admitted in evidence against him. Appellants defenses of denial and frame-up are both self-serving and uncorroborated, and must fail in light of straightforward and positive testimony of poseur-buyer identifying him as the seller of shabu. The twin defenses of denial and frame-up hold little weight vis--vis the strong evidence gathered by the prosecution in proving his complicity to the offenses. To recall, PO1 Manaols testimony was corroborated on material points by PO1 Bagay, who identified appellant as the one who handed the sachet of shabu to PO1 Manaol after being handed two (2) One Hundred Peso bills. Contrary to the defenses claim, it is not impossible for a buy-bust operation to be conducted in broad daylight, as in the case at bar. Frame-up, 17 like denial, is viewed by this Court with disfavor for it can easily be concocted. Finally, in cases involving violations of Dangerous Drugs Act, credence should be given to the narration of the incident by the prosecution witnesses especially when they are police officers who are presumed to 18 have performed their duties in a regular manner, unless there is evidence to the contrary. In this regard, the defense failed to show any ill motive or odious intent on the part of the police operatives to impute

such a serious crime that would put in jeopardy the life and liberty of an innocent person, such as in the case of appellant. Incidentally, if these were simply trumped-up charges against him, it remains a question why no administrative charges were brought against the police operatives. Moreover, in weighing the testimonies of the prosecution witnesses vis--vis those of the defense, it is a well-settled rule that in the absence of palpable error or grave abuse of discretion on the part of the trial judge, the 19 trial courts evaluation of the credibility of witnesses will not be disturbed on appeal. On the merits of allegations of illegal possession of shabu, We find, likewise, against appellant and sustain the findings of the RTC and Court of Appeals. For illegal possession of regulated or prohibited drugs, the prosecution must establish the following elements: (1) the accused is in possession of an item or object, which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the 20 drug. All the aforesaid elements were established. Incident to his lawful arrest resulting from the buybust operation, appellant was likewise found to have in his possession 0.27 gram of methamphetamine hydrochloride, or shabu, the same kind of dangerous drug he was caught selling in flagrante delicto. There is nothing on record to show that he had legal authority to possess the same. Finally, this Court held in a number of cases, as in People v. Noque, G.R. No. 175319, 15 January 2010, citing People v. Tee, 443 Phil. 521, 551 (2003), mere possession of a regulated drug per se constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused absent a satisfactory explanation of such possession the onus probandi is shifted to the accused, to explain the absence of knowledge or animus possidendi. We now determine the imposable penalties. The sale of shabu is punishable under Section 5, Article II of Republic Act No. 9165, viz.: Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. - The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. x x x Under the provisions of said law, the sale of any dangerous drug, e.g. shabu, regardless of its quantity and purity, carries with it the penalty of life imprisonment to death and a fine ranging from Five Hundred 21 Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00). With the effectivity, however, of Republic Act No. 9346, otherwise known as "An Act Prohibiting the Imposition of Death Penalty in the Philippines," the imposition of the supreme penalty of death has been proscribed. In this regard, the penalty applicable to Sembrano shall only be life imprisonment and fine without eligibility for parole. This Court thus sustains the penalty imposed by the RTC and later on affirmed by the Court of Appeals in Criminal Case No. Q-04-128370. On the other hand, illegal possession of dangerous drugs is penalized under Section 11, Article II of Republic Act No. 9165, to wit: Section 11. Possession of Dangerous Drugs. - The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall possess any dangerous drug in the following quantities, regardless of the degree of purity thereof: x x x Otherwise, if the quantity involved is less than the foregoing quantities, the penalties shall be graduated as follows:

(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three hundred thousand pesos (P300,000.00) to Four hundred thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than five (5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, methamphetamine hydrochloride or "shabu", or other dangerous drugs such as, but not limited to, MDMA or "ecstasy", PMA, TMA, LSD, GHB, and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirements; or less than three hundred (300) grams of marijuana x x x. The foregoing provision specifically states that illegal possession of less than five (5) grams of said dangerous drug is penalized with imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three Hundred Thousand Pesos (P300,000.00) to Four Hundred Thousand 22 Pesos (P400,000.00). The evidence adduced by the prosecution in Criminal Case No. Q-04-128371 established beyond reasonable doubt that appellant, without any legal authority, had in his possession 0.27 gram of shabu or less than five (5) grams of dangerous drug. Applying the Indeterminate Sentence Law, the minimum period of the imposable penalty shall not fall below the minimum period set by the law; the maximum period shall not exceed the maximum period allowed under the law. Taking the foregoing into consideration, We find that the Court of Appeals erred in imposing the penalty of Three Hundred Thousand Pesos (P300,000.00) fine and imprisonment of six (6) years and one (1) day to eight (8) years only. Thus, the penalty of twelve (12) years and one (1) day to fourteen (14) years and fine of Three Hundred Thousand Pesos (P300,000.00) imposed by the RTC is proper. WHEREFORE, in view of all the foregoing, the 18 June 2008 Decision of the Court of Appeals in CA-G.R. HC No. 02762, finding appellant MICHAEL SEMBRANO y CASTRO guilty beyond reasonable doubt of the crimes of illegal sale and illegal possession of dangerous drugs is AFFIRMED with MODIFICATIONS. As modified, appellant is sentenced to suffer the indeterminate penalty of imprisonment ranging from twelve (12) years and one (1) day, as minimum, to fourteen (14) years, as maximum, and to pay a fine of Three Hundred Thousand Pesos (P300,000.00) in Criminal Case No. Q-04-128371, for illegal possession of dangerous drugs under Section 11, of Republic Act No. 9165. The penalties imposed in Criminal Case No. Q-04-128370, for illegal sale of dangerous drugs under Section 15, of Republic Act No. 9165, is sustained. SO ORDERED.

G.R. No. 128587

March 16, 2007

PEOPLE OF THE PHILIPPINES, Petitioner, vs. HON. PERFECTO A.S. LAGUIO, JR., in his capacity as Presiding Judge, Branch 18, RTC, Manila, and LAWRENCE WANG Y CHEN, Respondents. DECISION GARCIA, J.: On pure questions of law, petitioner People of the Philippines has directly come to this Court via this 1 petition for review on certiorari to nullify and set aside the Resolution dated 13 March 1997 of the Regional Trial Court of Manila, Branch 18, in Criminal Case Nos. 96-149990 to 96-149992, entitled People of the Philippines v. Lawrence Wang y Chen, granting private respondent Lawrence C. Wangs Demurrer to Evidence and acquitting him of the three (3) charges filed against him, namely: (1) Criminal Case No. 96-149990 for Violation of Section 16, Article III in relation to Section 2(e)(2), Article I of Republic Act (R.A.) No. 6425 (Dangerous Drugs Act); (2) Criminal Case No. 96-149991 for Violation of Presidential Decree No. 1866 (Illegal Possession of Firearms); and (3) Criminal Case No. 96-149992 for Violation of Comelec Resolution No. 2828 in relation to R.A. No. 7166 (COMELEC Gun Ban). The three (3) separate Informations filed against Lawrence C. Wang in the court of origin respectively read: Criminal Case No. 96-149990 (Violation of Dangerous Drugs Act): That on or about the 17th day of May 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 a bulk of white and yellowish crystalline substance known as SHABU contained in thirty-two (32) transparent plastic bags weighing approximately 29.2941 kilograms, containing methamphetamine hydrochloride, a regulated drug, without the corresponding license or prescription therefor. Contrary to law.
2

Criminal Case No. 96-149991 (Illegal Possession of Firearms): That on or about the 17th day of May 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) DAEWOO Cal. 9mm, automatic pistol with one loaded magazine and one AMT Cal. .380 9mm automatic backup pistol with magazine loaded with ammunitions without first having secured the necessary license or permit therefor from the proper authorities. Contrary to law.
3

Criminal Case No. 96-149992 (Violation of Comelec Gun Ban): That on or about the 17th day of May 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) DAEWOO Cal. 9mm automatic pistol with one loaded magazine and one (1) AMT Cal. 380 9mm automatic backup pistol with magazine loaded with ammunitions, carrying the same along Maria Orosa St., Ermita, Manila, which is a public place, on the date which is covered by an election period, without first securing the written permission or authority from the Commission on Elections, as provided by the COMELEC Resolution 2828 in relation to Republic Act 7166.

Contrary to law.

During his arraignment, accused Wang refused to enter a plea to all the Informations and instead interposed a continuing objection to the admissibility of the evidence obtained by the police operatives. 5 Thus, the trial court ordered that a plea of "Not Guilty" be entered for him. Thereafter, joint trial of the three (3) consolidated cases followed. The pertinent facts are as follows: On 16 May 1996, at about 7:00 p.m., police operatives of the Public Assistance and Reaction Against Crime of the Department of Interior and Local Government, namely, Captain Margallo, Police Inspector Cielito Coronel and SPO3 Reynaldo Cristobal, arrested SPO2 Vergel de Dios, Rogelio Anoble and a certain Arellano, for unlawful possession of methamphetamine hydrochloride, a regulated drug popularly known as shabu. In the course of the investigation of the three arrested persons, Redentor Teck, alias Frank, and Joseph Junio were identified as the source of the drug. An entrapment operation was then set after the three were prevailed upon to call their source and pretend to order another supply of shabu. At around 11:00 p.m. that same date, Redentor Teck and Joseph Junio were arrested while they were about to hand over another bag of shabu to SPO2 De Dios and company. Questioned, Redentor Teck and Joseph Junio informed the police operatives that they were working as talent manager and gymnast instructor, respectively, of Glamour Modeling Agency owned by Lawrence Wang. Redentor Teck and 6 Joseph Junio did not disclose their source of shabu but admitted that they were working for Wang. They also disclosed that they knew of a scheduled delivery of shabu early the following morning of 17 May 1996, and that their employer (Wang) could be found at the Maria Orosa Apartment in Malate, Manila. The police operatives decided to look for Wang to shed light on the illegal drug activities of Redentor Teck and Joseph Junio. Police Inspector Cielito Coronel and his men then proceeded to Maria Orosa Apartment and placed the same under surveillance. Prosecution witness Police Inspector Cielito Coronel testified that at about 2:10 a.m. of 17 May 1996, Wang, who was described to the operatives by Teck, came out of the apartment and walked towards a parked BMW car. On nearing the car, he (witness) together with Captain Margallo and two other police officers approached Wang, introduced themselves to him as police officers, asked his name and, upon hearing that he was Lawrence Wang, immediately frisked him and asked him to open the back 7 compartment of the BMW car. When frisked, there was found inside the front right pocket of Wang and confiscated from him an unlicensed AMT Cal. 380 9mm automatic Back-up Pistol loaded with ammunitions. At the same time, the other members of the operatives searched the BMW car and found inside it were the following items: (a) 32 transparent plastic bags containing white crystalline substance with a total weight of 29.2941 kilograms, which substance was later analyzed as positive for methamphetamine hydrochloride, a regulated drug locally known as shabu; (b) cash in the amount of P650,000.00; (c) one electronic and one mechanical scales; and (d) an unlicensed Daewoo 9mm Pistol 8 with magazine. Then and there, Wang resisted the warrantless arrest and search. On 6 December 1996, the prosecution rested its case and upon motion, accused Wang was granted 25 9 days from said date within which to file his intended Demurrer to Evidence. On 19 December 1996, the 10 prosecution filed a Manifestation to the effect that it had rested its case only in so far as the charge for Violation of the Dangerous Drugs Act in Criminal Case No. 96-149990 is concerned, and not as regards the two cases for Illegal Possession of Firearms (Crim. Case No. 96-149991) and Violation of the Comelec Gun Ban (Crim. Case No. 96-149992). Accordingly, trial continued. On 9 January 1997, Wang filed his undated Demurrer to Evidence, praying for his acquittal and the dismissal of the three (3) cases against him for lack of a valid arrest and search warrants and the inadmissibility of the prosecutions evidence against him. Considering that the prosecution has not yet 12 filed its Opposition to the demurrer, Wang filed an Amplification to his Demurrer of Evidence on 20 13 January 1997. On 12 February 1997, the prosecution filed its Opposition alleging that the warrantless
11

search was legal as an incident to the lawful arrest and that it has proven its case, so it is now time for the defense to present its evidence. On 13 March 1997, the respondent judge, the Hon. Perfecto A.S. Laguio, Jr., issued the herein assailed 14 Resolution granting Wangs Demurrer to Evidence and acquitting him of all charges for lack of evidence, thus: WHEREFORE, the accused's undated Demurrer to Evidence is hereby granted; the accused is acquitted of the charges against him for the crimes of Violation of Section 16, Article III of the Dangerous Drugs Act, Illegal Possession of Firearms, and Violation of Comelec Gun Ban, for lack of evidence; the 32 bags of shabu with a total weight of 29.2941 kilograms and the two unlicensed pistols, one AMT Cal. .380 9mm and one Daewoo Cal. 9mm. are ordered confiscated in favor of the government and the branch clerk is directed to turn over the 32 bags of shabu to the Dangerous Drugs Board in Intramuros, Manila, and the two firearms to the Firearms and Explosive Units, PNP, Camp Crame, Quezon City, for proper disposition, and the officer-in-charge of PARAC, Department of Interior and Local Government, is ordered to return the confiscated amount of P650,000.00 to the accused, and the confiscated BMW car to its registered owner, David Lee. No costs. SO ORDERED. Hence, this petition
15

for review on certiorari by the People, submitting that the trial court erred I

XXX IN HOLDING THAT THE UNDISPUTED FACTS AND CIRCUMSTANCES DID NOT CONSTITUTE PROBABLE CAUSE WITHIN THE CONTEMPLATION OF SECTION 2, ARTICLE III OF THE CONSTITUTION, AND IN HOLDING THAT SUCH FACTS AND CIRCUMSTANCES NEITHER JUSTIFIED THE WARRANTLESS SEARCH OF ACCUSED'S VEHICLE AND THE SEIZURE OF THE CONTRABAND THEREIN. ll XXX IN HOLDING, IN EFFECT, THAT A WARRANTLESS SEARCH IS CONSTITUTIONALLY ALLOWABLE AND CAN ONLY BE VALID AS AN INCIDENT TO A LAWFUL ARREST. lII XXX IN DECLARING THE WARRANTLESS ARREST OF THE ACCUSED AND THE SEARCH AND SEIZURE OF HIS HANDGUNS UNLAWFUL. IV XXX IN NOT DECLARING THE ACCUSED AS HAVING WAIVED, AS A RESULT OF HIS SUBMISSION AND FAILURE TO PROTEST THE SEARCH AND HIS ARREST, HIS CONSTITUTIONAL RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE AND HIS OBJECTION TO THE ADMISSION OF THE EVIDENCE SEIZED. V XXX IN NOT ADMITTING IN EVIDENCE THE EVIDENCE SEIZED AND OFFERED BY THE PROSECUTION AND IN NOT DENYING ACCUSED'S DEMURRER TO EVIDENCE.

In its Resolution of 9 July 1997, the Court, without giving due course to the petition, required the public and private respondents to comment thereon within ten days from notice. Private respondent Wang filed 17 his comment on 18 August 1997. On 10 September 1997, the Court required the People to file a reply, 19 General did on 5 December 1997, after several extensions.
18

16

which the Office of the Solicitor

On 20 October 2004, the Court resolved to give due course to the petition and required the parties to 20 submit their respective memoranda, which they did. The case presents two main issues: (a) whether the prosecution may appeal the trial courts resolution granting Wangs demurrer to evidence and acquitting him of all the charges against him without violating the constitutional proscription against double jeopardy; and (b) whether there was lawful arrest, search and seizure by the police operatives in this case despite the absence of a warrant of arrest and/or a search warrant. First off, it must be emphasized that the present case is an appeal filed directly with this Court via a petition for review on certiorari under Rule 45 in relation to Rule 41, Section 2, paragraph (c) of the Rules of Court raising only pure questions of law, ordinary appeal by mere filing of a notice of appeal not being allowed as a mode of appeal directly to this Court. Then, too, it bears stressing that the right to appeal is neither a natural right nor a part of due process, it being merely a statutory privilege which may be 21 exercised only in the manner provided for by law (Velasco v. Court of Appeals ). Although Section 2, Rule 122 of the Rules on Criminal Procedure states that any party may appeal, the right of the People to appeal is, in the very same provision, expressly made subject to the prohibition against putting the accused in double jeopardy. It also basic that appeal in criminal cases throws the whole records of the case wide open for review by the appellate court, that is why any appeal from a judgment of acquittal necessarily puts the accused in double jeopardy. In effect, the very same Section 2 of Rule 122 of the Rules on Criminal Procedure, disallows appeal by the People from judgments of acquittal. An order granting an accuseds demurrer to evidence is a resolution of the case on the merits, and it amounts to an acquittal. Generally, any further prosecution of the accused after an acquittal would violate the constitutional proscription on double jeopardy. To this general rule, however, the Court has previously made some exceptions. The celebrated case of Galman v. Sandiganbayan presents one exception to the rule on double jeopardy, which is, when the prosecution is denied due process of law: No court whose Presiding Justice has received "orders or suggestions" from the very President who by an amendatory decree (disclosed only at the hearing of oral arguments on November 8, 1984 on a petition challenging the referral of the Aquino-Galman murder cases to the Tanodbayan and Sandiganbayan instead of to a court martial, as mandatorily required by the known P.D. 1850 at the time providing for exclusive jurisdiction of courts martial over criminal offenses committed by military men) made it possible to refer the cases to the Sandiganbayan, can be an impartial court, which is the very essence of due process of law. As the writer then wrote, "jurisdiction over cases should be determined by law, and not by preselection of the Executive, which could be much too easily transformed into a means of predetermining the outcome of individual cases." This criminal collusion as to the handling and treatment of the cases by public respondents at the secret Malacaang conference (and revealed only after fifteen months by Justice Manuel Herrera) completely disqualified respondent Sandiganbayan and voided ab initio its verdict. This renders moot and irrelevant for now the extensive arguments of respondents accused, particularly Generals Ver and Olivas and those categorized as accessories, that there has been no evidence or witness suppressed against them, that the erroneous conclusions of Olivas as police investigator do not make him an accessory of the crimes he investigated and the appraisal and evaluation of the testimonies of the witnesses presented and suppressed. There will be time and opportunity to
22

present all these arguments and considerations at the remand and retrial of the cases herein ordered before a neutral and impartial court. The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand unrectified. The courts of the land under its aegis are courts of law and justice and equity. They would have no reason to exist if they were allowed to be used as mere tools of injustice, deception and duplicity to subvert and suppress the truth, instead of repositories of judicial power whose judges are sworn and committed to render impartial justice to all alike who seek the enforcement or protection of a right or the prevention or redress of a wrong, without fear or favor and removed from the pressures of politics and prejudice. More so, in the case at bar where the people and the world are entitled to know the truth, and the integrity of our judicial system is at stake. In life, as an accused before the military tribunal Ninoy had pleaded in vain that as a civilian he was entitled to due process of law and trial in the regular civil courts before an impartial court with an unbiased prosecutor. In death, Ninoy, as the victim of the "treacherous and vicious assassination" and the relatives and sovereign people as the aggrieved parties plead once more for due process of law and a retrial before an impartial court with an unbiased prosecutor. The Court is constrained to declare the sham trial a mock trial the non-trial of the century and that the predetermined judgment of acquittal was unlawful and void ab initio. 1. No double jeopardy. It is settled doctrine that double jeopardy cannot be invoked against this Court's setting aside of the trial courts' judgment of dismissal or acquittal where the prosecution which represents the sovereign people in criminal cases is denied due process. As the Court stressed in the 1985 case of People vs. Bocar, Where the prosecution is deprived of a fair opportunity to prosecute and prove its case, its right to due process is thereby violated. The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. Thus, the violation of the State's right to due process raises a serious jurisdictional issue (Gumabon vs. Director of the Bureau of Prisons, L-30026, 37 SCRA 420 [Jan. 30, 1971]) which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction (Aducayen vs. Flores, L-30370 [May 25, 19731, 51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49 SCRA 416 Feb. 27, 1973]). Any judgment or decision rendered notwithstanding such violation may be regarded as a "lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever it exhibits its head" (Aducayen vs. Flores, supra). Respondent Judge's dismissal order dated July 7, 1967 being null and void for lack of jurisdiction, the same does not constitute a proper basis for a claim of double jeopardy (Serino vs. Zosa, supra). xxx xxx xxx Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea having been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused (People vs. Ylagan, 58 Phil. 851). The lower court was not competent as it was ousted of its jurisdiction when it violated the right of the prosecution to due process. In effect, the first jeopardy was never terminated, and the remand of the criminal case for further hearing and/or trial before the lower courts amounts merely to a continuation of the first jeopardy, and does not expose the accused to a second jeopardy. Another exception is when the trial court commits grave abuse of discretion in dismissing a criminal case 23 by granting the accuseds demurrer to evidence. In point is the fairly recent case of People v. Uy, which involved the trial courts decision which granted the two separate demurrers to evidence filed by the two

accused therein, both with leave of court, resulting in their acquittal of their respective charges of murder due to insufficiency of evidence. In resolving the petition for certiorari filed directly with this Court, we had the occasion to explain: The general rule in this jurisdiction is that a judgment of acquittal is final and unappealable. People v. Court of Appealsexplains the rationale of this rule: In our jurisdiction, the finality-of-acquittal doctrine as a safeguard against double jeopardy faithfully adheres to the principle first enunciated in Kepner v. United States. In this case, verdicts of acquittal are to be regarded as absolutely final and irreviewable. The cases of United States v. Yam Tung Way, People v. Bringas, Gandicela v. Lutero, People v. Cabarles, People v. Bao, to name a few, are illustrative cases. The fundamental philosophy behind the constitutional proscription against double jeopardy is to afford the defendant, who has been acquitted, final repose and safeguard him from government oppression through the abuse of criminal processes. As succinctly observed in Green v. United States "(t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty." (Underscoring supplied) The same rule applies in criminal cases where a demurrer to evidence is granted. As held in the case of People v. Sandiganbayan: The demurrer to evidence in criminal cases, such as the one at bar, is "filed after the prosecution had rested its case," and when the same is granted, it calls "for an appreciation of the evidence adduced by the prosecution and its sufficiency to warrant conviction beyond reasonable doubt, resulting in a dismissal of the case on the merits, tantamount to an acquittal of the accused." Such dismissal of a criminal case by the grant of demurrer to evidence may not be appealed, for to do so would be to place the accused in double-jeopardy. The verdict being one of acquittal, the case ends there. (Italics in the original) Like any other rule, however, the above-said rule is not absolute. By way of exception, a judgment of acquittal in a criminal case may be assailed in a petition for certiorari under Rule 65 of the Rules of Court upon a clear showing by the petitioner that the lower court, in acquitting the accused, committed not merely reversible errors of judgment but also grave abuse of discretion amounting to lack or excess of jurisdiction or a denial of due process, thus rendering the assailed judgment void. (Emphasis supplied.) In Sanvicente v. People, the Court allowed the review of a decision of the Court of Appeals (CA) which reversed the accuseds acquittal upon demurrer to evidence filed by the accused with leave of court, the CA ruling that the trial court committed grave abuse of discretion in preventing the prosecution from establishing the due execution and authenticity of certain letter marked therein as Exhibit "LL," which supposedly "positively identified therein petitioner as the perpetrator of the crime charged." The Court, in a petition for certiorari, sustained the CAs power to review the order granting the demurrer to evidence, explaining thus: Under Rule 119, Section 23 of the Revised Rules of Criminal Procedure, as amended, the trial court may dismiss the action on the ground of insufficiency of evidence upon a demurrer to evidence filed by the accused with or without leave of court. In resolving accuseds demurrer to evidence, the court is merely required to ascertain whether there is competent or sufficient evidence to sustain the indictment or support a verdict of guilt. The grant or denial of a demurrer to evidence is left to the sound discretion of the trial court and its ruling on the matter shall not be disturbed in the absence of a grave abuse of discretion. Significantly, once the court grants the demurrer, such order amounts to an acquittal and any further prosecution of the accused would violate the constitutional proscription on double jeopardy. This constitutes an exception to the rule
24

that the dismissal of a criminal case made with the express consent of the accused or upon his own motion bars a plea of double jeopardy. The finality-of-acquittal rule was stressed thus in People v. Velasco: The fundamental philosophy highlighting the finality of an acquittal by the trial court cuts deep into the "humanity of the laws and in jealous watchfulness over the rights of the citizens, when brought in unequal contest with the State xxx. Thus Green expressed the concern that "(t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty." It is axiomatic that on the basis of humanity, fairness and justice, an acquitted defendant is entitled to the right of repose as a direct consequence of the finality of his acquittal. The philosophy underlying this rule establishing the absolute nature of acquittals is "part of the paramount importance criminal justice system attaches to the protection of the innocent against wrongful conviction." The interest in the finality-ofacquittal rule, confined exclusively to verdicts of not guilty, is easy to understand: it is a need for "repose", a desire to know the exact extent of ones liability. With this right of repose, the criminal justice system has built in a protection to insure that the innocent, even those whose innocence rests upon a jurys leniency, will not be found guilty in a subsequent proceeding. Given the far-reaching scope of an accuseds right against double jeopardy, even an appeal based on an alleged misappreciation of evidence will not lie. The only instance when double jeopardy will not attach is when the trial court acted with grave abuse of discretion amounting to lack or excess of jurisdiction, such as where the prosecution was denied the opportunity to present its case or where the trial was a sham. However, while certiorari may be availed of to correct an erroneous acquittal, the petitioner in such an extraordinary proceeding must clearly demonstrate that the trial court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice. (Emphasis supplied.) By this time, it is settled that the appellate court may review dismissal orders of trial courts granting an accuseds demurrer to evidence. This may be done via the special civil action of certiorari under Rule 65 based on the ground of grave abuse of discretion, amounting to lack or excess of jurisdiction. Such dismissal order, being considered void judgment, does not result in jeopardy. Thus, when the order of dismissal is annulled or set aside by an appellate court in an original special civil action via certiorari, the right of the accused against double jeopardy is not violated. Unfortunately, what petitioner People of the Philippines, through then Secretary of Justice Teofisto T. Guingona, Jr. and then Solicitor General Silvestre H. Bello, III, filed with the Court in the present case is an appeal by way of a petition for review on certiorari under Rule 45 raising a pure question of law, which is different from a petition for certiorari under Rule 65. In Madrigal Transport Inc. v. Lapanday Holdings Corporation, between the two remedies/actions, to wit: Appeal and Certiorari Distinguished Between an appeal and a petition for certiorari, there are substantial distinctions which shall be explained below. As to the Purpose. Certiorari is a remedy designed for the correction of errors of jurisdiction, not errors of judgment. In Pure Foods Corporation v. NLRC, we explained the simple reason for the rule in this light:
25

we have enumerated the distinction

"When a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error is committed. If it did, every error committed by a court would deprive it of its jurisdiction and every erroneous judgment would be a void judgment. This cannot be allowed. The administration of justice would not survive such a rule. Consequently, an error of judgment that the court may commit in the exercise of its jurisdiction is not correct[a]ble through the original civil action of certiorari." The supervisory jurisdiction of a court over the issuance of a writ of certiorari cannot be exercised for the purpose of reviewing the intrinsic correctness of a judgment of the lower court -- on the basis either of the law or the facts of the case, or of the wisdom or legal soundness of the decision. Even if the findings of the court are incorrect, as long as it has jurisdiction over the case, such correction is normally beyond the province of certiorari. Where the error is not one of jurisdiction, but of an error of law or fact -- a mistake of judgment -- appeal is the remedy. As to the Manner of Filing. Over an appeal, the CA exercises its appellate jurisdiction and power of review. Over a certiorari, the higher court uses its original jurisdiction in accordance with its power of control and supervision over the proceedings of lower courts. An appeal is thus a continuation of the original suit, while a petition for certiorari is an original and independent action that was not part of the trial that had resulted in the rendition of the judgment or order complained of. The parties to an appeal are the original parties to the action. In contrast, the parties to a petition for certiorari are the aggrieved party (who thereby becomes the petitioner) against the lower court or quasi-judicial agency, and the prevailing parties (the public and the private respondents, respectively). As to the Subject Matter. Only judgments or final orders and those that the Rules of Court so declared are appealable. Since the issue is jurisdiction, an original action for certiorari may be directed against an interlocutory order of the lower court prior to an appeal from the judgment; or where there is no appeal or any plain, speedy or adequate remedy. As to the Period of Filing. Ordinary appeals should be filed within fifteen days from the notice of judgment or final order appealed from. Where a record on appeal is required, the appellant must file a notice of appeal and a record on appeal within thirty days from the said notice of judgment or final order. A petition for review should be filed and served within fifteen days from the notice of denial of the decision, or of the petitioners timely filed motion for new trial or motion for reconsideration. In an appeal by certiorari, the petition should be filed also within fifteen days from the notice of judgment or final order, or of the denial of the petitioners motion for new trial or motion for reconsideration. On the other hand, a petition for certiorari should be filed not later than sixty days from the notice of judgment, order, or resolution. If a motion for new trial or motion for reconsideration was timely filed, the period shall be counted from the denial of the motion. As to the Need for a Motion for Reconsideration. A motion for reconsideration is generally required prior to the filing of a petition for certiorari, in order to afford the tribunal an opportunity to correct the alleged errors. Note also that this motion is a plain and adequate remedy expressly available under the law. Such motion is not required before appealing a judgment or final order. Also in Madrigal, we stressed that the special civil action of certiorari and appeal are two different remedies mutually exclusive; they are neither alternative nor successive. Where appeal is available, certiorari will not prosper. In the dismissal of a criminal case upon demurrer to evidence, appeal is not available as such an appeal will put the accused in double jeopardy. Certiorari, however, is allowed. For being the wrong remedy taken by petitioner People of the Philippines in this case, this petition is outrightly dismissible. The Court cannot reverse the assailed dismissal order of the trial court by appeal without violating private respondents right against double jeopardy.

Even assuming that the Court may treat an "appeal" as a special civil action of certiorari, which definitely this Court has the power to do, when there is a clear showing of grave abuse of discretion committed by the lower court, the instant petition will nevertheless fail on the merits as the succeeding discussion will show. There are actually two (2) acts involved in this case, namely, the warrantless arrest and the warrantless search. There is no question that warrantless search may be conducted as an incident to a valid warrantless arrest. The law requires that there be first a lawful arrest before a search can be made; the 26 process cannot be reversed. However, if there are valid reasons to conduct lawful search and seizure which thereafter shows that the accused is currently committing a crime, the accused may be lawfully 27 arrested in flagrante delicto without need for a warrant of arrest. Finding that the warrantless arrest preceded the warrantless search in the case at bar, the trial court granted private respondent's demurrer to evidence and acquitted him of all the three charges for lack of evidence, because the unlawful arrest resulted in the inadmissibility of the evidence gathered from an invalid warrantless search. The trial courts ratiocination is quoted as follows: The threshold issue raised by the accused in his Demurrer to Evidence is whether his warrantless arrest and search were lawful as argued by the prosecution, or unlawful as asserted by the defense. Under Section 5, Rule 113 of the New Rules of Court, a peace officer may arrest a person without a warrant: (a) when in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) when an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it, and (c) when the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while being transferred from one confinement to another. None of these circumstances were present when the accused was arrested. The accused was merely walking from the Maria Orosa Apartment and was about to enter the parked BMW car when the police officers arrested and frisked him and searched his car. The accused was not committing any visible offense at the time of his arrest. Neither was there an indication that he was about to commit a crime or that he had just committed an offense. The unlicensed AMT Cal.380 9mm Automatic Back-up Pistol that the accused had in his possession was concealed inside the right front pocket of his pants. And the handgun was bantam and slim in size that it would not give an outward indication of a concealed gun if placed inside the pant's side pocket as was done by the accused. The arresting officers had no information and knowledge that the accused was carrying an unlicensed handgun, nor did they see him in possession thereof immediately prior to his arrest. Ditto on the 32 bags of shabu and the other unlicensed Daewoo Cal. 9mm Pistol with magazine that were found and seized from the car. The contraband items in the car were not in plain view. The 32 bags of shabu were in the trunk compartment, and the Daewoo handgun was underneath the drivers seat of the car. The police officers had no information, or knowledge that the banned articles were inside the car, or that the accused had placed them there. The police officers searched the car on mere suspicion that there was shabu therein. On this matter, pertinent portions of the testimonies of Police Inspector Cielito Coronel and SP03 Reynaldo are hereunder quoted: POLICE INSPECTOR CIELITO CORONELS TESTIMONY "PROSECUTOR TO WITNESS: Direct-Examination Q. Mr. Witness, what was your role or participation in this case? A. I am one of those responsible for the arrest of the accused.

xxx xxx xxx Q. Where did you make that arrest, Mr. Witness? A. The apprehension was made in front of an apartment along Maria Orosa Street, Ermita, Manila. Q. What date was that when you arrested the accused? A. It was on May 17, 1996, at about 2:10 a.m. xxx xxx xxx Q. What was the reason why you together with other policemen effected the arrest of the accused? A. We arrested him because of the information relayed to us by one of those whom we have previously apprehended in connection with the delivery of shabu somewhere also in Ermita, Manila. xxx xxx xxx Q. When you established that he was somewhere at Maria Orosa, what did you do? A. We waited for him. xxx xxx xxx Q. You yourself, Mr. Witness, where did you position yourself during that time? A. I was inside a vehicle waiting for the accused to appear. Q. What about your other companions where were they? A. They were position in strategic places within the area. Q. What happened when you and your companions were positioned in that place? A. That was when the accused arrived. Q. How many of your approached him. A. Inspector Margallo, myself and two other operatives. Q. What happened when you approached the accused, Mr. Witness? A. We introduced ourselves as police officers and we frisked him and we asked him to open the back compartment of his car. Q. You said you frisked him, what was the result of that? A. He was found in possession of one back-up pistol with one loaded magazine and likewise when the compartment was opened several plastic bags containing white crystalline substance suspected to be shabu (were found).

Q. What did you do when you found out Mr. Witness? A. When the car was further search we later found another firearm, a Daewoo Pistol at the place under the seat of the driver. Q. Then what happened? A. He was brought to our headquarters at Mandaluyong for further investigation. Q. What about the suspected shabu that you recovered, what did you do with that? A. The suspected shabu that we recovered were forwarded to the NBI for laboratory examination. Q. Did you come to know the results? A. It was found positive for methamphetamine hydrochloride. (TSN, pp. 3-8, November 15, 1996). ATTY. LOZANO TO WITNESS: CROSS Q. You arrested Joseph Junio and Redentor Teck for alleged transporting of shabu on May 16, 1996, at 11:00 p.m., is it not? A. Yes, Sir. Q. You asked Redentor Teck where he is employed, is it not? A. Yes, Sir. xxx xxx xxx Q. Redentor Teck told you that he is a talent manager at the Glenmore Modeling Agency, is it not? A. Yes, Sir. .Q. The Glenmore Modeling Agency is owned by Lawrence Wang, is it not? A. I supposed, Sir. Q. And that is why immediately after Redentor Teck told you that he is an employee of the Glenmore Modeling Agency owned by Lawrence Wang, naturally, you and your companions look for Lawrence Wang to shed light on the transporting of shabu by Redentor Teck and Joseph Junio, is it not? A. Yes, Sir. Q. Thereafter, you spotted a person previously described by Redentor Teck as Lawrence Wang, is it not? A. Yes, Sir. Q. While you were arresting Lawrence Wang, your companions at the same time searched the BMW car described in your affidavit of arrest, is it not?

A. Yes, Sir. xxx xxx xxx Q. Lawrence Wang was not inside the BMW car while the same was searched, is it not? A. He was outside, Sir. Q. The driver of the car was inside the car when the arrest and search were made, is it not? A. He was likewise outside, Sir. Q. Lawrence Wang did resist arrest and search is it not? A. Yes, Sir. Q. When you effected the arrest, there was no warrant of arrest, is it not? A. Yes, Sir. Q. When the search was made on the BMW car, there was no search warrant, is it not? A. Yes, none, Sir. (TSN, pp. 3-12, November 15, 1996) SPO3 REYNALDO CRISTOBALS TESTIMONY PROSECUTOR TO WITNESS: DIRECT EXAMINATION Q. What is you role or participation in this case? A. I was one of the arresting officers and investigator, Sir. xxx xxx xxx Q. What kind of specific offense did the accused allegedly do so that you arrested him, Mr. Witness? A. He was arrested on the basis of the recovered drugs in his possession placed inside his car. xxx xxx xxx Q. Mr. witness, you said that you recovered drug from the car of the accused, please tell us the antecedent circumstances which led you to recover or confiscate these items? A. Earlier in the evening about 11:00 p.m. of May 16, we arrested one Redentor Teck and Joseph Junio. COURT: Where did you arrest these people? A They were arrested in Metro Manila also. COURT: The same date?

A. May 16, about 11:00 p.m. They were arrested and when they were investigated, Teck mentioned the name of Lawrence Wang as his employer. COURT: Why were these people, arrested? A. For violation of R.A. 6425. COURT: How were they arrested? A. They were arrested while in the act of transporting shabu or handling shabu to another previously arrested person. It was a series of arrest. COURT: So, this involved a series of operation? A. Yes, Your Honor. About 11:00 p.m. of May 16, we arrested three (3) persons, SPO2 Vergel de Dios, a certain Arellano and a certain Rogelio Noble. When they were arrested they divulged the name of the source. COURT: They were arrested for what, for possession? A. Yes, Your Honor. For unlawful possession of shabu . Then they divulged to us the name of the person from whom they get shabu. COURT: Whose name did they mention: A. One Alias Frank, who turned out to be Redentor Teck and Joseph Junio. We let them call Redentor Teck and Joseph Junio thru the cellphone and pretend and to order another supply of shabu. COURT: So there was an entrapment? A. Yes, Your Honor. COURT: So, these two (2) were arrested? A. While they were about to hand over another bag of shabu to Noble and company. COURT: And these two reveals (revealed) some information to you as to the source of the shabu? A. Yes, Your Honor. COURT: What was the information? A. Teck told us that he is an employee of Lawrence Wang. COURT: What did you do when you were told about that? A. They also told us that there was an ongoing delivery of shabu on that morning. COURT: When? A. Of that date early morning of May 17, 1996.

COURT: At what place? A. We asked them where we could find Lawrence Wang and Teck lead us to Maria Orosa Apartment where we conducted a stake out which lasted up to 2:00 a.m. xxx xxx xxx COURT: What happened during the stake out? A. When the person of the accused was identified to us, we saw him opening his car together with his driver. COURT: So, he was about to leave when you saw him? A. Probably, Sir. COURT: What did you do? A. We saw him opened his car and we have a suspicion that there was a shabu inside the compartment of the car. xxx xxx xxx COURT: All right, when you saw the accused opened his car, what did you do? A. We approached him. COURT: What happened when you approached him? A. We suspected the shabu inside the compartment of his car. COURT: And this shabu that you saw inside the compartment of the car, what did you do with that? A. Well, he was first arrested by Captain Margallo and Lt. Coronel while I was the one who inspected and opened the compartment of the car and saw the shabu. (TSN, pp. 15-24, December 16, 1996). CLARIFICATORY QUESTIONING OF SPO3 CRISTOBAL BY THE COURT COURT: From your testimony and that of Police Inspector Cielito Coronel, this Court has gathered that prior to the arrest of the accused there were three (3) men that your team arrested. One of whom is a police officer. A: Yes, Sir. xxx xxx xxx COURT: And on the occasion of the arrest of these three men shabu were confiscated from them? A: Yes, Sir.

Q: And in the course of the investigation of these three men, you were able to discover that Redentor Teck and Joseph Junio were the source of the regulated drug that were confiscated from the three men that you have arrested? A: Yes, Sir. Q: Now, thru entrapment base[d] on your testimony you were able to apprehend also these two men, Redentor Teck and Joseph Junio? A: Yes, Sir. xxx xxx xxx Q: These two men, Redentor Teck and Joseph Junio they were also investigated by your team? A: Yes, Sir. Q: You were present while they were investigated? A: I was the one whom investigated them. xxx xxx xxx Q: Did you ask Redentor and Joseph the source of shabu that you confiscated from them at the time of the (their) arrest? A: Yes, Sir. They refuse to say the source, however, they told me that they were working for the accused. Q: You also testified that Redentor informed you that there was another delivery of shabu scheduled that morning of (stop) was it May 16 or 17? The other delivery that is scheduled on? A: On the 17th. xxx xxx xxx Q: Did he tell you who was to make the delivery? A: No, Sir. xxx xxx xxx Q: At that time when you decided to look for the accused to ask him to shed light on the matter concerning the arrest of these two employees in possession of shabu. Did you and did your team suspect the accused as being involved in the transaction that lead (led) to the arrest of Redentor and Joseph? A: Yes, Sir. We suspected that he was the source of the shabu. xxx xxx xxx Q: When you saw the accused walking towards his car, did you know whether he was carrying a gun?

A: No, Sir. It cannot be seen. Q: It was concealed? A: Yes, Sir. Q: So, the only time that you and your team learned that he was in possession of the gun is when he was bodily search? A: Yes, Sir. That is the only time that I came to know about when Capt. Margallo handed to me the gun. Q: Other than walking towards his car, the accused was not doing anything else? A: None, Sir. Q: That would invite your suspicion or give indication that he was intending to do something unlawful or illegal? A: No, Sir. Q: When you searched the car, did the accused protest or try to prevent your team from searching his car? A: No, Sir." (TSN pp. 3-16, Feb. 26, 1997) Clearly therefore, the warrantless arrest of the accused and the search of his person and the car were without probable cause and could not be licit. The arrest of the accused did not fall under any of the exception to the requirements of warrantless arrests, (Sec. 5, Rule 113, Rules of Court) and is therefore, unlawful and derogatory of his constitutional right of liberty. x x x The trial court resolved the case on the basis of its findings that the arrest preceded the search, and finding no basis to rule in favor of a lawful arrest, it ruled that the incidental search is likewise unlawful. Any and all pieces of evidence acquired as a consequence thereof are inadmissible in evidence. Thus, the trial court dismissed the case for lack of evidence. Contrary to its position at the trial court, the People, however, now posits that "inasmuch as it has been shown in the present case that the seizure without warrant of the regulated drugs and unlicensed firearms in the accuseds possession had been validly made upon probable cause and under exigent circumstances, then the warrantless arrest of the accused must necessarily have to be regarded as having been made on the occasion of the commission of the crime in flagrante delicto, and therefore 28 constitutionally and statutorily permissible and lawful." In effect, the People now contends that the warrantless search preceded the warrantless arrest. Since the case falls under an exception to the general rule requiring search warrant prior to a valid search and seizure, the police officers were justified in requiring the private respondent to open his BMW cars trunk to see if he was carrying illegal drugs. The conflicting versions as to whether the arrest preceded the search or vice versa, is a matter of credibility of evidence. It entails appreciation of evidence, which may be done in an appeal of a criminal case because the entire case is thrown open for review, but not in the case of a petition for certiorari where the factual findings of the trial court are binding upon the Court. Since a dismissal order consequent to a demurrer to evidence is not subject to appeal and reviewable only by certiorari, the factual finding that the arrest preceded the search is conclusive upon this Court. The only legal basis for this Court to possibly reverse and set aside the dismissal order of the trial court upon demurrer to

evidence would be if the trial court committed grave abuse of discretion in excess of jurisdiction when it ruled that there was no legal basis to lawfully effect a warrantless arrest. The pertinent provisions of Rule 113 of the Rules on Criminal Procedure on warrantless arrest provide: Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person: a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. Section 5, above, provides three (3) instances when warrantless arrest may be lawfully effected: (a) arrest of a suspect in flagrante delicto; (b) arrest of a suspect where, based on personal knowledge of the arresting officer, there is probable cause that said suspect was the author of a crime which had just been committed; (c) arrest of a prisoner who has escaped from custody serving final judgment or temporarily confined while his case is pending. For a warrantless arrest of an accused caught in flagrante delicto under paragraph (a) of Section 5 to be valid, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is 29 done in the presence or within the view of the arresting officer. 1awphi1.nt The facts and circumstances surrounding the present case did not manifest any suspicious behavior on the part of private respondent Lawrence Wang that would reasonably invite the attention of the police. He was merely walking from the Maria Orosa Apartment and was about to enter the parked BMW car when the police operatives arrested him, frisked and searched his person and commanded him to open the compartment of the car, which was later on found to be owned by his friend, David Lee. He was not committing any visible offense then. Therefore, there can be no valid warrantless arrest in flagrante delicto under paragraph (a) of Section 5. It is settled that "reliable information" alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, is not 30 sufficient to constitute probable cause that would justify an in flagrante delicto arrest. Neither may the warrantless arrest be justified under paragraph (b) of Section 5. What is clearly established from the testimonies of the arresting officers is that Wang was arrested mainly on the information that he was the employer of Redentor Teck and Joseph Junio who were previously arrested and charged for illegal transport of shabu. Teck and Junio did not even categorically identify Wang to be their source of the shabu they were caught with in flagrante delicto. Upon the duos declaration that there will be a delivery of shabu on the early morning of the following day, May 17, which is only a few hours thereafter, and that Wang may be found in Maria Orosa Apartment along Maria Orosa Street, the arresting officers conducted "surveillance" operation in front of said apartment, hoping to find a person which will match the description of one Lawrence Wang, the employer of Teck and Junio. These circumstances do not sufficiently establish the existence of probable cause based on personal knowledge as required in paragraph (b) of Section 5. And doubtless, the warrantless arrest does not fall under paragraph (c) of Section 5.

The inevitable conclusion, as correctly made by the trial court, is that the warrantless arrest was illegal. Ipso jure, the warrantless search incidental to the illegal arrest is likewise unlawful. In People v. Aminnudin, the Court declared as inadmissible in evidence the marijuana found in appellants possession during a search without a warrant, because it had been illegally seized, in disregard of the Bill of Rights: In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became a suspect and so subject to apprehension. It was the fugitive finger that triggered his arrest. The identification of the informer was the probable cause as determined by the officer (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him. The Peoples contention that Wang waived his right against unreasonable search and seizure has no factual basis. While we agree in principle that consent will validate an otherwise illegal search, however, based on the evidence on record, Wang resisted his arrest and the search on his person and 32 belongings. The implied acquiescence to the search, if there was any, could not have been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no 33 consent at all within the purview of the constitutional guarantee. Moreover, the continuing objection to the validity of the warrantless arrest made of record during the arraignment bolsters Wangs claim that he resisted the warrantless arrest and search. We cannot close this ponencia without a word of caution: those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes once said, "I think it is less evil that some criminals should escape than that the government should play an ignoble part." It is simply not allowed in free society to violate a 34 law to enforce another, especially if the law violated is the Constitution itself. WHEREFORE, the instant petition is DENIED. SO ORDERED.
31

G.R. No. 183656

September 4, 2009

GILBERT ZALAMEDA, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION BRION, J.: We review in this petition for review on certiorari the decision and resolution of the Court of Appeals (CA) in CA-G.R. CR No. 30061 that affirmed the February 8, 2006 decision of the Regional Trial Court 3 (RTC), Branch 64, Makati City. This RTC decision found petitioner Gilbert Zalameda (petitioner) guilty of 4 violating Section 11 of Republic Act (R.A.) No. 9165 (The Comprehensive Dangerous Drugs Act of 2002), and sentenced him to suffer the indeterminate penalty of imprisonment for twelve (12) years and one (1) day, as minimum, to fourteen (14) years, as maximum. The trial court likewise found the petitioner 5 and his co-accused Albert Villaflor (Villaflor) guilty of violating Section 12 of R.A. No. 9165, and sentenced them to suffer the indeterminate penalty of imprisonment for four (4) months and one (1) day, as minimum, to two (2) years and seven (7) months, as maximum. The prosecution charged the petitioner before the RTC with violation of Section 11, Article II of R.A. No. 9165 under the following Information: Criminal Case No. 03-3559 That on or about the 14th day of September, 2003, in the City of Makati, Philippines, and a place within the jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized to possess any dangerous drug and without the corresponding license or prescription, did then and there willfully, unlawfully and feloniously possess one (1) heat sealed transparent plastic sachet containing zero point zero three (0.03) gram of Methylampethamine Hydrochloride (shabu), which is a dangerous drug. CONTRARY TO LAW.
6 1 2

The petitioner and Villaflor were likewise charged before the same court with violation of Section 12, Article II of R.A. No. 9165. The Information for this charge reads: Criminal Case No. 03-3560 That on or about the 14th day of September 2003, in the City of Makati, Philippines and a place within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping and aiding one another, not being lawfully authorized to carry dangerous paraphernalia, did then and there willfully, unlawfully and feloniously have in their possession two (2) aluminum foil strips and three (3) unsealed transparent sachets with traces of Methylamphetamine Hydrochloride, three (3) other pieces of aluminum foils strips, one (1) stainless scissor and one (1) disposable lighter which are instruments, apparatuses or paraphernalia fit or intended for ingesting or introducing any dangerous drug into the body. CONTRARY TO LAW.
7

The petitioner and Villaflor pleaded not guilty to the charges. During pre-trial, the prosecution and the defense stipulated on the following: PRE-TRIAL ORDER

xxx 1. That these cases were investigated by PO1 Alex Inopia; 2. That after the investigation of PO1 Alex Inopia, he prepared the Final Investigation Report; 3. That the Drug Enforcement Unit through SPO4 Arsenio Mangulabnan made a Request for Laboratory Examination; 4. That the PNP Crime Laboratory through Police Inspector Karen Palacios conducted an examination on the specimen submitted; 5. That Physical Science Report was issued by PNP Crime Laboratory Office detailing the findings of the Forensic Chemist; and 6. The qualification of the Forensic Chemist. The prosecution marked the following exhibits: A Final Investigation Report A-1 Signature of PO1 Alex Inopia A-2 Signature of SPO4 Arsenio Mangulabnan B Request for Laboratory Examination B-1 Signature of SPO4 Arsenio Mangulabnan C Duplicate Copy of Physical Science Report C-1 Signature of Karen Palacios D Original Copy of Physical Science Report D-1 Signature of Karen Palacios D-2 Signature of Engr. Richard Allan B. Mangalip D-3 Signature of Juanita A. Ramos The prosecution reserved its right to present and mark additional exhibits in the course of the trial. The defense did not mark any exhibit but reserved the right to present and mark them in the course of the trial. With the stipulation entered into by the prosecution and the defense, the testimony of Forensic Chemist Karen S. Palacios is dispensed with. Pre-trial is terminated.
9

Joint trial on the merits followed. The essential facts, based on the records, are summarized below. At around 5:15 a.m. of September 14, 2003, SPO4 Mignelito Orbeta (SPO4 Orbeta), the desk officer of Precinct 1, Makati City, received a phone call from a concerned citizen regarding an on-going "pot 10 11 session" at 2725 D. Gomez St., Barangay Tejeros, Makati City. The house number was specified. Acting on this information, SPO4 Orbeta dispatched PO2 Faustino De Guia (PO2 De Guia), PO2 Renato De Guzman, (PO2 De Guzman), PO2 Gonzalo Acnam, PO1 Donie Tidang (PO1 Tidang), and one Major 12 Ancheta to D. Gomez St., Barangay Tejeros to verify the report. They were in uniform. They reached their intended destination at 5:25 a.m. which they found to be a house three by six (3 x 6) meters 13 located along D. Gomez St. They found the door of the house slightly open. PO2 De Guzman peeped 14 15 inside and saw the petitioner and Villaflor sniffing smoke "may sinisinghot sila na usok" while 16 sitting on a bed. PO2 De Guzman gave a "thumbs-up" sign to his companions who joined him in immediately rushing inside the house. Villaflor was holding a tooter at that point, which he threw 17 away. The petitioner initially showed resistance when the police introduced themselves as law 18 19 enforcers. They frisked the petitioner and Villafor in accordance with police procedure, and recovered from the petitioners right pocket a rectangular plastic sachet containing white crystalline 20 substances. The police likewise found on top of the bed aluminum foils (later confirmed to have traces of shabu), three (3) plastic sachets containing traces of white crystalline substance, a pair of scissors, a 21 disposable lighter, a bag with a plastic zipper, and an improvised tooter. The police handcuffed the petitioner and Villaflor, informed them of their rights and their violation of R.A. No. 9165, and brought 22 them to the police station. At the police station, PO2 De Guzman marked the confiscated items, and turned them and the suspects to SPO4 Arsenio Mangulabnan (SPO4 Mangulabnan). The latter prepared a request for laboratory 24 examination; immediately after, the seized items were brought to the PNP Crime Laboratory for analysis and examination. Police Inspector Karen S. Palacios (Police Inspector Palacios), Forensic Chemical 25 Officer of the PNP Crime Laboratory, conducted an examination on the specimens submitted, and found 26 them to be positive for the presence of shabu. Urine tests conducted on the petitioner and Villaflor also 27 yielded a positive result. The petitioner presented a different version of the events and narrated that he and Villaflor were talking at around 11:47 p.m. of September 13, 2003 when four men in civilian clothes barged into his house on D. 28 Gomez Street. The door at that time was closed but not locked. These men ordered them to stand, and 29 then handcuffed them. PO2 De Guzman frisked him and found P100.00 in his pocket. PO1 Tidang then 30 conducted a search on the room. Afterwards, the police brought them to Precinct 1 where they were detained. At the police station, the police asked them whether they had money to give in exchange for their liberty (i.e. "pang-areglo"). The police initially demandedP20,000.00, but the petitioner and Villaflor 31 answered that they did not have this amount. The petitioner likewise denied that he and Villaflor were 32 using drugs when the police entered his house. On cross examination, he testified that Villaflor was a friend of his sister, Julie; and that the latter requested Villaflor to borrow money from their (his sisters and his) mother, whose house was located in a 33 34 nearby street. The money was for the baptism of Julies daughter scheduled for the next day. He did 35 not anymore accompany Villaflor to his mothers house because her mother was already asleep. He 36 declared that he did not personally know the persons who arrested them prior to their arrest. He also added that PO2 De Guzman demanded P20,000.00 from him in exchange for his liberty. The RTC, in its decision of February 8, 2006, convicted the petitioner and Villaflor of the crimes charged, 37 and sentenced them, as follows: 1. In Criminal Case No. 03-3559, the accused GILBERT ZALAMEDA y SUMILE is found GUILTY beyond reasonable doubt of the crime of violation of Section 11, Article II, R.A. No. 9165 and is sentenced to suffer the indeterminate imprisonment of TWELVE (12) YEARS, ONE (1) DAY as
23

minimum to FOURTEEN (14) YEARS as maximum pursuant to the Indeterminate Sentence Law, R.A. No. 4103, as amended, and to pay a fine ofP300,00.00. 2. In Criminal Case No. 03-3560, the accused GILBERT ZALAMEDA y SUMILE and accused ALBERT VILLAFLOR y HUERTE are found GUILTY beyond reasonable doubt of the crime of violation of Section 12, Article II, R.A. No. 9165 and are sentenced to suffer the indeterminate sentence of FOUR (4) MONTHS and ONE (1) DAY as minimum, to TWO (2) YEARS, SEVEN (7) MONTHS, as maximum, and to pay a fine ofP10,000.00. In both cases, the period during which the accused were held under detention shall be considered in their favor pursuant to existing rules. The dangerous drug subject matter of Criminal Case No. 03-3559 consisting of 0.03 gram of Methylamphetamine Hydrochloride or shabu and the pieces of drug paraphernalia recovered from the accused and subject of Criminal Case No. 03-3560 are hereby transmitted to the Philippine Drug Enforcement Agency (PDEA) for its appropriate disposition. SO ORDERED. The petitioner appealed to the CA and this appeal was docketed as CA-G.R. CR No. 30061. The CA 38 affirmed the RTC decision in its decision of March 18, 2008. The petitioner moved to reconsider this 39 decision, but the CA denied his motion in its resolution of July 15, 2008. In the present petition, petitioner alleges that the items confiscated from him were inadmissible, and that the prosecution failed to prove the existence of the illegal drug. For the State, the Office of the Solicitor General (OSG) counters with the argument that the testimonies of 41 PO2 De Guzman and PO2 De Guia were straightforward and consistent on material points. In addition, the warrantless arrest conducted by the police was valid as the petitioner and Villaflor were caught sniffing shabu. Since the arrest was lawful, the search made incidental to the arrest of the two accused 42 was also lawful. The OSG further argues that the prosecution was able to show all the elements of the crimes 43 charged. The police also complied with the procedure in the custody and disposition of seized drugs 44 under Section 21 of R.A. No. 9165 and its Implementing Rules. Finally, the OSG contends that the petitioners bare denial constitutes self-serving negative evidence 45 which cannot prevail over the categorical and positive testimony of the prosecution witnesses. We DENY the petition for lack of merit. The records of the case records support the conclusion that a lawful arrest, search and seizure took place, and that the prosecution fully discharged its burden of 46 establishing all the elements necessary for conviction for the crimes charged beyond reasonable doubt. The prosecution duly established the elements of the crimes charged Illegal possession of dangerous drugs under Section 11 of R.A. No. 9165 carries the following elements: (1) possession by the accused of an item or object identified to be a prohibited drug; (2) the possession is 47 not authorized by law; and (3) the free and conscious possession of the drug by the accused. On the other hand, the elements of illegal possession of equipment, instrument, apparatus and other paraphernalia for dangerous drugs under Section 12 are: (1) possession or control by the accused of any equipment, apparatus or other paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or introducing any dangerous drug into the body; and (2) such possession is not authorized by law. The evidence for the prosecution showed the presence of all these elements.
40

PO2 De Guzman, in his testimony of January 28, 2004, narrated the circumstances that led them to go to 48 49 the house of the petitioner; how he saw the petitioner and Villaflor in the act of "sniffing smoke"; and 50 how they arrested and searched the petitioner and seized evidence they discovered in plain view. PO2 De Guzman duly and positively identified the petitioner as the person he saw sniffing shabu with Villaflor, and as the same person from whose right pocket he recovered a rectangular plastic sachet containing white crystalline substances. He also narrated how the police inadvertently found various drug apparatus and paraphernalia scattered on top of the petitioners bed. Per Report No. D-1142-03S of Police Inspector Palacios, the plastic sachet recovered from the petitioner was examined and found to contain 0.03 gram of methylamphetamine hydrochloride, a prohibited drug. The two aluminum foil strips and three unsealed transparent plastic sachets recovered on top of the petitioners bed also tested positive for the presence of shabu. Thus, the petitioner knowingly possessed shabu a prohibited drug and had under his control various drug paraphernalia without legal authority to do so, all in violation of Sections 11 and 12 of R.A. No. 9165. PO2 De Guzmans testimony also presented a complete picture of the police operation from the time the desk officer received a tip regarding an ongoing pot session at the petitioners house on D. Gomez Street; to the time the police went there and arrested the petitioner and Villaflor; until they returned to the police station and marked the confiscated items. PO2 De Guia corroborated PO2 De Guzmans testimony on all material points. The defense did not contest the admissibility of the seized items as evidence during trial. Significantly, the petitioner failed to produce convincing proof that the prosecution witnesses had any malicious or ulterior motive when they testified, or that the evidence submitted by the prosecution had 51 been tampered with. PO2 De Guzman testified in a spontaneous, straightforward and categorical manner, proving all the elements of the crimes charged; he never wavered despite the grueling cross-examination by the defense counsel. The Petitioners Defenses a. The Legality of the Petitioners Arrest The petitioner alleges that since the warrantless arrest conducted by the police was illegal, the items seized from him as a result of said arrest were inadmissible. This argument totally lacks merit. We stress at the outset that the petitioner failed to question the legality of his warrantless arrest. The established rule is that an accused may be estopped from assailing the legality of his arrest if he failed to move for the quashing of the Information against him before his arraignment. Any objection involving the arrest or the procedure in the courts acquisition of jurisdiction over the person of an accused must be 52 made before he enters his plea; otherwise the objection is deemed waived. In any event, we carefully examined the records and now hold that the warrantless arrest conducted on the petitioner was valid. Section 5, Rule 113 of the Rules on Criminal Procedure lists the situations when a person may be arrested without a warrant, thus: Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person: a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. Paragraph (a) of Section 5 is commonly known as an in flagrante delicto arrest. For a warrantless arrest of an accused caught in flagrante delicto to be valid, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the 53 arresting officer. After carefully evaluating the evidence in its totality, we hold that the prosecution successfully established that the petitioner was arrested in flagrante delicto. We emphasize that the series of events that led the police to the petitioners house and to his arrest were triggered by a "tip" from a concerned citizen that a "pot session" was in progress at the petitioners house located on D. Gomez Street. Under the circumstances, the police did not have enough time to secure a search warrant considering the "time element" involved in the process (i.e., a pot session may not be for an extended period of time and it was then 5:15 a.m.). In view of the urgency, SPO4 Orbeta immediately dispatched his men to proceed to the identified place 2725 D. Gomez Street to verify the report. At the place, the responding police officers verified from a slightly opened door and saw the petitioner and Villaflor "sniffing smoke" to use the words of PO2 De Guzman, or "sumisinghot ng shabu" as PO2 De Guia put it. There was therefore sufficient probable cause for the police officers to believe that the petitioner and Villaflor were then and there committing a crime. As it turned out, the petitioner indeed possessed a prohibited drug and, together with Villaflor, was even using a prohibited drug and likewise illegally possessed drug paraphernalia, contrary to law. When an accused is caught in flagrante delicto, the police officers are not only authorized but are duty-bound to arrest him even without a warrant. In the course of the arrest and in accordance with police procedures, the petitioner and Villaflor were frisked, which search yielded the prohibited drug in the petitioners possession. The police, aside from seeing Villaflor throw away a tooter, also saw various drug paraphernalia scattered on top of the petitioners bed. These circumstances were sufficient to justify the warrantless search and seizure that yielded one (1) heat-sealed plastic sachet of shabu. In this regard, Section 13, Rule 126 of the Rules of Court states: Section 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. The seizure of the various drug paraphernalia is likewise beyond question. 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. This 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 54 a crime, contraband or otherwise subject to seizure. All the foregoing requirements for a lawful search and seizure are present in this case. The police officers had prior justification to be at the petitioners place as they were dispatched by their desk officer; they arrested the petitioner and Villaflor as they had reason to believe that they were illegally using and possessing a prohibited drug and drug paraphernalia. The search of the petitioner incident to his arrest

yielded the confiscated crystalline substance which later proved to be shabu. In the course of their lawful intrusion, they inadvertently saw the various drug paraphernalia scattered on the bed. As these items were plainly visible, the police officers were justified in seizing them. The petitioner also harps on the fact that the police did not conduct a prior surveillance to verify the tipped information. We emphasize that the "tip" has reference to an ongoing pot session an activity that does not usually last for an extended period. We have held that when time is of the essence, the police may 55 dispense with the need for prior surveillance. Simply stated, a prior surveillance is not necessary where the police operatives are pressed for time to capture a suspected offender, as in this case. Thus, the absence of a surveillance did not undermine the validity of the petitioners arrest. b. Denial and Extortion The petitioner denied that he and Villaflor were caught sniffing shabu, and maintained that they were just talking to each other when the police arrived at his house at 11:47 p.m. of September 13, 2003. According to the petitioner, Villaflor was in his house because he (Villafor) had been requested by Julie (the petitioners own sister) to borrow money from their mother, Milagros, who lives in a nearby street. 56 The money was for the baptism of Julies daughter, scheduled for the next day. The petitioner maintained that he did not bring Villaflor to Milagros house as soon as he (Villaflor) arrived in the evening 57 of September 13, 2003 because it was already late and Milagros was already asleep. He maintained that 58 he and Villaflor were arrested and detained on September 13, 2003 and not on September 14, 2003. As the lower courts did, we find the petitioners story unworthy of belief. We find the petitioners claim that he was arrested and detained in the evening of September 13, 2003 to be self-serving and uncorroborated by any separate competent evidence. The petitioner, in fact, admitted 59 that he has no proof of such detention in his testimony of March 31, 2004. The justification that the petitioner offered for Villaflors presence at his place, in the absence of any corroborating evidence, is likewise questionable. Allegedly, Villaflor was asked by Julie to borrow from Milagros money to be used in a baptism to be held on the following day. No reason exists in the records explaining why Villaflor would proceed to the petitioners house and stay there, given the urgency of his task and given that, by the petitioners own admission, Milagros was expecting Villaflor that night. The questionable status of this basic component of the denial, to our mind, renders the whole denial itself questionable. The latin maxim 60 "falsus in unus, falsus in omnibus" best explains our reason. The petitioners denial must likewise fail in light of the positive identification and declarations made by the prosecution witnesses. As we stated earlier, these witnesses testified in a straightforward and categorical manner regarding the identities of the malefactors. They did not waver despite the defense counsels rigid questioning. Courts generally view the defense of denial with disfavor due to the facility with which an accused can concoct it to suit his or her defense. As evidence that is both negative and self-serving, this defense cannot attain more credibility than the testimonies of prosecution witnesses who testify clearly, providing thereby positive evidence on the various aspects of the crime committed. One such positive evidence is the result of the laboratory examination conducted by the PNP Crime Laboratory on the various drug and drug paraphernalia recovered from the petitioner and Villaflor which revealed that the following confiscated items tested positive for the presence of shabu: (a) one heat-sealed transparent plastic sachet with marking "GSZ" containing 0.03 gram of white crystalline substance; (b) two aluminum foil strips both with markings "AHV," each containing white crystalline substance; and (c) three unsealed transparent plastic sachets all with markings "RSG" each containing white crystalline substance. In addition, the drug tests conducted on the petitioner and Villaflor both yielded positive results. Petitioners claim of extortion is similarly untenable. An allegation of frame-up and extortion by police officers is a common and standard defense in most dangerous drug cases. It is viewed by this Court with

disfavor, for it can be easily concocted. To substantiate such a defense, the evidence must be clear and 61 convincing. In the present case, the petitioner was unable to support his allegation of extortion with any other evidence. The petitioner also admitted that he did not know the policemen previous to the arrest, hence negating any improper motive on the part of the police. Such lack of dubious motive coupled with the presumption of regularity in the performance of official duty, as well as the findings of the trial court on the credibility of prosecution witnesses, should prevail over the petitioners self-serving and uncorroborated extortion claim. It is also worth noting that the petitioner has not filed a single complaint against the police officers who allegedly attempted to extort money from him. c. Non-presentation of the Informant The petitioner argues that the informant was never presented in court to corroborate the testimonies of the prosecution witnesses. We do not find this argument convincing. The settled rule is that the presentation of an informant in an illegal drugs case is not essential for conviction nor is it indispensable for a successful prosecution because his testimony would be merely 62 corroborative and cumulative. Moreover, informants are usually not presented in court because of the 63 need to hide their identities and preserve their invaluable service to the police. Thus, we held in People 64 v. Boco: Under the circumstances, we do not find any necessity for additional corroborating testimony, particularly that of the confidential informant. Intelligence agents, due to the nature of their work, are often not called to testify in court so as not to reveal their identities publicly. Once known, they could no longer be used again and, worse, may be the object of revenge by the criminals they implicate. The prevailing doctrine is that their testimonies are not essential for conviction, nor are they indispensable to a successful prosecution. With the testimonies of the arresting officers, they would be, after all, merely corroborative and cumulative. d. The Integrity and Evidentiary Value of the Examined and Presented Seized Items The petitioner alleges that the prosecution failed to establish the evidences chain of custody because the police operatives failed to strictly comply with Section 21(1) of R.A. No. 9165. He adds that the police did not immediately mark, photograph and inventory the drugs and drug paraphernalia at the place where they were seized. We disagree. The chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to 65 support a finding that the matter in question is what the proponent claims it to be. Contrary to what the petitioner wants to portray, the chain of custody of the seized prohibited drug was shown not to have been broken. After the seizure of the rectangular plastic sachet containing white crystalline substance from the petitioners possession and of the various drug paraphernalia on top of the petitioners bed, the police immediately brought the petitioner and Villaflor to the police station, together with the seized items. PO2 De Guzman himself brought these items to the police station and marked 66 them. The plastic sachet containing white crystalline substance was marked "GSZ" (Exh. "F"); the improvised tooter aluminum foil strips and aluminum foil with traces of methylamphetamine hydrochloride 67 were marked "AHV" (Exh. "G" and "H"); the three pieces of unsealed transparent plastic sachet were 68 marked "RSG" (Exh. "I, "I-1", and "I-2"); the disposable lighter was marked "RSG" (Exh. "J"); the

stainless pair of scissors was marked "RSG" (Exh. "K"); the transparent plastic sachet containing three aluminum foil strips was marked "RSG" (Exh. "L"); and the Monsieur bag was marked RSG" (Exh. "M"). These confiscated items were immediately turned over to SPO4 Mangulabnan, who in turn, forwarded them to the PNP Crime Laboratory, Southern Police District for examination to determine the presence of dangerous drugs. After a qualitative examination conducted on the specimens, Forensic Chemist Palacios concluded that Exhibits "F," "G," "H," "I," "I-1," and "I-2" tested positive for the presence of 69 methylamphetamine hydrochloride. When the prosecution presented these marked specimens in court, PO2 De Guzman positively identified them to be the same items he seized from the petitioner and which he later marked at the police station, from where the seized items were turned over to the laboratory for 70 examination based on a duly prepared request. We quote the pertinent portions of the records: xxx PROSECUTOR ALEX BAGAOISAN: Q: Now Mr. Witness, you mentioned earlier that when you frisked accused Zalameda, you were able to recover from his possession a sachet containing white crystalline substance? PO2 RENATO DE GUZMAN: A: Yes, sir. Q: If that sachet containing white crystalline substance will be shown to you, will you be able to identify the same? A: Yes, sir. Q: I am showing to you, Mr. Witness, a sachet, which contains white crystalline substance. Will you please go over the same and tell us what relation does this have to the sachet containing white crystalline substance, which you said was recovered from accused Zalameda? A: This is the plastic sachet that I have recovered from the possession of accused Zalameda, sir. Q: Why are you certain that this is the same sachet containing white crystalline substance, which you recovered from accused Zalameda? A: I put markings, sir. Q: What markings? A: I placed GSZ. Q: Where did you place this marking? A: Inside the headquarters, sir. Q: Could you tell us what does this marking GSZ stand for? A: Gilbert Sumile Zalameda, sir.

Q: May I request, Your Honor, that this white crystalline substance contained in a plastic sachet with markings GSZ be marked as Exhibit F, Your Honor. Now, you mentioned also that you were able to recover drug paraphernalia from the bed. A: Yes, sir. Q: You mentioned of an improvised tooter aluminum foil? A: Yes, sir. Q: I have here several pieces of evidence. Will you please step down and identify the improvised tooter aluminum foil you have mentioned? A: This one, sir. Q: And why are you certain that this is the same improvised tooter aluminum foil that you recovered from the accused? A: I placed markings sir. Q: What is the markings that you placed? A: AHV, sir. Q: What does AHV stand for? A: Albert Huerte Villaflor, sir. Q: May I request, Your Honor that this improvised tooter aluminum foil identified by the witnesses be marked as exhibit G with markings AHV. Now, you also mentioned of one aluminum foil, which was made as a tray, could you identify that particular object evidence that you have mentioned? A: Yes, sir, this is the one. Q: And why are you certain that this is the same aluminum foil, which was used as a tray? A: I also placed markings, sir. Q: What markings did you place in this particular object evidence? A: AHV, sir. Q: May I request, Your Honor, that this aluminum foil identified by the witness with markings AHV be marked as exhibit H. You mentioned of three pieces plastic sachets containing white crystalline substance. Now could you point to us these sachets that you have mentioned? A: Yes, sir. These are the plastic sachets. Q: And why are you certain that these are the same sachets which you said contained traces of shabu?

A: I placed the markings, sir. Q: What markings did you place? A: My initial, sir, RSG. Q: May I request, Your Honor, that these three pieces of plastic sachets containing traces of shabu be marked as exhibit I, I-1, and I-2. Now, you also mentioned of disposable lighter. Will you please identify the disposable lighter that you have mentioned? A: Yes, sir, this is the one. Q: May I request, Your Honor, that the disposable lighter identified by the witness with markings RSG be marked as Exhibit J. How about the scissors, could you identify the scissors that you have recovered? A: Yes, sir. This is the one. Q: The witness identified stainless scissors, which we request to be marked as Exhibit K. Aside from these object evidence, what other object evidence did you find on the bed? A: I also found three rolled aluminum foil, sir. Q: Will you be able to identify those three aluminum foils that you have mentioned? A: Yes, sir. Q: Please point them out to us. A: Here, sir. Q: May I request, Your Honor, that these three rolled aluminum foils with markings RS be marked as Exhibit L. Now, why are the markings different, there is the marking RSG, there is a marking AHV? [sic] A: For identification, sir. Q: You also mentioned a bag. Will you please identify that bag? A: Here, sir. Q: We request, Your Honor, that the bag identified by the witness be marked as Exhibit M. Now, you also mentioned that you brought Zalameda to the headquarters. A: Yes, sir. Q: How about accused Albert Villaflor? A: We also brought him to the headquarter[s]. Q: What did you do at the precinct?

A: Our desk officer prepared the necessary paper to turn over the two suspects to the investigator. Q: So, did you come to know what happened after that? A: The investigator prepared a request addressed to the crime lab. for laboratory examination of the confiscated evidence, sir. Q: How about the accused, what did you do with them after the investigation? A: The investigator also made a request for drug test examination addressed to the Crime Laboratory. Q: And did you come to know what was the result of the examination conducted? A: Yes, sir. Q: And what was the result? A: The result is positive, sir. Q: What do you mean positive? A: Positive, sir, for methylamphetamine hydrochloride or shabu, sir. Q: How about the drug test? A: The accused also gave positive result. xxx
71

[Emphasis ours]

Thus, the prosecution established the crucial link in the chain of custody of the seized items from the time they were first discovered until they were brought for examination. Besides, as earlier stated, the petitioner did not contest the admissibility of the seized items during trial. The integrity and the evidentiary value of the drug seized from the petitioner were therefore duly proven not to have been compromised. We also reject the petitioners claim that the non-presentation of the forensic chemist was fatal to the prosecutions case. The petitioner never raised in issue before the trial court the non-presentation of Police Inspector Palacios. In fact, the defense during the pre-trial agreed to dispense with her 72 testimony. It must also be stressed that Police Inspector Palacios is a public officer, and her report carries the presumption of regularity. Besides, Section 44, Rule 130 of the Revised Rules of Court provides that entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specifically enjoined by law, are prima facie 73 evidence of the facts therein stated. Police Inspector Palacios findings that Exhibits "F," "G," "H," "I," "I1," and "I-2" were found positive for the presence of shabu are, therefore, conclusive in the absence of evidence proving the contrary. Jurisprudence teems with pronouncements that failure to strictly comply with Section 21(1), Article II of 74 R.A. No. 9165 does not necessarily render an accuseds arrest illegal or the items seized or confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as these would be utilized in the determination of the guilt or 75 innocence of the accused. In the present case, we see substantial compliance by the police with the

required procedure on the custody and control of the confiscated items, thus showing that the integrity of the seized evidence was not compromised. We refer particularly to the succession of events established by evidence, to the overall handling of the seized items by specified individuals, to the test results obtained, under a situation where no objection to admissibility was ever raised by the defense. All these, to the unprejudiced mind, show that the evidence seized were the same evidence tested and 76 subsequently identified and testified to in court.1awphi1 In People v. Del Monte, we explained: We would like to add that non-compliance with Section 21 of said law, particularly the making of the inventory and the photographing of the drugs confiscated and/or seized, will not render the drugs inadmissible in evidence. Under Section 3 of Rule 128 of the Rules of Court, evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. For evidence to be inadmissible, there should be a law or rule which forbids its reception. If there is no such law or rule, the evidence must be admitted subject only to the evidentiary weight that will accorded it by the courts. x x x We do not find any provision or statement in said law or in any rule that will bring about the nonadmissibility of the confiscated and/or seized drugs due to non-compliance with Section 21 of Republic Act No. 9165. The issue therefore, if there is non-compliance with said section, is not of admissibility, but of weight evidentiary merit or probative value to be given the evidence. The weight to be given by the courts on said evidence depends on the circumstances obtaining in each case. The Proper Penalties The petitioner was caught in possession of 0.03 gram of shabu or methamphetamine hydrochloride. The illegal possession of dangerous drugs is punished under Section 11, paragraph 2(3), Article II of R.A. No. 9165, which provides: (3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three hundred thousand pesos (P300,000.00) to Four hundred thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than five (5) grams of x x x methamphetamine hydrochloride or "shabu" x x x We sustain the penalty imposed by the RTC and affirmed by the CA in Criminal Case No. 03-3559, as it is within the range provided for by law. Meanwhile, Section 12, Article II of R.A. No. 9165 provides that the penalty of imprisonment ranging from six (6) months and one (1) day to four (4) years and a fine ranging from Ten thousand pesos (P10,000.00) to Fifty thousand pesos (P50,000.00) shall be imposed upon any person, who unless authorized by law, shall possess or have under his/her control any equipment, instrument, apparatus and any other paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or introducing any dangerous drug into the body. The courts a quo sentenced the petitioner to suffer the indeterminate penalty of four months and one day, as minimum, to two years and seven months, as maximum in Criminal Case No. 03-3560. Pursuant to Section 12 of R.A. No. 9165, we increase the minimum to six (6) months and one (1) day imprisonment. WHEREFORE, premises considered, the Court of Appeals decision and resolution dated March 18, 2008 and July 15, 2008, respectively, in CA-G.R. CR No. 30061 are AFFIRMED with the MODIFICATION that in Criminal Case No. 03-3560, petitioner Gilbert Zalameda is SENTENCED to suffer the indeterminate penalty of six (6) months and one (1) day, as minimum, to two (2) years and seven (7) months, as maximum. The CA decision finding the petitioner guilty of violation of Section 11 of R.A. No. 9165 in Criminal Case No. 03-3559 is AFFIRMED in all respects.

SO ORDERED.

A.M. No. MTJ-06-1658 July 3, 2007 [Formerly OCA IPI No. 01-1014-MTJ] MIGUEL E. COLORADO, complainant, vs. JUDGE RICARDO M. AGAPITO Municipal Circuit Trial Court, Laur, Nueva Ecija, respondent. RESOLUTION AUSTRIA-MARTINEZ, J.: Before us is a sworn letter-complaint dated January 31, 2001 of Miguel E. Colorado (complainant) charging Judge Ricardo M. Agapito (respondent), Municipal Circuit Trial Court (MCTC), Laur, Nueva Ecija, with Gross Ignorance of the Law and Grave Abuse of Authority relative to Criminal Case Nos. 3461-G and 3462-G, entitled "People v. Miguel Colorado," with Grave Slander and Grave Threats. Complainant alleges: He is the accused in the aforementioned criminal cases. The cases were directly filed with the court without first passing the Office of the Barangay Chairman, although he and private complainants are permanent residents of Barangay Bagong Sikat, Gabaldon, Nueva Ecija. Respondent ignored the glaring deficiency in private complainants filing of the cases without attaching the requisite certifications to file action from the barangay. On the date the two cases were filed, respondent immediately issued two warrants for his arrest. He was arrested on a Friday and languished in the municipal jail for two days and two nights. He posted bail and filed a motion to inhibit respondent from hearing the case, but the same was not acted upon. He received an envelope from the court with nothing inside and found out later that the same was supposed to be a notice of hearing; thus, he was ordered arrested in view of his non-appearance in court. On February 22, 2001, respondent compulsorily retired from the judiciary. In a 1 Indorsement dated June 8, 2001, respondent was directed to file his comment on the complaint. A st 1 Tracer dated October 17, 2001 was sent to respondent giving him a non-extendible period of five days to file his comment. However, the said tracer was returned unserved due to respondents retirement from the judiciary. Another Tracer dated July 30, 2002 was sent to respondent in his residential address giving him a chance to file his comment, but none was filed. Acting on the complaint, the Court, in its Resolution of March 24, 2003, required respondent to manifest whether he was willing to submit the administrative matter against him for resolution without his comment. Respondent failed to comply with the Court Resolution. Thus, in the Resolution of January 26, 2005, the Court ordered respondent to show cause why he should not be disciplinarily dealt with or held in contempt for failure to manifest and to comply with the Resolution of March 24, 2003. Still, respondent failed to comply with the Resolution of January 26, 2005. In the Resolution of August 24, 2005, the Court imposed upon respondent a fine of P1,000.00 and deemed respondent to have waived the filing of a comment on the complaint. In the Agenda Report dated October 12, 2005, the Office of the Court Administrator (OCA) found respondent guilty as charged and recommended that he be fined in the amount of Twenty Thousand Pesos (P20,000.00) to be deducted from his retirement benefits. On November 8, 2005, respondent paid the fine of P1,000.00 imposed on him in the Resolution of August 24, 2005 and submitted his Comment on the complaint. In his Comment dated October 31, 2005, respondent denied the allegations contained in the complaint reasoning that he acted in good faith and within the scope of his duties. He further contends: Based on
3 2 st 1

Administrative Circular No. 140-93, the crimes committed by the accused are not within the Katarungan Pambarangay Law because the imposable penalty exceeds one year. Both cases are within the original jurisdiction of the court and, finding a probable cause against the accused, the court issued the warrant of arrest. There is no law or circular issued by this Court that a court cannot issue a warrant of arrest on Friday. If the accused was not able to post bail on time, it is not his fault or of the court. The motion for inhibition filed by complainant must be set for hearing. But in spite of several settings to hear the motion, complainant failed to appear. In the hearing of both cases, complainant failed to appear in court; thus, the assistant provincial prosecutor moved for the arrest of the complainant. At the hearing of November 17, 2000 and January 5, 2001, complainant failed to appear in court, and orders of arrest were issued against him, but said orders were reconsidered by the court. In spite of all the orders of the court for the arrest of complainant, none of the orders were implemented. Neither was the accused arrested and detained in jail. And if the complainant received an envelope from the MCTC of Laur without content, complainant should have immediately informed the court of the said circumstance so that proper action may be done on the employee in charge of the mailing of notices. In the Resolution of March 29, 2006, the Court referred back the instant administrative matter to the OCA for evaluation, report and recommendation. In a letter dated November 21, 2005, respondent requested the Court that his retirement benefits be released subject to the withholding of P20,000.00 pending resolution of the present complaint. In the Resolution of June 28, 2006, the Court granted the partial release of respondent's compulsory retirement benefits and withheld therefrom the amount of P20,000.00 to answer for whatever liability respondent may incur in the present administrative case. In the Agenda Report dated August 30, 2006, the OCA submitted its evaluation and recommendation, to wit: The charges against respondent judge are summarized as follows: 1. Gross Ignorance of the law for his failure to remand or dismiss the case in view of the absence of the requisite certificate to file action issued by the Barangay as a mandatory requirement of the Katarungan Pambarangay Law and the Local Government Code. 2. Grave abuse of authority for the issuance of a warrant of arrest on a Friday to ensure complainants incarceration for two days. 3. Grave abuse of authority and bias in continuing the hearing of the cases and for failure to act on the motion for inhibition. 4. An intention on the part of respondent to prevent complainants appearance in court by sending an envelope, with a supposed notice of hearing but with nothing inside. xxxx Respondent judge argued that under Administrative Circular No. 14-93 dated August 3, 1993 issued by this Court as Guidelines for the Implementation of the Barangay Conciliation Procedure, based on the Local Government Code of 1991, R.A. 7160, which took effect on January 1, 1992, one of the exceptions to the coverage of the circular is "Offense[s] for which the law prescribes a maximum penalty of imprisonment exceeding one (1) year or a fine over five thousand pesos (P5,000.00)." Considering that the offenses for which accused was charged have corresponding penalties of more than one year there is no need for a certification to file action from the Barangay.
5 4

There was likewise no grave abuse of discretion in the issuance of warrant of arrest. The subject criminal cases were within the original jurisdiction of the MTC and after finding probable cause against the accused, respondent issued the questioned warrant of arrest. Respondent pointed out that there is no law or circular issued by the Honorable Court prohibiting the issuance of a warrant of arrest on Friday. With regard to the charge of grave abuse of discretion relative to the motion for inhibition, respondent submitted that there should be a hearing on the motion before it could be acted upon. But in spite of the several settings of said motion the complainant as accused failed to appear. Respondent contended that if it were true that complainant received an envelope from the MCTC of Laur, Nueva Ecija, without any contents, he should have immediately informed the court about it so that the proper action could have been done. Lastly, respondent invited the Courts attention to the fact that complainant was also accused of Grave Slander by Darlito Urbano and Violeta Urbano which case were docketed as Criminal Case No. 3648-G and 3649-G, MCTC Laur-Gabaldon, Nueva Ecija. It is argued that this shows the character of Miguel Colorado. After careful evaluation of the record of the case, the undersigned finds merit in the neglect of respondent judge to resolve the pending issue of the motion for inhibition which was not acted upon up to the time of his compulsory retirement from the service. It should be noted that respondent never gave any valid justification for the delay in the filing of his comment. It seems that he believed that the mere payment of the fine obliterated the charge of contumacious refusal to obey the order of this Court. Respondent's conduct cannot be left unnoticed by the Court. Judges are the visible representations of law and justice, from whom the people draw the will and inclination to obey the law (Moroo v. Lomeda, 316 Phil. 103, July 14, 1995) "How can the respondent judge expect others to respect the law when he himself cannot obey orders as simple as the show-cause resolution?" {Longboan v. Hon. Polig (A.M. No. R-704RTJ, June 14, 1990, 186 SCRA 557) cited in the case of Bonifacio Guintu v. Judge Aunario L. Lucero, A.M. No. MTJ-93-794, August 23, 1996}. In a catena of cases this Court has unhesitatingly imposed the penalty of dismissal on those who have persistently failed to comply with orders requiring them either to file comment or to show cause and comply. Respondent's belated filing of his comment cannot cure or obliterate[d] his shortcomings with this Court. The fact remains that he ignored the lawful directive of the Court and in fact offered no valid justification or excuse for it. This Court could have imposed the penalty of dismissal and forfeiture of all of respondent's retirement benefit had it not been for this Courts compassion in allowing him to retire with the mere retention of P20,000.00. Respondents comment should not have been received in the first place as the same was already considered waived pursuant to the Resolution of the Honorable Court dated 24 August 2005. IN VIEW OF THE FOREGOING, the undersigned respectfully recommends to the Honorable Court that: 1. Judge Ricardo M. Agapito, former judge of MCTC, Laur, Nueva Ecija be found guilty of gross neglect for failure to act on the motion for inhibition filed by accused-complainant and for his failure to promptly comply with the lawful order of Court and not offering a valid excuse therefor and should be FINED in the amount of Twenty Thousand Pesos (P20,000); and 2. The withheld amount of Twenty Thousand Pesos (P20,000) shall be considered the 6 payment of the fine.

We agree in toto with the findings and recommendations of the OCA. First of all, we deem it necessary to determine the applicability of A.M. No. 03-10-01-SC, a Resolution Prescribing Measures to Protect Members of the Judiciary from Baseless and Unfounded Administrative Complaints, which took effect on November 3, 2003. Recognizing the proliferation of unfounded or malicious administrative or criminal cases against members of the judiciary for purposes of harassment, we issued said Resolution, which provides: 2. If the complaint is (a) filed within six months before the compulsory retirement of a Justice or Judge; (b) for an alleged cause of action that occurred at least a year before such filing; and (c) shown prima facie that it is intended to harass the respondent, it must forthwith be recommended for dismissal. If such is not the case, the Office of the Court Administrator must require the respondent to file a comment within ten (10) days from receipt of the complaint, and submit to the Court a report and recommendation not later than thirty (30) days from receipt of the comment. The Court shall act on the recommendation before the date of compulsory retirement of the respondent, or if it is not possible to do so, within six (6) months from such date without prejudice to the release of the retirement benefits less such amount as the Court may order to be withheld, taking into account the gravity of the cause of action alleged in the complaint. Thus, in order for an administrative complaint against a retiring judge or justice to be dismissed outright, the following requisites must concur: (1) the complaint must have been filed within six months from the compulsory retirement of the judge or justice; (2) the cause of action must have occurred at least a year before such filing; and (3) it is shown that the complaint was intended to harass the respondent. In the present case, the first two requisites are present. The sworn letter-complaint was received by the Office of the Court Administrator on January 31, 2001. The respondent retired compulsorily from the service barely three weeks after or on February 22, 2001; and the ground for disciplinary action alleged to have been committed by the respondent occurred five months before the respondents separation from the service. As to the third requirement, although the first and second charges against respondent are outrightly without merit as aptly found by the OCA, the complaint that respondent failed to act on his motion for inhibition and intentionally prevented complainant from appearing in a scheduled hearing was not prima facie shown to be without merit; nor was the filing thereof shown to be intended merely to harass the 7 respondent. Thus, the OCA correctly proceeded with the administrative case against respondent. Moreover, the fact that a judge has retired or has otherwise been separated from the service does not necessarily divest the Court of its jurisdiction to determine the veracity of the allegations of the complaint, pursuant to its disciplinary authority over members of the bench. As we held in Gallo v. 8 9] Cordero, citing Zarate v. Judge Romanillos: The jurisdiction that was ours at the time of the filing of the administrative complaint was not lost by the mere fact that the respondent had ceased in office during the pendency of his case. The Court retains jurisdiction either to pronounce the respondent public official innocent of the charges or declare him guilty thereof. A contrary rule would be fraught with injustice and pregnant with dreadful and dangerous implications... If innocent, respondent public official merits vindication of his name and integrity as he leaves the government which he has served well and faithfully; if guilty, he deserves to receive the corresponding censure and a penalty proper and imposable under the situation. We now go to the four charges against respondent.

1. Gross Ignorance of the law for his failure to remand or dismiss the case in view of the absence of the requisite certificate to file action issued by the barangay as a mandatory requirement of the Katarungan Pambarangay Law and the Local Government Code. As we earlier stated, the Court finds that the OCA is correct in not finding respondent administratively liable therefor. Complainant is charged with grave slander, the maximum penalty for which is 2 years and 4 months under Article 358 of the Revised Penal Code. Thus, respondent is not guilty of gross ignorance of the law in taking jurisdiction over said criminal case, considering that prior recourse to barangay conciliation is not required where the law provides a maximum penalty of imprisonment exceeding one year. 2. Grave abuse of authority for the issuance of a warrant of arrest on a Friday to ensure complainants incarceration for two days. Complainant faults respondent for having been arrested on a Friday, causing him to languish in jail for two days and two nights. Respondent cannot be held administratively liable for this particular matter. Section 6, Rule 113 of the Revised Rules of Criminal Procedure provides that an arrest may be made on any dayand at any time of the day or night. It is of no moment that the warrant of arrest was issued by respondent on a Friday, because it is clear from the foregoing that an arrest may be made on any day regardless of what day the warrant of arrest was issued. Nowhere in the Rules or in our jurisprudence can we find that a warrant of arrest issued on a Friday is prohibited. Granting that complainant was arrested on a Friday, he was not without recourse, as he could have 10 posted bail for his temporary liberty in view of Supreme Court Circular No. 95-96 dated December 5, 1996, providing for a skeletal force on a Saturday from 8:00 a.m. to 1:00 p.m. primarily to act on petitions for bail and other urgent matters. And on Saturday afternoons, Sundays and non-working holidays, any judge may act on bailable offenses. Thus, we agree with the OCA that respondent did not commit grave abuse of authority for issuing the warrant of arrest on a Friday, the same not being prohibited by law. 3. Grave abuse of authority and bias in continuing the hearing of the cases and for failure to act on the motion for inhibition. While there is no evidence in support of the claim that respondent committed grave abuse of authority and bias in continuing the hearing of cases, we find respondent liable for failure to act upon complainants motion for inhibition. As borne by the records, complainant filed his motion for respondent's inhibition sometime in September 2000 but up to the time of respondents compulsory retirement from the judiciary on February 22, 2001, the same remained unacted upon. Verily, the undue delay of respondent by five months in resolving the pending incident before his court erodes the peoples faith in the judiciary and the same is tantamount to gross inefficiency. Respondents explanation that despite the fact that the motion was set for hearing several times, complainant repeatedly failed to appear thereat, is untenable. Respondent must know that he may act motu proprio on the motion for inhibition without requiring the attendance of complainant. A judge, in the exercise of his sound discretion, may disqualify himself from sitting on a case for just or valid 11 reasons. Section 5, Canon 6 of the New Code of Judicial Conduct for the Philippine Judiciary, mandates judges to perform all judicial duties, including the delivery of reserved decisions, efficiently, fairly and with reasonable promptness. Similarly, Supreme Court Circular No. 13 dated July 1, 1987 directs judges to observe unscrupulously the periods prescribed by the Constitution in the adjudication and resolution of all cases or matters submitted to their court.
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In Visbal v. Buban, the Court held that failure to decide cases and other matters within the reglementary period constitutes gross inefficiency and warrants the imposition of administrative sanction against the 14 erring magistrate. Delay in resolving motions and incidents pending before a judge within the reglementary period of ninety (90) days fixed by the Constitution and the law is not excusable and 15 constitutes gross inefficiency. Further, such delay constitutes a violation of Rule 3.05, Canon 3 of the Code of Judicial Conduct, which mandates that a judge should dispose of the courts business promptly and decide cases within the required periods. As a trial judge, respondent is a frontline official of the 16 judiciary and should at all times act with efficiency and with probity. Undue delay in the disposition of cases and motions erodes the faith and confidence of the people in the judiciary and unnecessarily 17 blemishes its stature. 4. An intention on the part of respondent to prevent complainants appearance in court by sending an envelope, with a supposed notice of hearing but with nothing inside. Suffice it to be stated that in the absence of evidence to show that the sending of an empty envelope to complainant was malicious on the part of respondent, he cannot be held liable therefor. Section 9 (1) and 11 (B), Rule 140 of the Rules of Court, as amended by A.M. No. 01-8-10-SC, classifies gross neglect or undue delay in rendering a decision or order as a less serious charge which carries any of the following sanctions: suspension from office without salary and other benefits for not less than one (1) nor more than three (3) months or a fine of more than P10,000.00 but not exceeding P20,000.00. We adopt the recommendation of the OCA that respondent should be imposed a fine in the amount 18 of P20,000.00. WHEREFORE, the Court finds respondent Judge Ricardo M. Agapito guilty of gross neglect and is FINED in the amount of Twenty Thousand Pesos (P20,000.00). The withheld amount of Twenty Thousand Pesos (P20,000.0) from respondents retirement benefits is considered as payment of the fine. SO ORDERED.

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G.R. No. 176066

August 11, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ESTELA TUAN y BALUDDA, Accused-Appellant. DECISION LEONARDO-DE CASTRO, J.: For review is the Decision dated September 21, 2006 of the Court of Appeals in CA-G.R. CR.-H.C. No. 2 00381, which affirmed with modification the Decision dated April 9, 2002 of the Regional Trial Court (RTC), Branch 6, Baguio City, finding accused-appellant Estela Tuan y Baludda guilty in Criminal Case No. 17619-R, of illegal possession of marijuana under Article II, Section 8 of Republic Act No. 6425, otherwise known as "The Dangerous Drugs Act of 1972," as amended; and in Criminal Case No. 17620R, of violating Presidential Decree No. 1866, otherwise known as the "Illegal Possession of Firearms," as amended. On April 5, 2000, two separate Informations were filed before the RTC against accused-appellant for illegal possession of marijuana and illegal possession of firearm. The Informations read: Criminal Case No. 17619-R The undersigned Public Prosecutor accuses ESTELA TUAN Y BALUDDA of the crime of VIOLATION OF SEC. 8, ART. II OF REPUBLIC ACT 6425, AS AMENDED (Illegal Possession of Marijuana), committed as follows: That on or about 24th day of January 2000, at Barangay Gabriela Silang, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully and unlawfully have in her possession, custody, and control the following, to wit: a) Nine (9) bricks of dried Marijuana leaves with an approximate total weight of 18.750 kgs., and b) One (1) plastic bag containing dried Marijuana leaves weighing approximately .3 kg. without any authority of law to do so in violation of the above-cited provision of law. Criminal Case No. 17620-R The undersigned Public Prosecutor accuses ESTELA TUAN Y BALUDDA of the crime of VIOLATION OF PRESIDENTIAL DECREE 1866, AS AMENDED (Illegal Possession of Firearm), committed as follows: That on or about the 24th day of January 2000, at Barangay Gabriela Silang, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully and unlawfully have in her possession, custody, and control one (1) Cal. .357 S & W revolver, a high-powered firearm, without any license, permit or authority duly issued by the government 4 to possess or keep the same in violation of the above-cited law. Upon her arraignment on April 18, 2000, accused-appellant, assisted by her counsel de parte, pleaded 5 "NOT GUILTY" to both charges. Pre-trial and trial proper then ensued.
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During trial, the prosecution presented four witnesses: Senior Police Officer (SPO) 1 Modesto F. Carrera (Carrera), Police Officer (PO) 2 Jaime Chavez (Chavez), SPO2 Fernando Fernandez (Fernandez), and Forensic Chemist II Marina Carina Madrigal (Madrigal). The events, as recounted by the prosecution, are as follows: At around nine oclock in the morning on January 24, 2000, two male informants namely, Jerry Tudlong (Tudlong) and Frank Lad-ing (Lad-ing) arrived at the office of the 14th Regional CIDG (Criminal Investigation and Detention Group) at DPS Compound, Marcoville, Baguio City, and reported to SPO2 Fernandez, Chief of the Station Drug Enforcement Unit (SDEU), that a certain "Estela Tuan" had been selling marijuana at Barangay Gabriela Silang, Baguio City. Present at that time were Police Superintendent Isagani Neres, Regional Officer of the 14th Regional CIDG; Chief Inspector Reynaldo 6 Piay, Deputy Regional Officer; and other police officers. SPO2 Fernandez set out to verify the report of Tudlong and Lad-ing. At around one oclock in the afternoon of the same day, he gave Tudlong and Lad-ing P300.00 to buy marijuana, and then accompanied the two informants to the accused-appellants house. Tudlong and Lad-ing entered accused-appellants house, while SPO2 Fernandez waited at the adjacent house. After thirty minutes, Tudlong and Lad-ing came out of accused-appellants house and showed SPO2 Fernandez the marijuana leaves they bought. After returning to the CIDG regional office, SPO2 Fernandez requested the laboratory examination of the leaves bought from accused-appellant. When said laboratory examination yielded positive results for marijuana, SPO2 Fernandez prepared an Application for Search Warrant for accused-appellants house. SPO2 Fernandez, together with Tudlong and Lad-ing, filed the Application for a Search Warrant before Judge Iluminada Cabato-Cortes (Judge Cortes) of the Municipal Trial Court in Cities (MTCC), Baguio City, Branch IV, at about one oclock in the afternoon on January 25, 2000. Two hours later, at around three oclock, Judge Cortes personally examined SPO2 Fernandez, Tudlong, and Lad-ing, after which, she issued a Search Warrant, being satisfied of the existence of probable cause. The Search Warrant read: TO ANY PEACE OFFICER: GREETINGS: It appearing to the satisfaction of the undersigned of the existence of facts upon which the application for Search Warrant is based, after personally examining by searching questions under oath SPO2 Fernando V. Fernandez of the CAR Criminal Investigation and Detection Group with office address at DPS Compound, Utility Road, Baguio City and his witnesses namely: Frank Lad-ing of Happy Hallow, Baguio City and Jerry Tudlong, of Barangay Kitma, Baguio City, after having been duly sworn to, who executed sworn statements and deposition as witneses, that there is a probable cause to believe that a Violation of R.A. 6425 as amended by R.A. 7659 has been committed and that there are good and sufficient reasons to believe that Estela Tuan, has in her possession and control at her resident at Brgy. Gabriela Silang, Baguio City, the following: - Undetermined Quantity of Marijuana Dried Leaves and/or Marijuana Hashish xxxx which are subject of the offense which should be seized and brought to the undersigned.

You are hereby commanded to make an immediate search at anytime in the day the house of the accused Estela Tuan at Brgy. Gabriela Silang, Baguio City, and forthwith seize and take possession of the following: - Undetermined Quantity of Marijuana Dried Leaves and/or Marijuana Hashish x x x nothing follows x x x and bring said items to the undersigned to be dealt with as the law directs. This Search Warrant shall be valid for ten (10) days from date of issue, thereafter, it shall be void. The officers must conduct the search and seize the above-mentioned personal items in the presence of the lawful occupant thereof or any member of her family or in the absence of the latter, in the presence of two witnesses of sufficient age and discretion residing in the same locality. The officers seizing the items must give a detailed receipt for the same to the lawful occupant of the house in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of the 2 witnesses mentioned, leave a receipt in the place in which the seized items were found; thereafter, deliver the items seized to the undersigned judge together with a true inventory thereof duly verified under oath. Baguio City, Philippines, this 25th day of January, 2000. (SGD)ILUMINADA CABATO-CORTES Executive Judge MTCC, Branch IV
7

Upon receipt of the Search Warrant, SPO2 Fernandez, his team supervisor Police Senior Inspector Rodolfo Castel, SPO1 Carrera, Police Senior Inspector Ricarte Marquez and PO2 Chavez implemented the warrant. Before going to the accused-appellants house, SPO2 Fernandez invited barangay officials to be present when the Search Warrant was to be served, but since no one was available, he requested one Eliza Pascual (Pascual), accused-appellants neighbor, to come along. The CIDG team thereafter proceeded to accused-appellants house. Even though accused-appellant was not around, the CIDG team was allowed entry into the house by Magno Baludda (Magno), accusedappellants father, after he was shown a copy of the Search Warrant. SPO2 Fernandez and Police Senior 8 Inspector Ricarte Marquez guarded the surroundings of the house, while SPO1 Carrera and PO2 Chavez searched inside. SPO1 Carrera and PO2 Chavez began searching the rooms on the first floor in the presence of Magno and Pascual. They continued their search on the second floor. They saw a movable cabinet in accusedappellants room, below which they found a brick of marijuana and a firearm. At around six oclock that evening, accused-appellant arrived with her son. The police officers asked accused-appellant to open a 9 built-in cabinet, in which they saw eight more bricks of marijuana. PO2 Chavez issued a receipt for the 10 items confiscated from accused-appellant and a certification stating that the items were confiscated and recovered from the house and in accused-appellants presence. The nine bricks of marijuana were brought to the National Bureau of Investigation (NBI) for examination. The defense, on the other hand, had an entirely different version of what transpired that day. It presented four witnesses, namely, accused-appellant herself; Beniasan Tuan (Beniasan), accused-appellants

husband; Magno, accused-appellants father; and Mabini Maskay (Maskay), the Barangay Captain of Barangay Gabriela Silang.1avvphi1 In her testimony, accused-appellant declared that she worked as a vendor at Hangar Market. Sometime in January 2000, while she was selling vegetables at Hangar Market, her son arrived with two police 11 officers who asked her to go home because of a letter from the court. At about six oclock in the afternoon, she and her husband Beniasan reached their residence and found a green paper bag with marijuana in their sala. According to the police officers, they got the bag from a room on the first floor of accused-appellants house. Accused-appellant explained that the room where the bag of marijuana was found was previously rented by boarders. The boarders padlocked the room because they still had things 12 inside and they had paid their rent up to the end of January 2000. The police officers also informed accused-appellant that they got a gun from under a cabinet in the latters room, which accused-appellant 13 disputed since her room was always left open and it was where her children play. Accused-appellant alleged that a Search Warrant was issued for her house because of a quarrel with her neighbor named Lourdes Estillore (Estillore). Accused-appellant filed a complaint for the demolition of Estillores house 14 which was constructed on the road. Beniasan supported the testimony of his wife, accused-appellant. He narrated that he and accusedappellant were at their Hangar Market stall when two police officers came and asked them to go home. Beniasan and accused-appellant arrived at their residence at around six oclock in the evening and were shown the marijuana the police officers supposedly got from the first floor of the house. The police officers then made Beniasan sign a certification of the list of items purportedly confiscated from the 15 house. Magno testified that he resided at the first floor of accused-appellants residence. He was present when 16 the search was conducted but denied that the Search Warrant was shown to him. He attested that the confiscated items were found from the vacant room at the first floor of accused-appellants house which was previously occupied by boarders. Said room was padlocked but was forced open by the police officers. In the course of the police officers search, they pulled something from under the bed that was 17 wrapped in green cellophane, but Magno did not know the contents thereof. The police officers also searched the rooms of accused-appellant and her children at the second floor of the house, during which they allegedly found a gun under the cabinet in accused-appellants room. Magno claimed that he did not 18 personally witness the finding of the gun and was merely informed about it by the police officers. Maskay, the Barangay Captain of Barangay Gabriela Silang, Baguio City, was the last to testify for the defense. He corroborated accused-appellants allegation that the latter had a quarrel with Estillore, and this could be the reason behind the filing of the present criminal cases. He further remembered that the members of the CIDG went to his office on January 24, 2000 to ask about the location of accused19 appellants house. The RTC, in its Decision dated April 9, 2002, found accused-appellant guilty as charged and adjudged thus: WHEREFORE, judgment is hereby rendered as follows: 1. In Criminal Case No. 17619-R, the Court finds the accused Estela Tuan guilty beyond reasonable doubt of the offense of illegal possession of marijuana (nine [9] bricks of dried marijuana leaves with an approximate weight of 18.750 kilograms and the one [1] plastic bag containing the dried marijuana weighing about .3 kilograms) in violation of Section 8, Article II of Republic Act No. 6425 as amended by Section 13 of Republic Act 7659 as charged in the information and sentences her to the penalty of reclusion perpetua and to pay a fine of P500,000.00 without subsidiary imprisonment in case of insolvency.

The nine (9) bricks of dried marijuana leaves with an approximate weight of 18.750 kilograms and one (1) plastic bag containing dried marijuana leaves weighing approximately .3 kilograms (Exhibit F, F-1, F-1-A to F-1-J) are ordered confiscated and forfeited in favor of the State to be destroyed immediately in accordance with law. The accused Estela Tuan being a detention prisoner is entitled to be credited 4/5 of her preventive imprisonment in the service of her sentence in accordance with Article 29 of the Revised Penal Code; and 2. In Criminal Case No. 17620-R, the Court finds the accused Estela Tuan guilty beyond reasonable doubt of the offense of illegal possession of firearms (one [1] caliber .357 S & W revolver), a high powered firearm, without any license, permit or authority issued by the Government to keep the same in violation of Section 1, Republic Act No. 8294 which amended Section 1 of PD 1866 as charged in the information and hereby sentences her, applying the Indeterminate Sentence Law, to imprisonment ranging from 4 years 9 months and 10 days of prision correccional in its maximum period as Minimum to 6 years and 8 months of prision mayor in its minimum period as Maximum and a fine of P30,000.00 without subsidiary imprisonment in case of insolvency. The firearm caliber .357 S & W revolver without serial number is ordered forfeited in favor of the State to be disposed of immediately in accordance with law. The accused Estela Tuan being a detention prisoner is entitled to be credited 4/5 of her preventive 20 imprisonment in the service of her sentence in accordance with Article 29 of the Revised Penal Code. The records of the two criminal cases were forwarded to this Court by the RTC, but the Court issued a 21 Resolution dated October 13, 2004 transferring said records to the Court of Appeals pursuant to People 22 v. Mateo. On September 21, 2006, the Court of Appeals promulgated its Decision. The Court of Appeals held that the contested search and consequent seizure of the marijuana bricks were done pursuant to the Search Warrant validly issued by the MTCC. There was no showing of procedural defects or lapses in the issuance of said Search Warrant as the records support that the issuing judge determined probable cause only after conducting the searching inquiry and personal examination of the applicant and the latters witnesses, in compliance with the requirements of the Constitution. Hence, the appellate court affirmed the conviction of accused-appellant for illegal possession of marijuana. The Court of Appeals, however, modified the appealed RTC judgment by acquitting accused-appellant of the charge for illegal possession of firearm. According to the appellate court, the records were bereft of evidence that the gun supposedly confiscated from accused-appellant was unlicensed. The absence of a firearm license was simply presumed by the police officers because the gun was a defective paltik with no serial number. That the said condition of the gun did not dispense with the need for the prosecution to establish that it was unlicensed through the testimony or certification of the appropriate officer from the Board of the Firearms and Explosives Bureau of the Philippine National Police. In the end, the Court of Appeals decreed: WHEREFORE, premises considered, the instant appeal is PARTLY GRANTED. The assailed Decision of the RTC of Baguio City, Branch 6, dated April 9, 2002, is hereby MODIFIED such that the conviction of accused-appellant for Violation of Section 8, Art. II, RA 6425, as amended, is AFFIRMED while her conviction for Violation of PD 1866, as amended, is REVERSED and SET ASIDE. Accused-appellant is 23 accordingly ACQUITTED of the latter offense.

In its Resolution dated October 20, 2006, the Court of Appeals gave due course to accused-appellants Partial Notice of Appeal and accordingly forwarded the records of the case to this Court. This Court then issued a Resolution dated February 28, 2007 directing the parties to file their respective 25 supplemental briefs, if they so desired, within 30 days from notice. Accused-appellant opted not to file a supplemental brief and manifested that she was adopting her arguments in the Appellants Brief since the 26 same had already assiduously discussed her innocence of the crime charged. The People likewise manifested that it would no longer file a supplemental brief as the issues have all been addressed in its Appellees Brief. Accused-appellant raised the following assignment of errors in her Brief:
27 24

THE TRIAL COURT GRAVELY ERRED IN GIVING FULL FAITH AND CREDENCE TO THE INCREDIBLE AND CONTRADICTORY TESTIMONIES OF THE POLICE OFFICERS. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIMES CHARGED DESPITE FAILURE OF THE PROSECUTION TO PROVE HER GUILT BEYOND REASONABLE DOUBT. THE TRIAL COURT ERRED IN NOT CONSIDERING AS VOID THE SEARCH WARRANT ISSUED AGAINST THE ACCUSED-APPELLANT. Given that accused-appellant was already acquitted of the charge of violation of Presidential Decree No. 1866 on the ground of reasonable doubt in Criminal Case No. 17620-R, her instant appeal relates only to her conviction for illegal possession of prohibited or regulated drugs in Criminal Case No. 17619-R. The Court can no longer pass upon the propriety of accused-appellants acquittal in Criminal Case No. 17620R because of the rule that a judgment acquitting the accused is final and immediately executory upon its promulgation, and that accordingly, the State may not seek its review without placing the accused in double jeopardy. Such acquittal is final and unappealable on the ground of double jeopardy whether it 28 happens at the trial court or on appeal at the Court of Appeals. In a prosecution for violation of the Dangerous Drugs Law, such as Criminal Case No. 17619-R, a case becomes a contest of credibility of witnesses and their testimonies. In such a situation, this Court generally relies upon the assessment by the trial court, which had the distinct advantage of observing the conduct or demeanor of the witnesses while they were testifying. Hence, its factual findings are accorded respect even finality absent any showing that certain facts of weight and substance bearing on the 29 elements of the crime have been overlooked, misapprehended or misapplied. The Court finds no reason to deviate from the general rule in the case at bar. Illegal possession of prohibited or regulated drugs is committed when the following elements concur: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possesses the said 30 drug. All the foregoing elements were duly proven to exist in Criminal Case No. 17619-R. The search conducted by SPO1 Carrera and PO2 Chavez in accused-appellants house yielded nine bricks of marijuana. Marijuana is a prohibited drug, thus, accused-appellants possession thereof could not have been authorized by law in any way. Accused-appellant evidently possessed the marijuana freely and consciously, even offering the same for sale. The bricks of marijuana were found in accused-appellants residence over which she had complete control. In fact, some of the marijuana were found in accusedappellants own room.

Accused-appellant challenges the judgment of the RTC, affirmed by the Court of Appeals, finding her guilty of illegal possession of marijuana, by pointing out certain inconsistencies in the testimonies of prosecution witnesses that supposedly manifested their lack of credibility, i.e., the date of the test buy and the manner by which the doors of the rooms of the house were opened. These alleged inconsistencies and contradictions pertain to minor details and are so inconsequential that they do not in any way affect the credibility of the witnesses nor detract from the established fact of illegal possession of marijuana by accused-appellant at her house. The Court has previously held that discrepancies and inconsistencies in the testimonies of witnesses referring to minor details, and not in actuality touching upon the central fact of the crime, do not impair their credibility. Testimonies of witnesses need only corroborate each other on important and relevant details concerning the principal 31 occurrence. Inconsistencies as to minor details and collateral matters do not affect the credibility of the witnesses nor the veracity or weight of their testimonies. Such minor inconsistencies may even serve to strengthen their 32 credibility as they negate any suspicion that the testimonies have been rehearsed. Accused-appellant further questions the non-presentation as witnesses of Lad-ing and Tudlong, the informants, and Pascual, the neighbor who supposedly witnessed the implementation of the Search Warrant, during the joint trial of Criminal Case Nos. 17619-R and 17620-R before the RTC. This Court though is unconvinced that such non-presentation of witnesses is fatal to Criminal Case No. 17619-R. The prosecution has the exclusive prerogative to determine whom to present as witnesses. The prosecution need not present each and every witness but only such as may be needed to meet the quantum of proof necessary to establish the guilt of the accused beyond reasonable doubt. The testimonies of the other witnesses may, therefore, be dispensed with if they are merely corroborative in nature. The Court has ruled that the non-presentation of corroborative witnesses does not constitute 33 suppression of evidence and is not fatal to the prosecutions case. Although Criminal Case No. 17619-R involves illegal possession of marijuana, the following 34 pronouncement of this Court in People v. Salazar, relating to the illegal sale of the same drug, still rings true: Neither is her right to confront witnesses against her affected by the prosecution's failure to present the informer who pointed to her as a drug pusher. The presentation of an informant in an illegal drugs case is not essential for conviction nor is it indispensable for a successful prosecution because his testimony would be merely corroborative and cumulative. In a case involving the sale of illegal drugs, what should be proven beyond reasonable doubt is the fact of the sale itself. Hence, like the non-presentation of the marked money used in buying the contraband, the non-presentation of the informer on the witness stand would not necessarily create a hiatus in the prosecutions' evidence. (Emphasis ours.) Lastly, accused-appellant insists that the items allegedly seized from her house are inadmissible as evidence because the Search Warrant issued for her house was invalid for failing to comply with the constitutional and statutory requirements. Accused-appellant specifically pointed out the following defects which made said Search Warrant void: (1) the informants, Lad-ing and Tudlong, made misrepresentation of facts in the Application for Search Warrant filed with the MTCC; (2) Judge Cortes of the MTCC failed to consider the informants admission that they themselves were selling marijuana; and (3) the Search Warrant failed to particularly describe the place to be searched because the house was a two-storey building composed of several rooms. The right of a person against unreasonable searches and seizure is recognized and protected by no less than the Constitution, particularly, Sections 2 and 3(2) of Article III which provide:

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. SEC. 3. x x x (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. (Emphases ours.) Accordingly, Sections 4 and 5, Rule 126 of the Revised Rules on Criminal Procedure laid down the following requisites for the issuance of a valid search warrant: SEC. 4. Requisites for issuing search warrant. A search warrant shall not issue except upon probable cause in connection with one specific offense 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 things to be seized which may be anywhere in the Philippines. SEC. 5. Examination of complainant; record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. Therefore, the validity of the issuance of a search warrant rests upon the following factors: (1) it must be issued upon probable cause; (2) the probable cause must be determined by the judge himself and not by the applicant or any other person; (3) in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and (4) the 35 warrant issued must particularly describe the place to be searched and persons or things to be seized. There is no dispute herein that the second and third factors for a validly issued search warrant were complied with, i.e., personal determination of probable cause by Judge Cortes; and examination, under oath or affirmation, of SPO2 Fernandez and the two informants, Lad-ing and Tudlong, by Judge Cortes. What is left for the Court to determine is compliance with the first and fourth factors, i.e., existence of probable cause; and particular description of the place to be searched and things to be seized. In People v. Aruta, the Court defined probable cause as follows: Although probable cause eludes exact and concrete definition, it generally signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he is charged. It likewise refers to the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the item(s), article(s) or object(s) sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of our rules of evidence of which his knowledge is technically nil. Rather, he relies on the calculus of common sense which all reasonable men have in abundance. The same quantum of evidence is required in determining probable cause relative to search. Before a search warrant can be issued, it must be shown by substantial evidence that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched.
36

A magistrates determination of probable cause for the issuance of a search warrant is paid great deference by a reviewing court, as long as there was substantial basis for that determination. Substantial basis means that the questions of the examining judge brought out such facts and circumstances as would lead a reasonably discreet and prudent man to believe that an offense has been committed, and the objects in connection with the offense sought to be seized are in the place sought to be 37 searched. Such substantial basis exists in this case. Judge Cortes found probable cause for the issuance of the Search Warrant for accused-appellants residence after said judges personal examination of SPO2 Fernandez, the applicant; and Lad-ing and Tudlong, the informants. SPO2 Fernandez based his Application for Search Warrant not only on the information relayed to him by Lad-ing and Tudlong. He also arranged for a test buy and conducted surveillance of accused-appellant. He testified before Judge Cortes: COURT: Q. You are applying for a Search Warrant and you alleged in your application that Estela Tuan of Brgy. Gabriela Silang, Baguio City, is in possession of dried marijuana leaves and marijuana hashish, how did you come to know about this matter? A. Through the two male persons by the name of Frank Lad-ing and Jerry Tudlong, Your Honor. Q. When did these two male persons report to your office? A. January 22, Your Honor. Q. This year? A. Yes, your honor. Q. To whom did they report? A. To me personally, Your Honor. Q. How did they report the matter? A. They reported that a certain Estela Tuan is selling dried Marijuana leaves and marijuana hashish, Your Honor. Q. What else? A. She is not only selling marijuana but also selling vegetables at the Trading Post in La Trinidad, Your Honor. Q. They just told you, she is selling marijuana and selling vegetables, that is already sufficient proof or sufficient probable cause she is in possession of marijuana, what else did they report? A. That they are also selling marijuana in large volume at their house. Q. What did you do when you asked them regarding that matter?

A. They had a test buy and they were able to buy some commodities yesterday, Your honor. Q. Who bought? A. Tudlong and Lad-ing, Your Honor. Q. How did you go about it? A. I accompanied the said persons and kept watch over them and gave them money after which, they were able to purchase and when they purchased the said items or drugs, they were even informed that if you wanted to sell then you could come and get. Your Honor. COURT: Q. Where is that P300.00? A. It is with them, Your Honor. Q. You did not entrap her? A. No, Your Honor, because it is only a test buy. Q: And that was January 22. Why did you not apply immediately for search warrant? A: Because we still have to look at the area and see to it that there are really some buyers or people who would go and leave the place, Your Honor. Q: What did you observe? A: Well, there are persons who would go inside and after going inside, they would come out bringing along with them something else. Q: Did you not interview these people? A: No, Your Honor. We did not bother.
38

Lad-ing and Tudlong affirmed before Judge Cortes that they were the ones who informed SPO2 Fernandez that accused-appellant was keeping and selling marijuana at her house, and that they took part in the test buy. Lad-ing narrated: COURT: Q: Mr. Lad-ing, you said that you are working at the Trading Post. What kind of work do you have there? A: I am a middleman of the vegetable dealers, Your Honor. COURT:

Q: Did you come to know of this person Estela Tuan? A: Yes, Your Honor, because there was an incident wherein we were conducting our line of business when they came and joined us and we became partners, Your Honor. Q: You said, they, how many of you? A: A certain Jerry Tudlong, Estela Tuan and myself, Your Honor. Q: In other words, Estela Tuan went with you and later on she became your partner in that business? A: Yes, Your Honor. Q: And so what happened when she became a partner of your business? A: When we were about to divide our profit, we then went at their residence at Gabriela Silang, Baguio City, Your Honor. Q: What happened? A: While we then sitted ourselves at the sala, she told us that if we wanted to earn some more, she told us that she has in her possession marijuana which could be sold, Your Honor. Q: And so, what happened? A: After which, she showed the marijuana, Your Honor. Q: Where was the marijuana? A: It was placed in a cellophane, in a newspaper, Your Honor. Q: How big? A: A dimension of 10 x 4 inches, Your Honor. Q: With that size, where did she show you the box of this cellophane? A: At the place where we were sitted at the receiving room, Your Honor. Q: In other words, she went to get it and then presented or showed it to you? A: Yes, Your Honor. Q: Where did she go, if you know? A: Because at the sala, there is a certain room located at the side that is the place where she got the same, Your Honor. Q: Where is this house of Estela Tuan located, is it along the road or inside the road or what?

A: It is near the road but you have to walk in a little distance, Your Honor. Q: Will you describe the place where Estela Tuan is residing? A: Well, it is a two storey house, the walls are made of galvanized iron Sheets, Your Honor. COURT: Q: Do you know who are staying there? A: I do not know who is living with her, however, that is her residence, Your Honor. Q: How many times did you go there? A: It was my second time to go at that time we were sent by PO Fernandez to purchase marijuana, Your Honor. Q: Where is the marijuana now? A: It is in the possession of PO Fernandez, Your Honor. Q: Where is the marijuana placed? A: In a newspaper, Your Honor. Q: What happened next? A: We handed to her the amount of P300.00, your Honor. Q: And she gave you that marijuana? A: Yes, Your Honor. xxxx Q: How many rooms are there in the first floor of the house of Estela Tuan? A: Three rooms, Your Honor, it has a dining room and beside the place is the receiving room where we sitted ourselves, Your Honor. Q: When you already bought marijuana from her, what did she tell you, if any? A; Well, if we would be interested to buy more, I still have stocks here, Your Honor. Tudlong recounted in more detail what happened during the test buy: COURT: Q: My question is, when she told you that she has some substance for sale for profit and you mentioned marijuana, did you talk immediately with Frank or what did you do?
39

A: We reported the matter to the Criminal Investigation and Detection Group, your Honor. xxxx Q: What time? A: We went to the office at 9:00 9:30 oclock in the morning, Your Honor. Q: When you went there, what did you do? A: The amount of P300.00 was given to Frank and we were instructed to purchase, Your Honor. Q: Did you go? A: Yes, Your Honor. xxxx Q: Will you tell what happened when you went to the house of the woman? A: Well, we were allowed to go inside the house after which, we were made to sit down at the receiving area or sala, Your Honor. Q: When you went there, you were allowed to enter immediately? A: Yes, Your Honor. Q: Who allowed you to enter? A: The female person, Your Honor. Q: What happened when you were asked to be sitted? A: During that time, Frank and the female person were the ones conferring, Your Honor. Q: Did you hear what they were talking about? A: That Frank was purchasing marijuana, Your Honor. Q: What did the woman tell you? A: After we handed the money, a plastic which was transparent, was then handed to Frank, it was a plastic and there was a newspaper inside, Your Honor. xxxx Q: So, you did not actually see what is in the newspaper? A: No, Your Honor, however, I know that that is marijuana. Q: Why?

A: Because that was our purpose, to buy marijuana, Your Honor. Q: And you have not gotten marijuana without Estela Tuan informing you? A: Yes, Your Honor. Q: Will you tell us what kind of materials were used in the house of Estela Tuan? A: Two storey, the walls are made of GI sheets, Your Honor.\ Q: Is the house beside the road or do you have to walk? A: It is near the road. Upon reaching the road, you still have to walk a short distance, Your Honor. Q: Where did Estela Tuan get the newspaper placed in a transparent plastic? A: She got it from a room because were then made to wait at the sala, Your Honor. Q: Did she tell you how much she can sell marijuana? A: She told us, Your Honor. Q: What? A: Well, the marijuana that we purchased was worth P300.00[.] However, we could divide it into two small packs and we could sell it at P20.00 per piece so that you can also have some gain. COURT: Q: After that, to whom did you sell? A: We did not sell the marijuana, Your Honor. Q: I thought you are going to sell marijuana and so you went there? A: We were just instructed by PO Fernandez to verify what we are telling him was true, Your 40 Honor. Accused-appellants contention that MTCC Judge Cortes failed to consider the informants admission that they themselves were selling marijuana is utterly without merit. First, even after carefully reviewing the testimonies of Lad-ing and Tudlong before Judge Cortes, this Court did not find a categorical admission by either of the two informants that they themselves were selling marijuana. In fact, Tudlong expressly denied that he and Lad-ing sold the marijuana, having only bought the same from the accused-appellant for the test buy. Moreover, even if the informants were also selling marijuana, it would not have affected the validity of the Search Warrant for accused-appellants house. The criminal liabilities of accusedappellant and the informants would be separate and distinct. The investigation and prosecution of one could proceed independently of the other. Equally without merit is accused-appellants assertion that the Search Warrant did not describe with particularity the place to be searched.

A description of the place to be searched is sufficient if the officer serving the warrant can, with reasonable effort, ascertain and identify the place intended and distinguish it from other places in the community. A designation or description that points out the place to be searched to the exclusion of all others, and on inquiry unerringly leads the peace officers to it, satisfies the constitutional requirement of 41 definiteness. In the case at bar, the address and description of the place to be searched in the Search Warrant was specific enough. There was only one house located at the stated address, which was accused-appellants residence, consisting of a structure with two floors and composed of several rooms. In view of the foregoing, the Court upholds the validity of the Search Warrant for accused-appellants house issued by MTCC Judge Cortes, and any items seized as a result of the search conducted by virtue thereof, may be presented as evidence against the accused-appellant. Since it is beyond any cavil of doubt that the accused-appellant is, indeed, guilty of violation of Article II, Section 8 of Republic Act No. 6425, as amended, the Court shall now consider the appropriate penalty to be imposed upon her. Article II, Section 8, in relation to Section 20(3), of Republic Act No. 6425, as amended, provides: SEC. 8. Possession or Use of Prohibited Drugs.- The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall possess or use any prohibited drug subject to the provisions of Section 20 hereof. (As amended by R.A. 7659) Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instruments of the Crime. - The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the following quantities: 1. 40 grams or more of opium; 2. 40 grams or more of morphine; 3. 200 grams or more of shabu or methylamphetamine hydrochloride; 4. 40 grams or more of heroin; 5. 750 grams or more of Indian hemp or marijuana; 6. 50 grams or more of marijuana resin or marijuana resin oil; 7. 40 grams or more of cocaine or cocaine hydrocholoride; or 8. In the case of other dangerous drugs, the quantity of which is far beyond therapeutic requirements, as determined and promulgated by the Dangerous Drugs Board, after public consultations/hearings conducted for the purpose. (Emphasis supplied.) Pursuant to Article II, Section 8 of Republic Act No. 6425, as amended, illegal possession of 750 grams or more of the prohibited drug marijuana is punishable by reclusion perpetua to death. Accused-appellant had in her possession a total of 19,050 grams of marijuana, for which she was properly sentenced to reclusion perpetua by the RTC, affirmed by the Court of Appeals. In the same vein, the fine of P500,000.00 imposed upon accused-appellant by the RTC, affirmed by the Court of Appeals, is also correct, as the same is still within the range of fines imposable on any person

who possessed prohibited drugs without any authority, under Article II, Section 8 of Republic Act No. 6425, as amended. WHEREFORE, premises considered, the Decision dated September 21, 2006 of the Court of Appeals in CA-G.R. CR.-H.C. No. 00381, is hereby AFFIRMED in toto. No costs. SO ORDERED.

ROMER SY TAN, Petitioner,

G.R. No. 174570

Present: -versusCORONA, C.J., Chairperson, VELASCO, JR., NACHURA, PERALTA, and MENDOZA, JJ. Promulgated:

SY TIONG GUE, FELICIDAD CHAN SY, SY CHIM, SY TIONG SAN, SY YU BUN, SY YU SHIONG, SY YU SAN, and BRYAN SY LIM, Respondents.

December 15, 2010 x-----------------------------------------------------------------------------------------x

RESOLUTION

PERALTA, J.:

On February 17, 2010, this Court rendered a Decision in G.R. No. 174570 entitled Romer Sy Tan v. Sy Tiong Gue, et al., the decretal portion of which reads, as follows: WHEREFORE, premises considered, the petition is GRANTED. The Decision and Resolution dated December 29, 2005 and August 18, 2006, respectively, of the Court of Appeals in CA-G.R. SP No. 81389 are REVERSED and SET ASIDE. The Orders of the RTC dated September 1, 2003 and October 28, 2003 are REINSTATED. The validity of Search Warrant Nos. 03-3611 and 03-3612 is SUSTAINED. On March 22, 2010, respondents filed a Motion for Reconsideration wherein respondents informed this Court,albeit belatedly, that the Regional Trial Court (RTC) granted their motion for the withdrawal of the Information filed in Criminal Case No. 06-241375. As such, respondents prayed that the decision be reconsidered and set aside and that the quashal of the subject search warrants be rendered moot and academic on the basis of the dismissal of the criminal case. In his Comment dated July 7, 2010, petitioner maintains that the motion is a mere reiteration of what respondents have previously alleged in their Comment and which have been passed upon by this Court in the subject decision. Petitioner alleges that he also filed with the Office of the City Prosecutor of Manila a Complaint for Qualified Theft against the respondents based on the same incidents and that should the Information for Qualified Theft be filed with the proper court, the items seized by virtue of the subject search warrants will be used as evidence therein. On August 6, 2010, respondents filed their Reply. On September 8, 2010, this Court issued a Resolution wherein respondents were required to submit a certified true copy of the Order of the RTC dated November 14, 2008, which granted their motion to withdraw the information.
[4] [3] [2]

[1]

On October 22, 2010, respondents complied with the Courts directive and submitted a certified [5] true copy of the Order. In granting the motion to withdraw the Information, the RTC took into consideration the Amended Decision of the Court of Appeals (CA) in CA-G.R. SP No. 90368 dated August 29, 2006, which affirmed the findings of the City Prosecutor of Manila and the Secretary of Justice that the elements of Robbery, i.e., unlawful taking with intent to gain, with force and intimidation, were absent. Thus, there was [6] lack of probable cause, warranting the withdrawal of the Information. The RTC also considered that the said pronouncements of the CA were affirmed by no less than this Court in G.R. No. 177829 in the [7] Resolution dated November 12, 2007. Accordingly, the RTC granted respondents motion to withdraw the information without prejudice, the dispositive portion of which reads: WHEREFORE, the motion to withdraw information is hereby GRANTED and the case is DISMISSED without prejudice. SO ORDERED. Consequently, in view of the withdrawal of the Information for Robbery, the quashal of the subject search warrants and the determination of the issue of whether or not there was probable cause warranting the issuance by the RTC of the said search warrants for respondents alleged acts of robbery has been rendered moot and academic. Verily, there is no more reason to further delve into the propriety [8] of the quashal of the search warrants as it has no more practical legal effect. Furthermore, even if an Information for Qualified Theft be later filed on the basis of the same incident subject matter of the dismissed case of robbery, petitioner cannot include the seized items as part of the evidence therein. Contrary to petitioners contention, he cannot use the items seized as evidence in any other offense except in that in which the subject search warrants were issued. Section 4, Rule 126 of the Revised Rules of Court provides: Section 4. Requisites for issuing search warrant. A search warrant shall not issue except upon probable cause in connection with one specific offense 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 things to be seized which may be anywhere in the Philippines. Thus, a search warrant may be issued only if there is probable cause in connection with only one specific offense alleged in an application on the basis of the applicants personal knowledge and his or her witnesses. Petitioner cannot, therefore, utilize the evidence seized by virtue of the search warrants issued in connection with the case of Robbery in a separate case of Qualified Theft, even if both cases emanated from the same incident. Moreover, considering that the withdrawal of the Information was based on the findings of the CA, as affirmed by this Court, that there was no probable cause to indict respondents for the crime of Robbery absent the essential element of unlawful taking, which is likewise an essential element for the crime of Qualified Theft, all offenses which are necessarily included in the crime of Robbery can no longer be filed, much more, prosper.

Based on the foregoing, the Court resolves to Grant the motion. WHEREFORE, premises considered, the Motion for Reconsideration filed by the respondents is GRANTED. The Decision of this Court dated February 17, 2010 is RECONSIDERED and SET ASIDE. The petition filed by Romer Sy Tan is DENIED for being MOOT and ACADEMIC. SO ORDERED.

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 171980 Present: CORONA, C. J., Chairperson, VELASCO, JR., LEONARDO-DE CASTRO, BERSAMIN,* and PEREZ, JJ.

- versus -

OLIVE RUBIO MAMARIL, Accused-Appellant.

Promulgated: October 6, 2010

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

DECISION

PEREZ, J.: For review through this appeal is the Decision dated 31 August 2005 of the Court of Appeals in CA-G.R. CR. No. 28482 which affirmed the conviction of herein accused-appellant OLIVE RUBIO [3] MAMARIL of possession of dangerous drugs in violation of Section 11, Article II of Republic Act No. 9165 or the Comprehensive Dangerous Drugs Act of 2002. The dispositive portion of the assailed decision reads: WHEREFORE, premises considered, the appeal is DISMISSED for lack of [4] merit. The challenged judgment of the court a quo is hereby AFFIRMED. The affirmed disposition reads: WHEREFORE, upon proof of guilt beyond reasonable doubt, this court sentences accused Olive Rubio Mamaril to suffer an indeterminate prison term of twelve (12) years and one (1) day as minimum to twenty (20) years as maximum and a fine ofP300,000 for [5] violation of Section 11, Article II, of R.A. 9165 .
[1] [2]

The facts as presented by the prosecution before the appellate court follow: On 25 March 2003, at 9:30 oclock in the evening, SPO4 Alexis Gotidoc, along with the members of Intel Operatives of Tarlac City Police Station and Philippine Drug Enforcement Agency (PDEA), implemented Search Warrant No. 144C dated 18 March 2003 issued by Judge Alipio Yumul of Branch 66, Regional Trial Court, Capas, Tarlac against the appellant in her residence at Zone [6] 1, Barangay Maliwalo, Tarlac City, Province of Tarlac. Prior to the search, the police team invited Barangay Kagawad Oscar Tabamo of Barangay Maliwalo to witness the conduct of the search and seizure operation in the appellants house. With Barangay Kagawad Tabamo, the police team presented the search warrant to appellant and [7] informed her of the purpose of the search and her constitutional rights.

Afterwards, SPO4 Gotidoc, the designated searcher, started searching the appellants house, in the presence of the appellant and Kagawad Tabamo. During his search, he found on the top cover of the refrigerator one (1) plastic sachet containing white crystalline substance. Thereafter he prepared a [8] Certificate of Good Search and Confiscation Receipt which the appellant refused to sign. The plastic sachet was brought to the Tarlac Provincial Crime Laboratory located at Tarlac Provincial Hospital for qualitative examination. The examination conducted by Engr. Marcene G. Agala, the Forensic Chemist who tested the white crystalline substance, yielded positive results for 0.055 gram [9] of Methamphetamine Hydrochloride, commonly known as shabu, a dangerous drug. The factual version presented by the defense is: On 25 March 2003, at 9:30 o clock in the evening the police officers arrived at appellants house and showed her a search warrant. Thereafter, the policemen searched her house but found nothing. Then a certain Police Officer Pangilinan asked her where she was sleeping. When she replied that she was inside the hut, the police officers proceeded to and searched the place and found the plastic [10] sachet containing the shabu. Thereafter, she was brought to the sub-station at Maliwalo and was told, particularly by SPO4 Gotidoc and a certain Maam Dulay that in exchange of P20,000.00, no case would be filed against [11] her. When she told them that she did not have money, she was detained. However, on crossexamination, the appellant admitted that the alleged extortion of P20,000.00 was not reported to the [12] higher ranking police officers. Appellant claims that the police officers framed her up and planted the shabu inside her house [13] because of her refusal to give them money. Eventually, an Information was filed against the appellant which reads: That on March 25, 2003 at around 9:30 oclock in the evening at Tarlac City and within the jurisdiction of this Honorable Court, accused, did then and there willfully, unlawfully and criminally have in her possession and control Methamphetamine Hydrochloride known as Shabu, a dangerous drug, weighing more or less 0.055 gram, without being authorized by law. CONTRARY TO LAW
[14]

Upon arraignment, the appellant, assisted by the de-officio counsel, entered a plea of not guilty. On 21 April 2004, the trial court found the accused-appellant guilty of violation of Section 11, [15] Article II, of R.A. 9165. On appeal, the Court of Appeals ruled that the evidence for the prosecution fully proved beyond reasonable doubt the elements necessary to successfully prosecute a case for illegal possession of a regulated drug, namely, (a) the accused is in possession of an item or an object identified to be a prohibited or a regulated drug, (b) such possession is not authorized by law and (c) the accused freely [16] and consciously possessed said drug. Centered on the conduct of the search of appellants house that yielded the prohibited substance, the Court of Appeals upheld the trial court on the finding that after a careful evaluation and analysis of the arguments presented by the prosecution and the defense, we hold that the search conducted by the INTEL Operatives of Tarlac City Police Station, in coordination with the PDEA, on the residence of the accused-appellant on 25 March 2003 at Zone 1,Barangay Maliwalo, Tarlac City and the seizure therein of one (1) plastic pack of white crystalline substance of methamphetamine hydrochloride or shabu weighing 0.055 gram are legal. As a consequence of the legal search, the said methamphetamine

hydrochloride or shabu seized on the occasion thereof, is admissible in evidence against the accused[17] appellant. In this appeal, accused-appellant, through her new counsel from the Public Attorneys Office, goes further back, presenting new arguments, that (1) the search warrant was not based on probable cause, hence, the evidence allegedly obtained through it may not be admitted to support the accused[18] appellants conviction; and (2) the presumption of regularity in the performance of official functions by [19] public officers cannot prevail over the presumption of innocence. We first deal with the original position of the accused which, in this petition, begins with the contention of non-compliance with all the requisites of illegal possession of dangerous drugs. We agree with the rulings of the trial court and the Court of Appeals that there was indeed full satisfaction of the requisites for the conviction of the accused. The trial court found that the evidence presented by the prosecution was not adequately defeated. Re-stating that in illegal possession of prohibited drugs, there are only three (3) elements to secure conviction: (1) accused is in possession of the prohibited drugs; (2) such possession is not [20] authorized by law; and (3) accused consciously and freely possessed the prohibited drugs, the trial court held that all these were established beyond doubt. It determined that appellant failed to proffer [21] evidence enough to discredit the prosecution and render doubtful his guilt. The Court of Appeals found no reason to overturn the finding of the trial court. It held that: After a careful evaluation and analysis of the arguments presented by the prosecution and the defense, we hold that the search by the INTEL Operatives of Tarlac City Police Station, in coordination with the PDEA, on the residence of the accusedappellant on March 25, 2003 at Zone 1, Barangay Maliwalo, Tarlac City and the seizure therein of one (1) plastic pack of white crystalline substance of methamphetamine hydrochloride or shabu weighing 0.055 gram are legal. As a consequence of the legal search, the said methamphetamine hydrochloride or shabu seized on the occasion [22] thereof, is admissible in evidence against the accused-appellant. We will not reverse this holding. The repeated contentions of frame-up of the accused[23] appellant and that the dangerous drug of methamphetamine hydrochloride was planted by the police officers do not deserve further considerations by this Court. While We are aware that in some cases, law enforcers resort to the practice of planting evidence in order that to, inter alia, harass, nevertheless the defense of frame-up in drug cases requires strong and convincing evidence because of the presumption that the police officers performed their duties regularly and that they acted within the bounds of their [24] authority. Frame-up, like alibi, is generally viewed with caution by the Court because it is easy to contrive and difficult to disprove. It is a common and standard line of defense in prosecutions of violations of the [25] Dangerous Drugs Act. And so is the likewise repeated referral to the primacy of the constitutional [26] presumption of innocence over the presumption of regularity in the performance of public functions, the contention being that the frame-up argument is supported by the constitutional presumption of innocence. The argument is without merit. Indeed it is a constitutional mandate that in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved and that on the other hand, it is in the Rules of [28] Court that. The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:
[27]

xxx m. That official duty has been regularly performed; (Emphasis supplied) xxx

In the case at hand, the so-called frame-up was virtually pure allegation bereft of credible proof. [29] The narration of the police officer who implemented the search warrant, was found after trial and appellate review as the true story. It is on firmer ground than the self-serving statement of the accused[30] appellant of frame-up. The defense cannot solely rely upon the constitutional presumption of innocence for, while it is constitutional, the presumption is not conclusive. Notably, the accused-appellant [31] herself stated in her brief that no proof was proffered by the accused-appellant of the police officers alleged ill motive. Stated otherwise, the narration of the incident by law enforcers, buttressed by the presumption that they have regularly performed their duties in the absence of convincing proof to the contrary, must be [32] given weight. We now deal with the late submission about the validity of the search warrant. A party cannot change his theory on appeal nor raise in the appellate court any question of law or of fact that was not raised in the court below or which was not within the issue raised by the parties in [33] their pleadings. In a long line of cases, this Court held that points of law, theories, issues and arguments not adequately brought to the attention of the trial court ordinarily will not be considered by a reviewing court as they cannot be raised for the first time on appeal because this would be offensive to the basic rules of [34] fair play, justice and due process. We opt to get out of the ordinary in this case. After all, technicalities must serve, not burden the cause of justice. It is a prudent course of action to excuse a technical lapse and afford the parties a [35] review of the case on appeal to attain the ends of justice. We thus allow the new arguments for the final disposition of this case. The contention of the accused-appellant, as asserted through the Public Attorneys Office, is that [36] the issued search warrant was not based on probable cause. The accused-appellant relied heavily on its argument that SPO4 Gotidoc, as the applicant of the search warrant, did not testify on facts personally [37] known to him but simply relied on stories that the accused- appellant was peddling illegal drugs. The requisites for the issuance of a search warrant are: (1) probable cause is present; (2) such probable cause must be determined personally by the judge; (3) the judge must examine, in writing and under oath or affirmation, the complainant and the witnesses he or she may produce; (4) the applicant and the witnesses testify on the facts personally known to them; and (5) the warrant specifically describes [38] the place to be searched and the things to be seized. On the other hand, probable cause means such facts and circumstances which would lead a reasonable discreet and prudent man to believe that an offense has been committed and that the objects [39] sought in connection with the offense are in the place sought to be searched.

Based on the records, the Court is convinced that the questioned search warrant was based on a probable cause. A portion of the direct testimony of SPO4 Gotidoc is hereby quoted: Q: What is your basis for applying for search warrant against the accused? A: Because there were many persons who were going to her place and weve been hearing news that she is selling prohibited drugs and some of them were even identified, sir. Q: But you did not conduct any surveillance before you applied for search warrant? A: Prior to the application for search warrant, we conducted surveillance already. Q: Because personally you heard that the accused was dealing prohibited drugs and that was the basis for you to apply for search warrant with Branch 66? A: Yes, sir. xxx Section 6, Rule 126 of the Rules on Criminal Procedure provides that: If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. (Emphasis supplied)
[40]

(Emphasis supplied)

There is no general formula or fixed rule for the determination of probable cause since the same must be decided in light of the conditions obtaining in given situations and its existence depends to a [41] large degree upon the findings or opinion of the judge conducting the examination. It is presumed that a judicial function has been regularly performed, absent a showing to the contrary. A magistrates determination of a probable cause for the issuance of a search warrant is paid [42] with great deference by a reviewing court, as long as there was substantial basis for that determination. The defenses reliance of the quoted testimony of the police officer alone, without any other evidence to show that there was indeed lack of personal knowledge, is insufficient to overturn the finding of the trial court. The accused-appellant, having failed to present substantial rebuttal evidence to defeat the presumption of regularity of duty of the issuing judge, will not be sustained by this Court. WHEREFORE, the instant appeal is DENIED. Accordingly, the decision of the Court of Appeals in CA-G.R. CR. No. 28482 is hereby AFFIRMED. Costs against the appellant.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, Plaintiff-appellee, - versus NARCISO AGULAY y LOPEZ, Accused-Appellant.

G.R. No. 181747 Present: TINGA, CHICO-NAZARIO, Acting Chairperson, VELASCO, REYES and BRION,** JJ. Promulgated: September 26, 2008
* *

x---------------------------------------------------x DECISION CHICO-NAZARIO, J.: For Review under Rule 45 of the Revised Rules of Court is the Decision dated 31 August 2007 of the Court of Appeals in CA-G.R. CR No. 01994 entitled, People of the Philippines v. Narciso Agulay y Lopez, 2 affirming the Decision rendered by the Regional Trial Court (RTC) of Quezon City, Branch 103, in Criminal Case No. Q-02-111597, finding accused-appellant Narciso Agulay y Lopez guilty of illegal sale and illegal possession of methamphetamine hydrochloride more popularly known as "shabu." On 26 August 2002, accused-appellant was charged in an Information before the RTC of Quezon City with violation of Section 5, Article II of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002. The Information reads: That on or about the 24th day of August, 2002 in Quezon City, Philippines, the said accused, not being authorized by law to sell, dispense, deliver, transport or distribute any dangerous drug, did, then and there, willfully, and unlawfully sell, dispense, deliver, transport, distribute or act as broker in the said 3 transaction, zero point twenty five (0.25) gram of methylamphetamine hydrochloride a dangerous drug. When arraigned on 23 September 2002, accused-appellant pleaded not guilty. Thereafter, trial ensued. During the trial, the prosecution presented the testimonies of Police Officer (PO) 2 Raul Herrera, the poseur-buyer, PO2 Reyno Riparip (member of the buy-bust team), and Forensic Analyst Leonard M. Jabonillo. The prosecutions version of the events are narrated as follows: On 24 August 2002, at around 6:30 in the evening, an informant arrived at Police Station 5 and reported to the Chief of the Station Drug Enforcement Unit (SDEU) that a certain "Sing" had been selling shabu at Brgy. Sta. Lucia, in Novaliches, Quezon City. A police entrapment team was formed. PO2 Herrera was assigned as poseur-buyer and was given aP100.00 bill, which he marked "RH," his initials. A pre-operation report bearing control No. 24-SDEU-02 was made and signed by Police Inspector (P/Insp.) Palaleo Adag dated 24 August 2002.
4 1

The buy-bust team rode in two vehicles, a Space Wagon and a Besta van, with a group of police officers inside. They stopped along J.P. Rizal St., Sta. Lucia, Novaliches, Quezon City. PO2 Herrera and his informant stepped down from their vehicle and walked. The informant pointed the target pusher to PO2 Herrera. They approached and after being introduced to Sing, PO2 Herrera bought shabu using the marked P100.00 bill. Sing gave a small plastic sachet to PO2 Herrera who, thereafter, scratched his head as a signal. The other police companions of PO2 Herrera, who were deployed nearby, then rushed to the crime scene. PO2 Herrera grabbed Sing and then frisked him. PO2 Herrera recovered two (2) plastic sachets from Sings pocket. He also got the marked money from Sing. The following specimens were submitted to the Philippine National Police (PNP) Crime Laboratory of the Central Police District in Quezon City for chemical analysis: Three (3) heat-sealed transparent plastic sachets each containing white crystalline substance having the following markings and recorded net weights: (A) (RH1-RG1) = 0.07 gm (B) (RH2-RG2) = 0.09 gm (C) (RH3-RG3) = 0.09 gm
5

Chemistry Report No. D-1020-2002 dated 25 August 2002 and prepared and presented in court by Forensic Analyst Leonard M. Jabonillo (of the PNP Crime Laboratory of the Central Police District of Quezon City) yielded the following results FINDINGS: Qualitative examination conducted on the above-stated specimens gave POSITIVE result to the test for Methylamphetamine Hydrochloride, a regulated drug. x x x. CONCLUSION: Specimen A, B and C contain Methylamphetamine Hydrochloride, a regulated drug.
6

The defense, on the other hand, had an entirely different version of what transpired that night. It presented three witnesses: accused-appellant Narciso Agulay, Benjamin Agulay (brother of Narciso), and Bayani de Leon. Accused-appellant Narciso Agulay narrated that at around 8:30 to 9:00 oclock in the evening of 24 August 2002, he was manning his store when a car stopped in front of it. The passengers of said vehicle opened its window and poked a gun at him. The passengers alighted from the car, approached him and put handcuffs on him. Accused-appellant asked what violation he had committed or if they had a search warrant with them, but the arresting team just told him to go with them. Accused-appellant requested that he be brought to the barangay hall first, but this request was left unheeded. Instead, he was immediately brought to the police station. Upon reaching the police station, PO2 Herrera handed something to PO1 Riparip. Thereafter, PO2 Herrera and PO1 Riparip approached and punched him on the chest. They removed his shorts and showed him a plastic sachet. Later that night, the arresting officers placed him inside the detention cell. After about 30 minutes, PO1 Riparip and PO2 Herrera approached him. PO2 Herrera told him that if he would not be able to give them P50,000.00, they would file a case against him, 7 to which he answered, "I could not do anything because I do not have money."

Benjamin Agulay, brother of accused-appellant, testified that at around 8:30 to 9:00 oclock in the evening of 24 August 2002, while he was smoking in their compound, a group of armed men in civilian clothes entered the place and arrested his brother, who was then manning a store. He tried asking the arresting officers what the violation of accused-appellant was but he was ignored. They then took accusedappellant to the police station. On the other hand, the testimony of Bayani de Leon (a police asset of SPO1 Valdez of the buy-bust team) narrated that he, together with P/Insp. Suha, PO1 Herrera, PO2 Riparip, PO2 Gulferic and an arrested individual were on board a car while conducting a follow-up operation regarding a hold-up incident. When the car they were riding reached No. 51 J.P. Rizal Street, their team alighted and entered a compound. They saw accused-appellant and arrested him as he was allegedly involved in a hold-up incident, not with drug pushing. Accused-appellant was taken to Police Station 5. On 17 February 2006, the RTC found accused-appellant guilty of the offense charged, and meted out to him the penalty of Life Imprisonment. The dispositive portion of the RTC Decision is as follows: Accordingly, judgment is rendered finding the accused NARCISO AGULAY Y LOPEZ GUILTY beyond reasonable doubt of the crime of violation of Section 5 of R.A. 9165 as charged (for drug pushing) and he is hereby sentenced to suffer a jail term of LIFE IMPRISONMENT and to pay a fine ofP500,000.00. The methylamphetamine hydrochloride (in 3 sachets) involved in this case is ordered transmitted to the 8 PDEA thru DDB for proper disposition. Accused-appellant filed his Notice of Appeal with Motion to Litigate as Pauper Litigant on 7 March 2006. Accused-appellant filed his appellants brief with the Court of Appeals on 22 September 2006. On 31 August 2007, the Court of Appeals issued its Decision denying accused-appellants appeal as follows: WHEREFORE, finding no reversible error in the Decision appealed from, the appeal is DENIED. The 10 Decision of the RTC dated February 17, 2006 is AFFIRMED. Petitioner elevated the case to this Court via Notice of Appeal Resolution dated 2 April 2008, this Court resolved to:
11 9

dated 21 September 2007. In its

(3) Notify the parties that they may file their respective supplemental briefs, if they so desire, within thirty (30) days from notice. To avoid a repetition of the arguments, accused-appellant opted to adopt his appellants brief dated 22 September 2006 while plaintiff-appellee adopted its appellees brief dated 22 January 2007, instead of filing their respective supplemental briefs. The issues raised are the following: I. THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT THE ACCUSED-APPELLANT WAS ILLEGALLY ARRESTED AND AS SUCH, THE SACHETS OF SHABU ALLEGEDLY RECOVERED FROM HIM ARE INADMISSIBLE IN EVIDENCE. II. THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED.

III. ACCUSED-APPELLANT CANNOT BE HELD LIABLE FOR THE CONSUMMATED CRIME OF ILLEGAL SALE OF SHABU BECAUSE OF THE FAILURE OF THE PROSECUTION TO ESTABLISH ALL OF ITS ESSENTIAL ELEMENTS. Accused-appellant maintains that his arrest was illegal, and that the subsequent seizure of shabu allegedly taken from him is inadmissible as evidence against him. He also claims that the prosecution failed to prove his guilt beyond reasonable doubt, since the prosecution failed to show all the essential elements of an illegal sale of shabu. From the foregoing issues raised by accused-appellant, the basic issue to be resolved hinges on whether accused-appellant was arrested in a legitimate "buy-bust" operation. The law presumes that an accused in a criminal prosecution is innocent until the contrary is proved. The presumption of innocence of an accused in a criminal case is a basic constitutional principle, fleshed out by procedural rules which place on the prosecution the burden of proving that an accused is guilty of the offense charged by proof beyond reasonable doubt. Whether the degree of proof has been met is largely left for the trial courts to determine. Consistent with the rulings of this Court, it is a fundamental and settled rule that factual findings of the trial court and its calibration of the testimonies of the witnesses and its conclusions anchored on its findings are accorded by the appellate court high respect, if not conclusive effect, more so when affirmed by the Court of Appeals, as in this case. The exception is when it is established that the trial court ignored, overlooked, misconstrued or misinterpreted cogent facts and circumstances which, if considered, will change the outcome of the case. Considering that what is at stake here is the liberty of accused-appellant, we have carefully reviewed and evaluated the records of the RTC and the Court of Appeals. On evaluation of the records, this Court finds no justification to deviate from the lower courts findings and conclusion that accused-appellant was arrested in flagrante delicto selling shabu. In order to successfully prosecute an accused for illegal sale of drugs, the prosecution must be able to prove the following elements: (1) identities of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor.
12

The testimonies of the prosecution witnesses proved that all the elements of the crime have been established: that the buy-bust operation took place, and that the shabu subject of the sale was brought to and identified in court. Moreover, PO2 Herrera, the poseur-buyer, positively identified accused-appellant as the person who sold to him the sachet containing the crystalline substance which was confirmed to be 13 shabu. He narrated the events which took place the night accused-appellant was apprehended: FIS. JURADO: You said that you are stationed at Police Station 5, what were your duties there? WITNESS: As an operative sir. FIS. JURADO: What was your tour of duty on August 24, 2002? WITNESS:

Broken hour sir. FIS. JURADO: But at around 6:30 in the evening, you are on duty? WITNESS: Yes, sir. FIS. JURADO: While you are on duty at that time and place, will you please inform this Honorable Court if there was an operation? WITNESS: Yes, sir. FIS JURADO: What is that operation all about? WITNESS: Buy bust operation sir. FIS. JURADO: Regarding what? WITNESS: Narcotic sir. FIS. JURADO: What is this all about? WITNESS: Alias Sing at Sta. Lucia sir. FIS. JURADO: How did you prepare for that buy-bust operation? WITNESS: An informant arrived and we reported to our Chief of SDEU and the Chief gave us P100.00 and I acted as poseur-buyer sir.

FIS. MJURADO: Aside from that what else? WITNESS: I put my markings sir. FIS. JURADO: What is that markings (sic)? WITNESS: R.H. sir. FIS. JURADO: What is the significance of this R.H.? WITNESS: That mean(sic) Raul Herrera sir. FIS. JURADO: Do you have said money with you? WITNESS: Yes sir. FIS. JURADO: Will you please show that to this Honorable Court? WITNESS: Here sir. xxxx FIS. JURADO: After you prepared the buy bust money, what else did you do? WITNESS: We proceeded to the target location, sir.

FIS. JURADO: You said "we" who were with you? WITNESS: P/Insp. Addag, Rosario, SPO1 El Valdez, SPO2 Rey Valdez, Nogoy, Riparip and the confidential informant sir. FIS. JURADO: How did you proceed to the place of Sta. Lucia? WITNESS: We rode in a tinted vehicles (sic) one space wagon and Besta van, sir. FIS. JURADO: When you arrived in that place, what happened there? WITNESS: We asked our confidential informant to look for Sing, sir. FIS. JURADO: Did the confidential informant locate the said Sing? WITNESS: Yes sir along the street sir. FIS. JURADO: Where? WITNESS: J.P. Rizal St., Sta. Lucia, Novaliches, Quezon City, sir. FIS. JURADO: After your confidential informant found this Sing, what happened next? WITNESS: Our confidential informant asked me to go with him to see Sing to buy drug(s) sir. FIS. JURADO:

Where is (sic) the transaction took (sic) place? WITNESS: Along the street sir. FIS. JURADO: What happened there? WITNESS: I was introduced by the confidential informant to Sing as buyer sir. FIS. JURADO: What happened next? WITNESS: I bought from him worth one hundred peso (sic) of shabu, sir. FIS. JURADO: What (sic) Sing do, if any? WITNESS: Sing gave me one small plastic sachet sir. FIS JURADO: After that what did you do next? WITNESS: I executed our pre-arranged signal sir. FIS. JURADO: For whom you executed this pre-arranged signal? WITNESS: To my companions sir. FIS. JURADO: Where are (sic) your companions at that time?

WITNESS: On board at (sic) Besta and Space Wagon sir. FIS. JURADO: What was the pre-arranged signal? WITNESS: I scratched my head sir. FIS. JURADO: After scratching your head, what happened next? WITNESS: My back-up rushed to our place, sir. FIS. JURADO: After that what did you do next? WITNESS: I grabbed Sing and arrested him sir. FIS. JURADO: How about the money? WITNESS: I recovered the buy bust money from Sing, sir. FIS. JURADO: You mentioned plastic sachet, I am showing to you three (3) plastic sachets, which of these three was taken or sold to you? WITNESS: This one sir. FIS. JURADO: How did you come to know that this is the one? WITNESS:

I have my initial(sic) R.H. sir. xxxx FIS. JURADO: Aside from that, what happened next? WITNESS: When I frisked Sing, I was able to recover from him two (2) more plastic sachets sir. FIS. JURADO: Where did you get that plastic sachet? WITNESS: Right side pocket sir. FIS. JURADO: Short or pant? WITNESS: Short sir. FIS. JURADO: Where are these two plastic sachets that you are mentioning? WITNESS: Here sir. FIS. JURADO: How did you come to know that these are the two plastic sachets? WITNESS: I put my markings sir RH. xxxx COURT: After that what happened next?

WITNESS: We brought him to our Police Station, sir. FIS. JURADO: You mentioned Sing if this Sing is inside this courtroom, will you be able to identify him? WITNESS: Yes sir that man. INTERPRETER: Witness pointing to a man who identified himself as Narciso Agulay and his nickname is "Sing."
14

His testimony was corroborated on material points by PO1 Riparip, one of the back-up operatives in the buy-bust operation that night, to wit: FIS. JURADO: You said that you are a police officer, where were you assigned on August 24, 2002? WITNESS: I was assigned at Police Station 5 for drug(sic) sir. FIS. JURADO: What was your tour of duty at that time? WITNESS: Broken hour sir. FIS. JURADO: You were on duty on August 24, 2002 at 6:30 in the evening? WITNESS: Yes sir. FIS. JURADO: What was your functions(sic) as such? WITNESS: To conduct follow up operation on drugs and other crimes sir.

FIS. JURADO: Did you conduct operation on that day? WITNESS: Yes sir we conducted Narcotic operation sir. FIS. JURADO: You said you conducted narcotic operation, where? WITNESS: Sta. Lucia, particularly at J.P. Rizal St., Novaliches, Quezon City, sir. FIS. JURADO: To whom this Narcotic operation conducted? WITNESS: To certain Alias Sing, sir. FIS. JURADO: Who were with you at that time? WITNESS: Valdez, Rosario, Herrera, Addag and other(sic) sir. FIS. JURADO: What was your participation in the said operation? WITNESS: I acted as back up sir. FIS. JURADO: As back up, what did you do? WITNESS: We position ourselves to a certain distance and where we can see the poseur-buyer sir. FIS. JURADO:

Who was the poseur-buyer? WITNESS: Herrera sir. FIS. JURADO: What did you see? WITNESS: The poseur buyer executed the pre-arranged signal and we rushed to his position and arrested the target person Sing sir. FIS. JURADO: When we (sic) rushed to the target place what happened next? WITNESS: Herrera frisked Sing and we brought him to the police station sir.
15

Accused-appellant contends his arrest was illegal, making the sachets of shabu allegedly recovered from him inadmissible in evidence. Accused-appellants claim is devoid of merit for it is a well-established rule that an arrest made after an entrapment operation does not require a warrant inasmuch as it is considered a valid "warrantless arrest," in line with the provisions of Rule 113, Section 5(a) of the Revised Rules of Court, to wit: Section 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. A buy-bust operation is a form of entrapment which in recent years has been accepted as a valid and effective mode of apprehending drug pushers. In a buy-bust operation, the idea to commit a crime 16 originates from the offender, without anybody inducing or prodding him to commit the offense. If carried out with due regard for constitutional and legal safeguards, a buy-bust operation deserves judicial 17 sanction. There are eight (8) instances when a warrantless search and seizure is valid, to wit: (1) consented searches; (2) as an incident to a lawful arrest; (3) searches of vessels and aircraft for violation of immigration, customs, and drug laws; (4) searches of moving vehicles; (5) searches of automobiles at borders or constructive borders; (6) where the prohibited articles are in "plain view;" (7) searches of buildings and premises to enforce fire, sanitary, and building regulations; and (8) "stop and frisk" operations. Considering that the legitimacy of the buy-bust operation is beyond question, the subsequent warrantless arrest and warrantless search and seizure, were permissible. The search, clearly being incident to a lawful arrest, needed no warrant for its validity. Thus, contrary to accused-appellant's contention, the

contraband seized from him, having been obtained as a result of the buy-bust operation to which the defense failed to impute any irregularity, was correctly admitted in evidence. Noteworthy is the fact that 18 prior to the dispatch of the entrapment team, a pre-operation report was made bearing Control No. 24SDEU-02 dated 24 August 2005. The pre-operation report stated that an Anti-Narcotic Operation was to be conducted at Barangay Sta. Lucia in Novaliches, Quezon City, and indicated the police officers involved, including the vehicles to be used. This only bolsters the testimony of PO2 Herrera and PO1 Riparip as to the legitimacy of the buy-bust operation. The defense contends there is a clear doubt on whether the specimens examined by the chemist and eventually presented in court were the same specimens recovered from accused-appellant. The prosecutions failure to submit in evidence the required physical inventory and photograph of the evidence 19 confiscated pursuant to Section 21, Article II of Republic Act No. 9165 will not discharge accusedappellant from his crime. Non-compliance with said section is not fatal and will not render an accuseds 20 arrest illegal or the items seized/confiscated from him inadmissible. In People v. Del Monte, this Court held that what is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. In the instant case, we find the integrity of the drugs seized intact, and there is no doubt that the three sachets of drugs seized from accused-appellant were the same ones examined for chemical analysis, and that the crystalline substance contained therein was later on determined to be positive for methylamphetamine hydrochloride (shabu). The defense, in fact, admitted the existence and authenticity of the request for chemical analysis and the subsequent result thereof: FIS. JURADO: Chemist Engr. Jabonillo is present your honor. COURT: Any proposal for stipulation? FIS. JURADO: That there is letter request for examination of white crystalline substance marked as follows: A (pH1); B (pH2) and C (pH3)? ATTY. QUILAS: Admitted your honor. FIS. JURADO: As a result of the said qualitative examination chemist issued a chemistry report No. D-1020-2002? ATTY. QUILAS: Admitted your honor. FIS. JURADO:

In view of the admission your honor, may we request that Letter request dated August 25, 2002 be marked as Exhibit D and Chemistry Report No. D-1020-2002 as Exhibit E your honor. COURT: Mark it. In view of the presence of the Chemist, Engr. Jabonillo, He is being called to the witness stand for cross 21 examination of the defense counsel. On cross-examination by the defense, Forensic Analyst Jabonillo stated that the drugs presented in court were the same drugs examined by him and submitted to him on 25 August 2002: ATTY. QUILAS: In this particular case, you received three plastic sachets? WITNESS: Yes sir. ATTY. QUILAS: When you receive these three plastic sachets were these already segregated or in one plastic container? WITNESS: I received it as is sir. xxxx ATTY. QUILAS: How sure you were (sic) that three plastic sachet (sic) containing methylamphetamine hydrochloride were the same drug (sic) submitted to you on August 25, 2002. WITNESS: I personally place (sic) my marking sir. ATTY. QUILAS: You want to impress before this Honorable Court these were the same items that you received on August 25, 2002? WITNESS: Yes sir.
22

On cross-examination by the defense, the same witness testified, to wit:

ATTY. DE GUZMAN: I understand you are Chemical Engineer, am I correct? WITNESS: Yes, sir. ATTY. DE GUZMAN: And that you have been (sic) worked as a Chemist in the PNP for several years? WITNESS: Since March, 200 (sic), sir. ATTY. DE GUZMAN: What would be your practice when specimen submitted for you to examine, was it already pre-marked by the person who submit for examination? WITNESS: Normally, sir. ATTY. DE GUZMAN: What do you mean normally, you also put the marking? WITNESS: Yes, sir. ATTY. DE GUZMAN: So everything has pre-mark? WITNESS: Yes, sir. ATTY. DE GUZMAN: And then when pre-mark specimen is submitted to you, you merely analyze the same is that correct? WITNESS: Yes, sir. ATTY. DE GUZMAN:

And you do not change any marking there? WITNESS: Yes, sir. ATTY. DE GUZMAN: Now in the marking that we have it appearing that Exhibits A, B, and C are PH, am I correct? WITNESS: RH sir, not PH. ATTY. DE GUZMAN: Because it shows in the zerox (sic) copy that it is RH because of that slant. Now when this specimen was submitted to you was it three specimens submitted to you or only one specimen A, B, C were ranking to one? WITNESS: No sir, three (3) specimens.
23

It is significant to note that accused-appellant stated in his demurrer to evidence that the specimens submitted for laboratory examination were not the three plastic sachets that were allegedly recovered by 24 the poseur-buyer PO2 Raul Herrera, which may thus be construed to be an implied admission. Accused-appellants allegation that he is a victim of a frame-up, which has been held as a shop-worn defense of those accused in drug-related cases, is viewed by the Court with disfavor. Like the defense of 25 alibi, frame-up is an allegation that can easily be concocted. For this claim to prosper, the defense must adduce clear and convincing evidence to overcome the presumption of regularity of official acts of 26 government officials. Absent any proof of motive to falsely accuse him of such a grave offense, the presumption of regularity in the performance of official duty and the findings of the trial court with respect 27 to the credibility of witnesses shall prevail over that of the accused-appellant. Apart from his defense that he is a victim of a frame-up and extortion by the police officers, accusedappellant could not present any other viable defense. Again, while the presumption of regularity in the performance of official duty by law enforcement agents should not by itself prevail over the presumption of innocence, for the claim of frame-up to prosper, the defense must be able to present clear and convincing evidence to overcome this presumption of regularity. This, it failed to do. Bayani de Leons testimony that the accused was being taken as a carnapping suspect only further weakened the defense, considering it was totally out of sync with the testimony of accused-appellant vis-vis the positive testimonies of the police officers on the events that transpired on the night of 24 August 2002 when the buy-bust operation was conducted. It is also highly suspect and unusual that accusedappellant never mentioned that he was taken as a carnapping suspect if indeed this were the case, considering it would have been his ticket to freedom. To recall, on direct examination by the defense counsel, Bayani de Leon testified as follows: ATTY. CONCEPCION:

Mr. Witness, were you able to talk to Narciso Agulay that time he was arrested? WITNESS: Yes maam, when Narciso Agulay was put inside a room at Station 5 and in that room, I, Riparip and Herrera entered. ATTY. CONCEPCION: What was the conversation all about? WITNESS: He was being asked if he was one of those who held up a taxi maam. ATTY. CONCEPCION: What was the response of Narciso Agulay? WITNESS: Narciso Agulay was crying and at the same time denying that he was with that person. When we told him that the person we arrested with the firearm was pointing to him, he said that he does not know about that 28 incident and he does not know also that person who pointed him maam. Witness Bayani de Leons testimony is dubious and lacks credence. From the testimony of Bayani de Leon, it is apparent that accused-appellant would necessarily have known what he was being arrested for, which was entirely inconsistent with accused-appellants previous testimony. Such inconsistency further diminished the credibility of the defense witness. It would seem that Bayani de Leons testimony was but a mere afterthought. Moreover, Bayani de Leon testified that he allegedly came to know of the fact that accused-appellant was being charged under Republic Act No. 9165 when he (Bayani de Leon) was also detained at the city jail for robbery with homicide, testifying as follows: FIS. ARAULA: And you only knew that Narciso Agulay was charged of Section 5, R.A. 9165 when you were detained at the City Jail? WITNESS: Yes sir. FIS. ARAULLA: In fact, you were talking with each other? WITNESS: Yes sir, and I asked what is the case filed against him.

FIS. ARAULLA: And that is the time you know that Narciso Agulay was charged of (sic) Section 5? WITNESS: Yes sir.
29

This Court, thus, is in agreement with the trial court in finding that: Bayani himself appears to be a shady character. By his admission he is a bata or agent of PO Vasquez. As far as the court knows, such characters are used by the police because they are underworld character 30 (sic). Finally, the testimony of accused-appellants brother, Benjamin Agulay, is not convincing. Benjamin, being accused-appellants brother, we find him to be unreliable. Suffice it to say that, having been given by a relative of the accused-appellant, his testimony should be received with caution. On this premise, this Court has laid down the "objective" test in scrutinizing buy-bust operations. In 31 People v. Doria, we said: We therefore stress that the "objective" test in buy-bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that lawabiding citizens are not unlawfully induced to commit an offense. x x x. It bears to point out that prosecutions of cases for violation of the Dangerous Drugs Act arising from buybust operations largely depend on the credibility of the police officers who conducted the same, and unless clear and convincing evidence is proffered showing that the members of the buy-bust team were driven by any improper motive or were not properly performing their duty, their testimonies on the 32 operation deserve full faith and credit. The law presumes that an accused in a criminal prosecution is innocent until the contrary is proved. This presumption of innocence of an accused in a criminal case is consistent with a most fundamental constitutional principle, fleshed out by procedural rules which place on the prosecution the burden of proving that an accused is guilty of the offense charged by proof beyond reasonable doubt. This constitutional guarantee is so essential that the framers of the constitution found it imperative to keep the provision from the old constitution to emphasize the primacy of rights that no person shall be held to 34 answer for a criminal offense without due process of law. In his dissent, Justice Brion focused on the conviction that the buy-bust operation and the consequent seizure of the prohibited substance either did not take place or has not been proven beyond reasonable doubt because of a gap in the prosecutions evidence. Convinced that under the proven facts of the present case, the dissent maintains that the prosecution has not proven that a crime had been committed through proof beyond reasonable doubt -- that the three plastic sachets that were admitted into evidence during the trial were in fact the same items seized from the accused-appellant when he was arrested.
33

The guilt of accused-appellant was established beyond reasonable doubt. Contrary to the dissents claim, the totality of the evidence would indicate that the sale of the prohibited drug had taken place, and that the sale was adequately established and the prosecution witnesses clearly identified accused-appellant as the offender. Moreover, the seized items, proven positive to be shabu, were properly identified and presented before the court. To reiterate, in prosecutions for illegal sale of regulated or prohibited drugs, conviction is proper if the following elements are present: (1) the identity of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor. What is material is the proof that the transaction or sale actually took place, coupled with the presentation in court of the 35 prohibited or regulated drug. The term corpus delicti means the actual commission by someone of the particular crime charged. The procedure for the custody and disposition of confiscated, seized and/or surrendered dangerous drugs, among others, is provided under Section 21 (a), paragraph 1 of Article II of Republic Act No. 9165, to wit: (a) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; Section 21 (a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165, which implements said provision, reads: (a) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officers/team, shall not render void and invalid such seizures of and custody over said items. The above provision further states that non-compliance with the stipulated procedure, under justifiable grounds, shall not render void and invalid such seizures of and custody over said items, for as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officers. The evident purpose of the procedure provided for is the preservation of the integrity and evidentiary value of the seized items, as the same would be utilized in the determination of the guilt of or innocence of the accused. On the chain of custody of the seized drugs The dissent agreed with accused-appellants assertion that the police operatives failed to comply with the proper procedure in the chain of custody of the seized drugs. It premised that non-compliance with the procedure in Section 21(a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165 creates an irregularity and overcomes the presumption of regularity accorded police authorities in the performance of their official duties. This assumption is without merit. First, it must be made clear that in several cases[36] decided by the Court, failure by the buy-bust team to comply with said section did not prevent the presumption of regularity in the performance of duty from applying.

Second, even prior to the enactment of R.A. 9165, the requirements contained in Section 21(a) were already there per Dangerous Drugs Board Regulation No. 3, Series of 1979. Despite the presence of such regulation and its non-compliance by the buy-bust team, the Court still applied 37 such presumption. We held: The failure of the arresting police officers to comply with said DDB Regulation No. 3, Series of 1979 is a matter strictly between the Dangerous Drugs Board and the arresting officers and is totally irrelevant to the prosecution of the criminal case for the reason that the commission of the crime of illegal sale of a prohibited drug is considered consummated once the sale or transaction is established and the prosecution thereof is not undermined by the failure of the arresting officers to comply with the regulations of the Dangerous Drugs Board. While accused-appellant contends in his appellants brief that the police operatives did not submit the required inventory of the seized items pursuant to the provisions of Section 21 (a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165, the records belie this claim. On crossexamination by the defense, Police Officer (PO) 2 Herrera testified on making an inventory of the seized items. PO2 Herrera testified as follows: Q: When you arrested the suspect in this case, you confiscated two (2) items from him? A: Yes sir. Q: And you said that it is part of your procedure when you confiscated items from the suspect you made an inventory of the item confiscated? A: Yes sir. Q: Did you make inventory of the confiscated items? A: Yes sir it is with the police investigator.
38

Moreover, non-compliance with the procedure outlined in Section 21(a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165, shall not render void and invalid such seizures of and custody over said items, for as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officers. Consistent with this Courts pronouncements in People v. Bano and in People v. Miranda, contrary to appellants claim, there is no showing of a broken chain in the custody of the seized items, later on determined to be shabu, from the moment of its seizure by the entrapment team, to the investigating officer, to the time it was brought to the forensic chemist at the PNP Crime Laboratory for laboratory examination. It was duly established by documentary, testimonial, and object evidence, including the markings on the plastic sachets containing the shabu that the substance tested by the forensic chemist, whose laboratory tests were well-documented, was the same as that taken from accused-appellant. The records of the case indicate that after his arrest, accused-appellant was taken to the police station 41 and turned over to the police investigator. PO2 Herrera testified that he personally made the markings 42 "RH" (representing his initials) on the three sachets, the inventory of which was delivered to the police investigator. After the arrest, the seized items which had the markings "RH" alleged to contain shabu 43 were brought to the crime laboratory for examination. The request for laboratory examination and transfer of the confiscated sachets to the PNP crime laboratory was prepared by another officer, PO2 44 Gulferic, the designated officer-on-case. It was signed as well by the Chief of Office/Agency (SDEU/SIIB) Police Chief Inspector Leslie Castillo Castillo. The request indicated that the seized items 45 were delivered by PO2 Gulferic and received by Forensic Chemist Jabonillo. The three heat-sealed
39 40

transparent plastic sachets each containing white crystalline substance were later on determined to be positive for Methylamphetamine Hydrochloride or shabu. When the prosecution presented the marked sachets in court, PO2 Herrera positively identified the plastic sachets containing shabu which he bought from accused-appellant in the buy-bust operation. The sachets containing shabu had the markings "RH" as testified by Forensic Chemist Jabonillo. PO2 Herrera positively identified in court that he put his initials "RH" on the sachets. Thus, the identity of the drugs has been duly preserved and established by the prosecution. Besides, the integrity of the evidence is presumed to be preserved unless there is a showing of bad faith, ill will, or proof that the evidence has been tampered with. The accused-appellant in this case bears the burden to make some showing that the evidence was tampered or meddled with to overcome a presumption of regularity in the handling of 46 exhibits by public officers and a presumption that public officers properly discharged their duties. PO2 Herrera identified the sachets in court, and more importantly, accused-appellant had the opportunity to cross-examine him on this point. This Court, thus, sees no doubt that the sachets marked "RH" submitted for laboratory examination and which were later on found to be positive for shabu, were the same ones sold by accused-appellant to the poseur-buyer PO2 Herrera during the buy-bust operation. There is no question, therefore, that the identity of the prohibited drug in this case was certainly safeguarded. The dissent maintains that the chain of custody rule "would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence x x x." This means that all persons who came into contact with the seized drugs should testify in court; otherwise, the unbroken chain of custody would not be established. We disagree. Not all people who came into contact with the seized drugs are required to testify in court. There is nothing in the New Drugs Law or in any rule implementing the same that imposes such a requirement. As long as the chain of custody of the seized substance was clearly established not to have been broken and that the prosecution did not fail to identify properly the drugs seized, it is not indispensable that each and every person who came into possession of the drugs should take the witness 47 stand. In People v. Zeng Hua Dian, we held: After a thorough review of the records of this case, we find that the chain of custody of the seized substance was not broken and that the prosecution did not fail to identify properly the drugs seized in this case. The non-presentation of witnesses of other persons such as SPO1 Grafia, the evidence custodian, and PO3 Alamia, the officer on duty, is not a crucial point against the prosecution. The matter of presentation of witneses by the prosecution is not for the court to decide. The prosecution has the discretion as to how to present its case and it has the right to choose whom it wishes to present as witnesses. In connection with this, it must not be forgotten that entries in official records made by a public officer in 48 the performance of his duty are prima facie evidence of the facts therein stated. If it is now a requirement that all persons who came into contact with the seized drugs should testify in court, what will now happen to those public officers (e.g., person who issued request for examination of drugs or those who tested the drugs) who issued documents regarding the seized drugs? Shall they be obligated to testify despite the fact the entries in the documents they issued are prima facie evidence of the facts therein stated? We do not think so. Unless there is proof to the contrary, the entries in the documents are prima facie evidence of the facts therein stated and they need not testify thereon. The dissenting opinion likewise faults the prosecution for failing to disclose the identity of the person who submitted the item that was examined. The answer to this question can easily be seen from the stamp made in the request for drug analysis. There being no question by the accused on this matter, the entry thereon made by the public officer is definitely sufficient, same being an entry in official records.

On the credibility of the witnesses Prosecutions involving illegal drugs depend largely on the credibility of the police officers who conduct the 49 "buy-bust" operation. In cases involving violations of the Dangerous Drugs Law, appellate courts tend to heavily rely upon the trial court in assessing the credibility of witnesses, as it had the unique opportunity, denied to the appellate courts, to observe the witnesses and to note their demeanor, conduct, and 50 attitude under direct and cross-examination. This Court, not being a trier of facts itself, relies in good part on the assessment and evaluation by the trial court of the evidence, particularly the attestations of 51 the witnesses, presented to it. Thus, this Court will not interfere with the trial courts assessment of the credibility of witnesses considering there is nothing on record that shows some fact or circumstance of weight and influence which the trial court has overlooked, misappreciated, or misinterpreted. Unless compelling reasons are shown otherwise, this Court, not being a trier of facts itself, relies in good part on the assessment and evaluation by the trial court of the evidence, particularly the attestations of witnesses, presented to it. As this Court has held in a long line of cases, the trial court is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial. Accused-appellant casts suspicion on the means or methods by which the police officers conducted the operation and claims to be the victim of a frame-up. According to accused-appellant, the trial court relied heavily on the police officers testimonies that what had actually transpired was a buy-bust operation, which resulted in his arrest. In almost every case involving a buy-bust operation, the accused put up the defense of frame-up. Such claim is viewed with disfavor, because it can easily be feigned and fabricated. In People v. Uy, the Court reiterated its position on the matter, to wit: We are not unaware that in some instances law enforcers resort to the practice of planting evidence to extract information or even to harass civilians. However, like alibi, frame-up is a defense that has been invariably viewed by the Court with disfavor as it can easily be concocted [and] hence commonly used as a standard line of defense in most prosecutions arising from violations of the Dangerous Drugs Act. We realize the disastrous consequences on the enforcement of law and order, not to mention the well being of society, if the courts x x x accept in every instance this form of defense which can be so easily fabricated. It is precisely for this reason that the legal presumption that official duty has been regularly 52 performed exists. x x x In the case at bar, the testimonies of the prosecution witnesses are positive and convincing, sufficient to sustain the finding of the trial court and the Court of Appeals that accused-appellants guilt had been established beyond reasonable doubt. First, the testimony of PO2 Raul Herrera was spontaneous, straightforward and categorical. Second, PO1 Reyno Riparip, the back-up police operative of PO2 Herrera, corroborated the latters testimony on material points. Appellants defense of frame-up and self-serving assertion that he was mistakenly picked up by the police operatives for a carnapping case cannot prevail over the positive and straight-forward testimonies of the police operatives who have performed their duties regularly and in accordance with law, and have not 53 been shown to have been inspired by any improper motive or to have improperly performed their duty. To reiterate, Bayani de Leons testimony that the accused was being taken as a carnapping suspect only further weakened the defense, considering it was totally out of sync with the testimony of accusedappellant vis--vis the positive testimonies of the police officers on the events that transpired on the night of 24 August 2002 when the buy-bust operation was conducted. The arrest of accused-appellant was made in the course of an entrapment, following a surveillance operation, normally performed by police officers in the apprehension of violators of the Dangerous Drugs Act.

The Court so holds that in the absence of proof of any odious intent on the part of the police operatives to falsely impute such a serious crime, as the one imputed against accused-appellant, it will not allow their testimonies to be overcome by the self-serving claim of frame-up. Even assuming arguendo that the presumption of regularity in the performance of official duty has been overcome because of failure to comply with Section 21(a), same will not automatically lead to the exoneration of the accused. Said presumption is not the sole basis for the conviction of the accused. His conviction was based not solely on said presumption but on the documentary and real evidence, and more importantly, on the oral evidence by prosecution witnesses whom we found to be credible. It is to noted that one witness is sufficient to prove the corpus delicti that there was a consummated sale between the poseur buyer and the accused -- there being no quantum of proof as to the number of witnesses to prove the same. In the case at bar, the selling of drugs by accused was established. The dissent likewise argues that the ponencia cannot impose on the defense the burden of proving that the police had an improper motive in charging him because of the absence of the presumption of regularity. We find this untenable. It is settled that if the testimonies of the prosecution witnesses are not impugned, full faith and credit shall be accorded them. One impugns the testimony of witness during crossexamination. Did the defense satisfactorily impugn the testimonies of the prosecution witnesses when he said that he was a victim of hulidap and that the policemen were extorting money from him? Said declaration is definitely not sufficient to impugn the testimonies of the prosecution witnesses. His mere say so that he was victimized without clear and convincing evidence to support such claim does not suffice. If what he claims was indeed committed by the policemen, he should have sued or charged them. This, he did not do. Such inaction runs counter to the normal human conduct and behavior of one who 54 feels truly aggrieved by the act complained of. From the foregoing, We are fully convinced that the accused is guilty as charged. We thus hold that accused-appellants guilt has been established beyond reasonable doubt. This Court shall now determine the proper penalties to be imposed on him. An examination of the Information reveals that accused-appellant was charged with the unauthorized sale and delivery of dangerous drugs consisting of twenty-five hundredths (0.25) gram of methylamphetamine 55 hydrochloride (shabu). From the testimonies of the prosecution witnesses, only one sachet was sold 56 and delivered to the poseur-buyer, PO2 Herrera. The two other sachets were not sold or delivered, but were found by PO2 Herrera inside the right pocket of accused-appellants pair of shorts upon frisking, after the latter was caught in flagrante delicto during the buy-bust operation. Accused-appellant could have been charged with the possession of dangerous drugs on account of the second and third sachets. This was not done. He cannot then be convicted of possession of dangerous drugs, without being properly charged therewith, even if proved. Accused-appellant, however, is still guilty, as charged in the Information, of selling and delivering one sachet to the poseur-buyer. Under Republic Act No. 9165, the unauthorized sale of shabu carries with it the penalty of life imprisonment to death and a fine ranging from Five Hundred Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00). Pursuant, however, to the enactment of Republic Act No. 9346 entitled, "An Act Prohibiting the Imposition of Death Penalty in the Philippines," only life imprisonment and fine, instead of death, shall be imposed. We, therefore, find the penalty imposed by the trial court, as affirmed by the Court of Appeals life imprisonment and a fine of P500,000.00 to be proper.
57

WHEREFORE, premises considered, the Court of Appeals Decision in CA-G.R. CR No. 01994 dated 31 August 2007 is AFFIRMED. SO ORDERED.

G.R. No. 188611

June 16, 2010

PEOPLE OF THE PHILIPPINES, Appellee, vs. BELEN MARIACOS, Appellant. DECISION NACHURA, J.: Before this Court is an appeal from the Decision of the Court of Appeals (CA) in CA-G.R. CR-HC No. 2 02718, which affirmed the decision of the Regional Trial Court (RTC), Branch 29, San Fernando City, La Union, in Criminal Case No. 7144, finding appellant Belen Mariacos guilty of violating Article II, Section 5 of Republic Act (R.A.) No. 9165, or the Comprehensive Dangerous Drugs Act of 2002. The facts of the case, as summarized by the CA, are as follows: Accused-appellant Belen Mariacos was charged in an Information, dated November 7, 2005 of violating Section 5, Article II of Republic Act [No.] 9165, allegedly committed as follows: "That on or about the 27th day of October, 2005, in the Municipality of San Gabriel, Province of La Union, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously transport, deliver 7,030.3, (sic) grams of dried marijuana fruiting tops without the necessary permit or authority from the proper government agency or office. CONTRARY TO LAW." When arraigned on December 13, 2005, accused-appellant pleaded not guilty. During the pre-trial, the following were stipulated upon: "1. Accused admits that she is the same person identified in the information as Belen Mariacos; 2. That accused is a resident of Brgy. Lunoy, San Gabriel, La Union; 3. That at the time of the arrest of the accused, accused had just alighted from a passenger jeepney; 4. That the marijuana allegedly taken from the possession of the accused contained in two (2) bags were submitted for examination to the Crime Lab; 5. That per Chemistry Report No. D-109-2005, the alleged drug submitted for examination gave positive result for the presence of marijuana; 6. That the drugs allegedly obtained from the accused contained (sic) and submitted for examination weighed 7,030.3 grams; 7. The Prosecutor admits the existence of a counter-affidavit executed by the accused; and 8. The existence of the affidavits executed by the witnesses of the accused family (sic): Lyn Punasen, Mercedes Tila and Magdalena Carino." During the trial, the prosecution established the following evidence:
1

On October 26, 2005, in the evening, the San Gabriel Police Station of San Gabriel, La Union, conducted a checkpoint near the police station at the poblacion to intercept a suspected transportation of marijuana from Barangay Balbalayang, San Gabriel, La Union. The group at the checkpoint was composed of PO2 Lunes B. Pallayoc ("PO2 Pallayoc"), the Chief of Police, and other policemen. When the checkpoint did not yield any suspect or marijuana, the Chief of Police instructed PO2 Pallayoc to proceed to Barangay Balbalayang to conduct surveillance operation (sic). At dawn on October 27, 2005, in Barangay Balbalayang, PO2 Pallayoc met with a secret agent of the Barangay Intelligence Network who informed him that a baggage of marijuana had been loaded on a passenger jeepney that was about to leave for the poblacion. The agent mentioned three (3) bags and one (1) blue plastic bag. Further, the agent described a backpack bag with an "O.K." marking. PO2 Pallayoc then boarded the said jeepney and positioned himself on top thereof. While the vehicle was in motion, he found the black backpack with an "O.K." marking and peeked inside its contents. PO2 Pallayoc found bricks of marijuana wrapped in newspapers. He then asked the other passengers on top of the jeepney about the owner of the bag, but no one knew. When the jeepney reached the poblacion, PO2 Pallayoc alighted together with the other passengers. Unfortunately, he did not notice who took the black backpack from atop the jeepney. He only realized a few moments later that the said bag and three (3) other bags, including a blue plastic bag, were already being carried away by two (2) women. He caught up with the women and introduced himself as a policeman. He told them that they were under arrest, but one of the women got away. PO2 Pallayoc brought the woman, who was later identified as herein accused-appellant Belen Mariacos, and the bags to the police station. At the police station, the investigators contacted the Mayor of San Gabriel to witness the opening of the bags. When the Mayor arrived about fifteen (15) minutes later, the bags were opened and three (3) bricks of marijuana wrapped in newspaper, two (2) round bundles of marijuana, and two (2) bricks of marijuana fruiting tops, all wrapped in a newspaper, were recovered. Thereafter, the investigators marked, inventoried and forwarded the confiscated marijuana to the crime laboratory for examination. The laboratory examination showed that the stuff found in the bags all tested positive for marijuana, a dangerous drug. When it was accused-appellants turn to present evidence, she testified that: On October 27, 2005, at around 7:00 in the morning, accused-appellant, together with Lani Herbacio, was inside a passenger jeepney bound for the poblacion. While the jeepney was still at the terminal waiting for passengers, one Bennie Lao-ang ("Lao-ang"), her neighbor, requested her to carry a few bags which had been loaded on top of the jeepney. At first, accused-appellant refused, but she was persuaded later when she was told that she would only be carrying the bags. When they reached the poblacion, Lao-ang handed accused-appellant and her companion, Lani Herbacio, the bags, and then Lao-ang suddenly ran away. A few moments later, PO2 Pallayoc was upon them, arresting them. Without explanation, they were brought to the police station. When they were at the police station, Lani Herbacio disappeared. It was also at the police station that accused-appellant discovered the true contents of the bags which she was asked to carry. She maintained that she was not the owner of the bags and that she did not know 3 what were contained in the bags. At the police station (sic) she executed a Counter-Affidavit. On January 31, 2007, the RTC promulgated a decision, the dispositive portion of which states: WHEREFORE, the Court finds the accused Belen Mariacos GUILTY as charged and sentences here (sic) to suffer the penalty of life imprisonment and to pay a fine of P500,000.00. The 7,030.3 grams of marijuana are ordered confiscated and turned over to the Philippine Drug Enforcement Agency for destruction in the presence of the Court personnel and media.

SO ORDERED.

Appellant appealed her conviction to the CA. She argued that the trial court erred in considering the 5 evidence of the prosecution despite its inadmissibility. She claimed that her right against an unreasonable search was flagrantly violated by Police Officer (PO)2 Pallayoc when the latter searched the bag, assuming it was hers, without a search warrant and with no permission from her. She averred that PO2 Pallayocs purpose for apprehending her was to verify if the bag she was carrying was the same one he had illegally searched earlier. Moreover, appellant contended that there was no probable cause 6 for her arrest. Further, appellant claimed that the prosecution failed to prove the corpus delicti of the crime. She alleged that the apprehending police officers violated Dangerous Drugs Board Regulation No. 3, Series of 1979, as amended by Board Regulation No. 2, Series of 1990, which prescribes the procedure in the custody of seized prohibited and regulated drugs, instruments, apparatuses, and articles. The said regulation directs the apprehending team having initial custody and control of the drugs and/or paraphernalia, immediately after seizure or confiscation, to have the same physically inventoried and photographed in the presence of appellant or her representative, who shall be required to sign copies of the inventory. The failure to comply with this directive, appellant claimed, casts a serious doubt on the identity of the items allegedly confiscated from her. She, likewise, averred that the prosecution failed to prove that the items allegedly confiscated were indeed prohibited drugs, and to establish the chain of custody over the same. On the other hand, the People, through the Office of the Solicitor General (OSG), argued that the 8 warrantless arrest of appellant and the warrantless seizure of marijuana were valid and legal, justified as a search of a moving vehicle. It averred that PO2 Pallayoc had reasonable ground to believe that appellant had committed the crime of delivering dangerous drugs based on reliable information from their agent, which was confirmed when he peeked into the bags and smelled the distinctive odor of 9 marijuana. The OSG also argued that appellant was now estopped from questioning the illegality of her arrest since she voluntarily entered a plea of "not guilty" upon arraignment and participated in the trial and 10 presented her evidence. The OSG brushed aside appellants argument that the bricks of marijuana were not photographed and inventoried in her presence or that of her counsel immediately after confiscation, positing that physical inventory may be done at the nearest police station or at the nearest 11 office of the apprehending team, whichever was practicable. In a Decision dated January 19, 2009, the CA dismissed appellants appeal and affirmed the RTC 12 decision in toto. It held that the prosecution had successfully proven that appellant carried away from the jeepney a number of bags which, when inspected by the police, contained dangerous drugs. The CA ruled that appellant was caught in flagrante delicto of "carrying and conveying" the bag that contained the illegal drugs, and thus held that appellants warrantless arrest was valid. The appellate court ratiocinated: It must be stressed that PO2 Pallayoc had earlier ascertained the contents of the bags when he was aboard the jeep. He saw the bricks of marijuana wrapped in newspaper. That said marijuana was on board the jeepney to be delivered to a specified destination was already unlawful. PO2 Pallayoc needed only to see for himself to whom those bags belonged. So, when he saw accused-appellant carrying the bags, PO2 Pallayoc was within his lawful duty to make a warrantless arrest of accused-appellant. xxxx Firstly, this Court opines that the invocation of Section 2, Article III of the Constitution is misplaced. At the time, when PO2 Pallayoc looked into the contents of the suspicious bags, there was no identified owner. He asked the other passengers atop the jeepney but no one knew who owned the bags. Thus, there could be no violation of the right when no one was entitled thereto at that time. Secondly, the facts of the case show the urgency of the situation. The local police has been trying to intercept the transport of the illegal drugs for more than a day, to no avail. Thus, when PO2 Pallayoc was
7

tipped by the secret agent of the Barangay Intelligence Network, PO2 Pallayoc had no other recourse than to verify as promptly as possible the tip and check the contents of the bags. Thirdly, x x x the search was conducted in a moving vehicle. Time and again, a search of a moving vehicle has been justified on the ground that the mobility of motor vehicles makes it possible for the vehicle to move out of the locality or jurisdiction in which the warrant must be sought. Thus, under the facts, PO2 Pallayoc could not be expected to secure a search warrant in order to check the contents of the bags which were loaded on top of the moving jeepney. Otherwise, a search warrant would have been 13 of no use because the motor vehicle had already left the locality. Appellant is now before this Court, appealing her conviction. Once again, we are asked to determine the limits of the powers of the States agents to conduct searches and seizures. Over the years, this Court had laid down the rules on searches and seizures, providing, more or less, clear parameters in determining which are proper and which are not.1avvphi1 Appellants main argument before the CA centered on the inadmissibility of the evidence used against her. She claims that her constitutional right against unreasonable searches was flagrantly violated by the apprehending officer. Thus, we must determine if the search was lawful. If it was, then there would have been probable cause for the warrantless arrest of appellant. Article III, Section 2 of the Philippine Constitution provides: Section 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. Law and jurisprudence have laid down the instances when a warrantless search is valid. These are: 1. Warrantless search incidental to a lawful arrest recognized under Section 12 [now Section 13], Rule 126 of the Rules of Court and by prevailing jurisprudence; 2. Seizure of evidence in "plain view," the elements of which 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 had 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 vehicle's 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; and 7. Exigent and Emergency Circumstances.
14

Both the trial court and the CA anchored their respective decisions on the fact that the search was conducted on a moving vehicle to justify the validity of the search. Indeed, the search of a moving vehicle is one of the doctrinally accepted exceptions to the Constitutional mandate that no search or seizure shall be made except by virtue of a warrant issued by a judge after 15 personally determining the existence of probable cause. In People v. Bagista,
16

the Court said:

The constitutional proscription against warrantless searches and seizures admits of certain exceptions. Aside from a search incident to a lawful arrest, a warrantless search had been upheld in cases of a moving vehicle, and the seizure of evidence in plain view. With regard to the search of moving vehicles, this had been justified on the ground that the mobility of motor vehicles makes it possible for the vehicle to be searched to move out of the locality or jurisdiction in which the warrant must be sought. This in no way, however, gives the police officers unlimited discretion to conduct warrantless searches of automobiles in the absence of probable cause. When a vehicle is stopped and subjected to an extensive search, such a warrantless search has been held to be valid only as long as the officers conducting the search have reasonable or probable cause to believe before the search that they will find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched. It is well to remember that in the instances we have recognized as exceptions to the requirement of a judicial warrant, it is necessary that the officer effecting the arrest or seizure must have been impelled to do so because of probable cause. The essential requisite of probable cause must be satisfied before a 17 warrantless search and seizure can be lawfully conducted. Without probable cause, the articles seized 18 cannot be admitted in evidence against the person arrested. Probable cause is defined as a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to induce a cautious man to believe that the person accused is guilty of the offense charged. It refers to the existence of such facts and circumstances that can lead a reasonably discreet and prudent man to believe that an offense has been committed, and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law are in the place to be 19 searched. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, 20 coupled with good faith on the part of the peace officers making the arrest. Over the years, the rules governing search and seizure have been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of

the issuing judge a requirement which borders on the impossible in instances where moving vehicle is 21 used to transport contraband from one place to another with impunity. This exception is easy to understand. A search warrant may readily be obtained when the search is made in a store, dwelling house or other immobile structure. But it is impracticable to obtain a warrant when the search is conducted on a mobile ship, on an aircraft, or in other motor vehicles since they can quickly be 22 moved out of the locality or jurisdiction where the warrant must be sought. Given the discussion above, it is readily apparent that the search in this case is valid. The vehicle that carried the contraband or prohibited drugs was about to leave. PO2 Pallayoc had to make a quick decision and act fast. It would be unreasonable to require him to procure a warrant before conducting the search under the circumstances. Time was of the essence in this case. The searching officer had no time to obtain a warrant. Indeed, he only had enough time to board the vehicle before the same left for its destination. It is well to remember that on October 26, 2005, the night before appellants arrest, the police received information that marijuana was to be transported from Barangay Balbalayang, and had set up a checkpoint around the area to intercept the suspects. At dawn of October 27, 2005, PO2 Pallayoc met the secret agent from the Barangay Intelligence Network, who informed him that a baggage of marijuana was loaded on a passenger jeepney about to leave for the poblacion. Thus, PO2 Pallayoc had probable cause to search the packages allegedly containing illegal drugs. This Court has also, time and again, upheld as valid a warrantless search incident to a lawful arrest. Thus, Section 13, Rule 126 of the Rules of Court provides: 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 23 without a search warrant. For this rule to apply, it is imperative that there be a prior valid arrest. Although, generally, a warrant is necessary for a valid arrest, the Rules of Court provides the exceptions therefor, to wit: SEC. 5. Arrest without warrant; when lawful.A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with 24 section 7 of Rule 112. Be that as it may, we have held that a search substantially contemporaneous with an arrest can precede 25 the arrest if the police has probable cause to make the arrest at the outset of the search.

Given that the search was valid, appellants arrest based on that search is also valid. Article II, Section 5 of the Comprehensive Dangerous Drugs Act of 2002 states: SEC. 5 Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any controlled precursor and essential chemical, or shall act as a broker in such transactions. In her defense, appellant averred that the packages she was carrying did not belong to her but to a neighbor who had asked her to carry the same for him. This contention, however, is of no consequence. When an accused is charged with illegal possession or transportation of prohibited drugs, the ownership 26 thereof is immaterial. Consequently, proof of ownership of the confiscated marijuana is not necessary. Appellants alleged lack of knowledge does not constitute a valid defense. Lack of criminal intent and good faith are not exempting circumstances where the crime charged is malum prohibitum, as in this 27 case. Mere possession and/or delivery of a prohibited drug, without legal authority, is punishable under 28 the Dangerous Drugs Act. Anti-narcotics laws, like anti-gambling laws, are regulatory statutes. They are rules of convenience designed to secure a more orderly regulation of the affairs of society, and their violation gives rise to crimes mala prohibita. Laws defining crimes mala prohibita condemn behavior directed not against 29 particular individuals, but against public order. Jurisprudence defines "transport" as "to carry or convey from one place to another." There is no definitive moment when an accused "transports" a prohibited drug. When the circumstances establish the purpose of an accused to transport and the fact of transportation itself, there should be no question as to 31 the perpetration of the criminal act. The fact that there is actual conveyance suffices to support a finding that the act of transporting was committed and it is immaterial whether or not the place of destination is 32 reached. Moreover, appellants possession of the packages containing illegal drugs gave rise to the disputable 33 34 presumption that she is the owner of the packages and their contents. Appellant failed to rebut this presumption. Her uncorroborated claim of lack of knowledge that she had prohibited drug in her possession is insufficient. Appellants narration of facts deserves little credence. If it is true that Bennie Lao-ang merely asked her and her companion to carry some baggages, it is but logical to first ask what the packages contained and where these would be taken. Likewise, if, as appellant said, Lao-ang ran away after they disembarked from the jeepney, appellant and her companion should have ran after him to give him the bags he had left with them, and not to continue on their journey without knowing where they were taking the bags.
30

Next, appellant argues that the prosecution failed to prove the corpus delicti of the crime. In particular, she alleged that the apprehending police officers failed to follow the procedure in the custody of seized prohibited and regulated drugs, instruments, apparatuses, and articles. In all prosecutions for violation of the Dangerous Drugs Act, the existence of all dangerous drugs is a sine 35 qua non for conviction. The dangerous drug is the very corpus delicti of that crime. Thus, Section 21 of R.A. No. 9165 prescribes the procedure for custody and disposition of seized dangerous drugs, to wit: Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. The Implementing Rules and Regulations (IRR) of R.A. No. 9165 further provides: SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. PO2 Pallayoc testified that after apprehending appellant, he immediately brought her to the police station. At the station, the police requested the Mayor to witness the opening of the bags seized from appellant. When the Mayor arrived, he opened the bag in front of appellant and the other police officers. The black bag yielded three bricks of marijuana wrapped in newspaper, while the plastic bag yielded two bundles of 36 marijuana and two bricks of marijuana fruiting tops. PO2 Pallayoc identified the bricks. He and PO3 Stanley Campit then marked the same. Then the seized items were brought to the PNP Crime Laboratory for examination. It is admitted that there were no photographs taken of the drugs seized, that appellant was not accompanied by counsel, and that no representative from the media and the DOJ were present.

However, this Court has already previously held that non-compliance with Section 21 is not fatal and will not render an accuseds arrest illegal, or make the items seized inadmissible. What is of utmost 37 importance is the preservation of the integrity and evidentiary value of the seized items. Based on the testimony of PO2 Pallayoc, after appellants arrest, she was immediately brought to the police station where she stayed while waiting for the Mayor. It was the Mayor who opened the packages, revealing the illegal drugs, which were thereafter marked and sent to the police crime laboratory the following day. Contrary to appellants claim, the prosecutions evidence establishes the chain of custody from the time of appellants arrest until the prohibited drugs were tested at the police crime laboratory. While it is true that the arresting officer failed to state explicitly the justifiable ground for non-compliance with Section 21, this does not necessarily mean that appellants arrest was illegal or that the items seized are inadmissible. The justifiable ground will remain unknown because appellant did not question the 38 custody and disposition of the items taken from her during the trial. Even assuming that the police officers failed to abide by Section 21, appellant should have raised this issue before the trial court. She could have moved for the quashal of the information at the first instance. But she did not. Hence, she is deemed to have waived any objection on the matter. Further, the actions of the police officers, in relation to the procedural rules on the chain of custody, enjoyed the presumption of regularity in the performance of official functions. Courts accord credence and full faith to the testimonies of police authorities, as they are presumed to be performing their duties 39 regularly, absent any convincing proof to the contrary. In sum, the prosecution successfully established appellants guilt. Thus, her conviction must be affirmed. WHEREFORE, the foregoing premises considered, the appeal is DISMISSED. The Decision of the Court of Appeals in CA-G.R. CR-HC No. 02718 is AFFIRMED. SO ORDERED.

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 191064 Present: CARPIO, J., Chairperson, NACHURA, * LEONARDO-DE CASTRO, PERALTA, and MENDOZA, JJ.

- versus -

ROLANDO ARANETA y ABELLA @ BOTONG and MARILOUSANTOS y TANTAY @ MALOU, Accused-Appellants.

Promulgated:

October 20, 2010 x ----------------------------------------------------------------------------------------------------- x DECISION MENDOZA, J.:

This is an appeal from the August 29, 2008 Decision of the Court of Appeals (CA), in CA-G.R. [2] CR-H.C. No. 02308, which affirmed the March 12, 2004 Decision of the Regional Trial Court, Branch 151, Pasig City (RTC),finding the accused guilty beyond reasonable doubt for violating Section 5 and Section 11 of Article II of Republic Act No. 9165, otherwise known as the Comprehensive Drugs Act of 2002. Criminal informations were filed in the RTC against Rolando Araneta y Abella a.k.a. Botong for Violation of Section 8 and Section 16 of R.A. No. 6425 (Dangerous Drugs Act of 1972), as amended, in addition to the Information filed against him and co-accused Marilou Santos y Tantay a.k.a. Malou for Violation of Section 15, Article III in relation to Section 21, Article IV of R.A. 6425, as amended. In view of the enactment of R.A. No. 9165 (Comprehensive Drugs Act of 2002), the original informations were amended accordingly. The said Informations read: Criminal Case No. 11491-D People vs. Araneta & Santos (For Violation of Sec. 5 in relation to Sec. 26, Art. II, R.A. 9165) On or about July 5, 2002 in Pasig City, and within the jurisdiction of this Honorable Court, the above accused, conspiring and confederating together and both of them mutually helping and aiding one another, not being lawfully authorized to sell, dispense, transport or distribute any dangerous drug, did then and there willfully, unlawfully and feloniously sell, deliver and give away to PO2 Danilo S. Damasco, a police poseur buyer, one (1) heat-sealed transparent plastic sachet containing white crystalline substance weighing of (sic) eight (8) centigrams (0.08 gram), which was found positive to the test for metamphetamine hydrochloride, a dangerous drug, in violation of said law. Contrary to Law.

[1]

Criminal Case No. 11492-D People vs. Araneta (For Violation of Sec. 11, Art. II, R.A. 9165) On or about July 5, 2002, in Pasig City, and within the jurisdiction of this Honorable Court, the accused, not being lawfully authorized to use or possess any dangerous drug, did then and there willfully, unlawfully and feloniously have in his possession and under his custody and control one (1) heat-sealed transparent plastic sachet containing 1.22 grams of dried marijuana fruiting tops, which was found positive to the test for marijuana, a dangerous drug, and eight (8) heat-sealed transparent plastic sachets containing white crystalline substance with the following recorded net weight, to wit: 1) 2) 3) 4) 5) 6) 7) 8) Exh. B1 RAA/070502 0.07 gram; Exh. B2 RAA/070502 0.10 gram; Exh. B3 RAA/070502 0.08 gram; Exh. B4 RAA/070502 0.07 gram; Exh. B5 RAA/070502 0.08 gram; Exh. B6 RAA/070502 0.04 gram; Exh. B7 RAA/070502 0.06 gram; Exh. B8 RAA/070502 0.09 gram

or having a total weight of 0.59 gram, which were found positive to the test for methamphetamine hydrochloride, a dangerous drug, in violation of the said law. Contrary to Law.

The prosecutions evidence was summarized in the CA decision as follows: On July 5, 2002, between 3:00 and 3:30 oclock in the morning, a confidential informant arrived at the Station Drug Enforcement Unit (SDEU) of the Pasig City Police Station to report to Officer-In-Charge SP04 Numeriano de Lara the alleged peddling of illegal drugs of live-in couple Botong and Malou, later identified as appellants Rolando Araneta y Abella and Marilou Santos y Tantay, at Barangay Putol, Rosario, Pasig City. SPO4 de Lara immediately formed a team composed of SPO2 Dante Zigapan who acted as the team leader, PO2 Danilo Damasco, PO1 Orig, and PO1 Bede Montefalcon, to confirm the veracity of the informants report and conduct a buy-bust operation. Before dispatching the team, SPO4 de Lara briefed them as to the alleged illegal activities of the couple and gave their description. SPO2 Zigapan designated PO2 Damasco as the poseur-buyer giving him a marked P100 bill to be used in the entrapment. The team proceeded to the target area on board two vehicles. SPO2 Zigapan, Montefalcon and the informant were in one vehicle while PO2 Damasco and PO1 Orig were together in the other vehicle. The team arrived at the target place around 4:10 in the morning. They positioned themselves some 20-30 meters from the alley where appellants were allegedly staying. SPO2 Zigapan gave instructions to the informant to locate the appellants. After several minutes, the informant came back and confirmed the presence of appellants atROTC Street, Putol, Bgy. Rosario, Pasig City. Thereafter, the team proceeded to the said location.

PO2 Damasco and the informant went near the appellants who were standing just outside their house. The informant and appellants exchanged greetings. After a short conversation, Botong went inside their house. The informant introduced PO2 Damasco to Malou by saying, I-score itong kaibigan ko. Baka meron ka dyan. Malou then asked PO2 Damasco, I-score ka na ba. After Malou asked PO2 Damasco, Magkano, the latter immediately gave her the marked P100 bill. Malou called Botong and when the latter came out, Malou handed to him the marked money. Botong then gave Malou a plastic sachet which she handed to PO2 Damasco. After examining the plastic sachet, PO2 Damasco immediately gave the prearranged signal to the other members of the team who thereafter rushed to the scene. PO2 Damasco arrested Malou while SPO2 Zigapan arrested Botong. SPO2 Zigapan recovered from Botong the marked P100 bill and after frisking him, the police officer found in Botongs pocket one plastic sachet of what looked like marijuana and eight plastic sachets containing white crystalline substance. PO2 Damasco immediately placed RAA and the date July 5, 2002 on the plastic sachet he brought from Malou and the plastic sachets confiscated by SPO2 Zigapan from Botong. At the police station, PO2 Damasco prepared the written request for a laboratory examination of the confiscated plastic sachets. Together with the request, the plastic sachets were brought by PO1 Orig to the crime laboratory. The laboratory tests gave a positive result of the presence of methampethamine hydrochloride or what is locally known as shabu on the contents of nine (9) sachets and marijuana on one (1) sachet.

The evidence for the accused was summarized by the CA as follows: Between 3:30 to 4:30 oclock in the morning of July 5, 2006, accused Rolando Araneta together with his live-in partner and co-accused Marilou Santos were sleeping on the ground floor of their rented apartment, when they were suddenly awakened by a loud noise coming from the upstairs. Rolando immediately stood up and tried to go up the stairs. That was when he met a man who introduced himself as a policeman. The man likewise pointed a gun to him and told him not to move. He was then instructed to sit down, to which he acceded. Thereafter, the man went near the door of his house and opened the same. Suddenly, four (4) other policemen went inside. One of the policemen went inside the comfort room and looked for somebody. Later, he heard the said policeman utter, Nobody is here. One of the policemen then approached Rolando and asked him the whereabouts of a certain Teng. Rolando answered that he did not know Teng and that there was no other person inside the house except for him and his wife Marilou. The police operatives searched his house. They however found nothing illegal inside his house. After the search, the police operatives invited Rolando and Marilou to come with them to the precinct to answer some questions. Thereat, the police operatives informed them that they are being charged for their involvement in illegal drug activities, which they vehemently denied. PO2 Damasco, however, told them that if they wanted to be released, Rolando and Marilou must pay P20,000.00 each. When Rolando declined to give said amount, the police operatives filed the instant cases against them. (TSN, June 23, 2003, pp. 2-8)

In the early morning of July 5, 2003, accused-appellant Marilou Santos and her live-in partner Rolando were sleeping when they were awakened by a noise coming from the second floor of their house. Rolando tried to go upstairs to find out what happened, but he met a man who instantly poked a gun at him. Marilou tried to stand up but the policeman told her, Stay there, dont move. Thereafter the police shoved them near the chair. He also asked Rolando the whereabouts of Teng but the former answered that nobody by the name of Teng lived there. While still poking the gun on them, the policeman opened the door of their house. Five (5) policemen then entered and conducted a search. After the search, the policemen brought them to the police station. Thereat, PO2 Damasco asked them several questions. Moments later, the policeman got something from the drawer and told them that those articles belong to them. Marilou denied that the said articles belong to them since the policemen did not recover anything from them during the search. Despite her denial, they were still charged with Violations of Sections 15, 16 and 8 of Republic Act 9165. After a while, PO2 Damasco demanded P20,000.00 from them in exchange for their release. As they were innocent, Marilou refused to give said amount, prompting the police operatives to formally charge them. (TSN, July 23, 2003, p. 3) In the early morning of July 5, 2002, Marian Rodriguez was outside the alley in ROTC, Rosario, Pasig Citywhen she saw both accused going out of the alley accompanied by five (5) men. The accused and the five (5) men passed in front of Marian. She hesitated to follow the group. Since then Marian never saw the accused again. (TSN, September 10, 2003, pp. 3-4). In its March 12, 2004 Decision, the RTC found the accused guilty beyond reasonable doubt and sentenced them accordingly, as follows: WHEREFORE, the Court renders judgment, as follows: 1) In Criminal Case No. 11491-D, the Court finds accused Rolando Araneta y Abella @ Botong and accused Marilou Santos y Tantay A Malou GUILTY beyond reasonable doubt of violation of Sec. 5 in relation to Sec. 26, Art. II of R.A. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and imposes upon them the penalty of LIFE IMPRISONMENT and to pay a fine P500, 000.00 each; and 2) In Criminal Case No. 11492-D (which absorbed Criminal Case No. 11490D), the Court finds accused Rolando Araneta y Abella @Botong GUILTY beyond reasonable doubt of violation of Sec. 11, Art. II of R.A. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and imposes upon him the penalty of imprisonment of from Twelve (12) years and One (1) day to Twenty (20) years and to pay a fine of P300, 000.00. Considering that the accused is a detention prisoner, he shall be credited with the period of his detention during his preventive imprisonment. Xxx SO ORDERED. The RTC ruled that all the elements for the prosecution of the illegal sale of dangerous drugs were present during the buy-bust operation conducted by the police officers. These were: 1) the identity of the buyer and the seller; 2) the object of the sale and the consideration; and 3) the delivery of the thing sold and payment therefor. xxx xxx

Furthermore, the RTC held that the defense of denial, frame-up, forcible entry, and extortion could not prevail over the positive identification by the prosecution witnesses. It noted that accused Rolando Araneta was not candid enough to inform the court that no less than eight (8) criminal cases were previously filed against him in different courts for violation of the Dangerous Drugs Law. Nevertheless, out of eight (8) criminal cases filed against him, he admitted that one resulted in a conviction and two other cases were dismissed. The other cases were then still pending trial. Aggrieved, the accused appealed to the CA arguing that: 1) the RTC erred in not finding that they were illegally arrested and, as such, the sachets of shabu allegedly recovered from them were inadmissible in evidence; and 2) the RTC erred in finding them guilty beyond reasonable doubt of the crime charged because the testimonies of the prosecution witnesses were replete with inconsistencies and contradictions. On August 29, 2008, the CA rendered the subject decision affirming the decision of the RTC. In arriving at said determination, the CA applied the objective test in buy-bust operations laid down in the case of People v. Doria, 301 SCRA 668, 698-699. The CA ruled that the prosecution evidence met the standard for the objective test through the testimony of its witness, PO2 Danilo Damasco, who acted as poseur-buyer and who related how the informant introduced him to the accused; how the transaction was consummated through the exchange of marked money and the sachet of shabu; and how the accused was arrested by the entrapment team. The CA noted that the accused were arrested in flagrante delicto and that other contraband materials were recovered from them during the ensuing search. It concluded that the corpus delicti was duly established. Finally, the CA stated that the inconsistencies in the testimonies of the police officers were minor or inconsequential. The accused failed to adduce evidence to overthrow the presumption of regularity in the performance of duty in favor of the police officers. The accused likewise failed to show proof that the police officers did not properly perform their jobs or had ill motives against them. Moreover, their defense of denial and frame-up for extortion purposes was self-serving, negative evidence that was not entitled to be given greater weight than the declaration of credible witnesses who testified on affirmative matters. In due time, the accused filed a motion for reconsideration stressing the inadmissibility of evidence due to their illegal arrest, and the inconsistency in the testimonies of prosecution witnesses. They also pointed out that the apprehending officers failed to establish that the corpus delicti (sachets of shabu or marijuana) were the very same ones sold by and seized from them. Additionally, they claimed that the apprehending team, who had initial custody over the confiscated drug items, failed to make an inventory and to photograph the same in their presence. On August 24, 2009, the CA issued a resolution
[4] [3]

denying their motion for reconsideration. The

CA ruled, among others, that the issues on the corpus delicti and the alleged failure of the apprehending

team to make an inventory and to photograph the shabu and marijuana in the presence of the accused were new issues not raised in their appeal brief. In their recourse to this Court, the accused presented only one ISSUE WHETHER OR NOT THE ACCUSED-APPELLANTS ARE GUILTY BEYOND REASONABLE DOUBT FOR VIOLATING SECTIONS 5 AND 11 OF ARTICLE II OF R.A. No. 9165, OTHERWISE KNOWN AS THE COMPREHENSIVE DRUGS ACT OF 2002. The accused argue that the evidence adduced by the prosecution was not able to establish without a doubt, that the dangerous drugs presented in court were the very same ones allegedly sold by them. They insist that the police officers failed to strictly abide by the requirements of the law as regards the proper custody of dangerous drugs seized in the course of the alleged buy-bust operation. The prosecution stands firm by its position that the arrest of the accused and seizure of the shabu and marijuana were lawful and that the testimonies of the prosecution witnesses were truthful. In the absence of any credible evidence to the contrary, the police officers are presumed to have regularly performed their official duty. More importantly, all the elements necessary for the prosecution of the illegal sale of drugs are present, to wit: 1) the identity of the buyer and the seller, the object and consideration; and 2) the delivery of the thing sold and payment therefor. The prosecution asserts that the accused cannot raise for the first time on appeal the issue on the alleged failure of the law enforcers to comply strictly with Section 21 of Republic Act No. 9165. At any rate, the prosecution believes that it has shown that the chain of custody of the seized items was not broken. THE COURTS RULING: After due consideration, the Court finds the evidence on record sufficient enough to sustain the verdict of conviction. It is morally convinced that the accused are guilty beyond reasonable doubt of the offense charged against them. The rule is that factual findings of the trial court, its calibration of the testimonies of the witnesses and its assessment of their probative weight are given high respect if not conclusive effect, unless the trial court ignored, misconstrued, misunderstood or misinterpreted cogent [5] facts and circumstances of substance, which, if considered, will alter the outcome of the case. In this case, the CA found no such inculpatory facts and circumstances and this Court has not stumbled upon any either. Doubtless, the prosecution was able to establish all the necessary elements required in the prosecution for illegal sale of dangerous drugs, namely: 1) the identity of the buyer and seller; 2) the identity of the object of the sale and the consideration; and 3) the delivery of the thing sold upon payment. PO2 Danilo Damasco, (PO2 Damasco) the poseur-buyer, clearly and convincingly narrated in detail the entrapment operation they had conducted that led to the arrest of the accused and the seizure of the dangerous drugs. He related on the witness stand that upon receiving information from a confidential informant about the illegal sale of dangerous drugs by the accused, they immediately formed

an entrapment team to conduct a buy-bust operation. Upon reaching the area in the early morning of July 5, 2002, he and the confidential informant approached the accused. After a brief introduction and short conversation, accused Botong went inside their house while accused Malou received the marked money from the poseur-buyer. Malou then called Botong who thereafter came out of the house. Malou gave the marked money to Botong who, in turn, gave Malou a plastic sachet containing a white crystalline substance. The plastic sachet was then handed over to PO2 Damasco who examined it and immediately gave the pre-arranged signal to arrest the accused. During the arrest, the marked money was recovered from Rolando and so were several other plastic sachets containing white crystalline substances together with a plastic sachet containing marijuana. Subsequently, the accused were brought to the police station and the seized items were later brought to the Police Crime Laboratory Office for examination. The testimony of PO2 Damasco was corroborated by SPO2 Zipagan, the entrapment team leader, and SPO4 Numeriano De Lara, the entrapment team organizer. Contrary to the posture of the accused, the testimony of PO2 Damasco was clear, consistent and convincing. As correctly assessed by the CA, his testimony passed the objective test in buy-bust operations. We therefore stress that the objective test in buy-bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the buy-bust money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be caught but not at all cost. At the same time, however, examining the conduct of the police should not disable courts into ignoring the accuseds predisposition to commit the crime. If there is overwhelming evidence of habitual delinquency, recidivism or plain criminal proclivity, then this must also be considered. Courts should look at all factors to determine the predisposition of an accused to commit an offense in so far as they are relevant to determine the validity of the defense of [6] inducement. [Emphasis supplied] The Court looked into the accuseds defense of denial and accusations of frame-up, planting of evidence, forcible entry and extortion by the police officers but found them inherently weak. Aside from their bare allegations, the accused had nothing more to show that the apprehending police officers did not properly perform their duties or that they had ill motives against them. They failed to substantiate their argument that they were framed-up for extortion purposes. Absent any convincing countervailing evidence, the presumption is that the members of the buybust team performed their duties in a regular manner. It was certainly a job well done. Hence, the Court gives full faith and credit to the testimonies of the prosecution witnesses. The Court also holds that the seized items were admissible. A search warrant or warrant of arrest was not needed because it was a buy-bust operation and the accused were caught in flagrante delicto in possession of, and selling, dangerous drugs to the poseur-buyer. It was definitely legal for the buy-bust team to arrest, and search, them on the spot because a buy-bust operation is a justifiable mode of apprehending drug pushers. A buy-bust operation is a form of entrapment whereby ways and means are resorted to for the purpose of trapping and capturing the lawbreakers in the execution of their criminal

plan. In this jurisdiction, the operation is legal and has been proven to be an effective method of [7] apprehending drug peddlers, provided due regard to constitutional and legal safeguards is undertaken. In People v. Villamin, involving an accused arrested after he sold drugs during a buy-bust operation, the Court ruled that it was a circumstance where a warrantless arrest is justified under Rule 113, Sec. 5(a) of the Rules of Court. The same ruling applies to the instant case. When carried out with due regard for constitutional and legal safeguards, it is a judicially sanctioned method of apprehending those involved in illegal drug activities. It is a valid form of entrapment, as the idea to commit a crime comes not from the police officers but from the accused himself. The accused is caught in the act and must be apprehended on the spot. From the very nature of a buy-bust operation, the absence of a warrant does not make the arrest illegal. The illegal drugs seized were not the fruit of the poisonous tree as the defense would like this Court to believe. The seizure made by the buy-bust team falls under a search incidental to a lawful arrest under Rule 126, Sec. 13 of the Rules of Court, which pertinently provides: 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. Since the buy-bust operation was established as legitimate, it follows that the [8] search was also valid, and a warrant was likewise not needed to conduct it. It should also be noted that after the RTC rendered a guilty verdict, the accused filed a motion for reconsideration based on two (2) grounds, to wit: 1) inadmissibility of the seized items; and 2) credibility of the prosecution witnesses. In the CA, they reiterated said grounds. After an unfavorable decision and ruling, the accused added two (2) new arguments in their motion for reconsideration, to wit: 1) the apprehending officers failed to establish that the corpus delicti (sachets of shabu or marijuana) were the very same ones sold by and seized from them; and 2) the apprehending team who had initial custody over the confiscated drug items failed to make an inventory and to photograph the same in their presence. The Court totally agrees with the ruling of the CA that the issues on the corpus delicti and the compliance withSection 21 of RA No. 9165 were issues that were not raised by the accused in their appellants brief, and were only presented in their motion for reconsideration from the decision of the CA. Hence, the Court cannot act, much less, rule on said new points. To do so would violate basic rules on fair play and due process. Thus: We point out the defenses failure to contest the admissibility of the seized items as evidence during trial as this was the initial point in objecting to illegally seized evidence. At the trial, the seized shabu was duly marked, made the subject of examination and cross-examination, and eventually offered as evidence, yet at no instance did the appellant manifest or even hint that there were lapses in the safekeeping of seized items that affected their admissibility, integrity and evidentiary value. In People v. Hernandez, we held that objection to the admissibility of evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection, he cannot raise the [9] question for the first time on appeal.

WHEREFORE, the August 29, 2008 Decision of the Court of Appeals, in CA-G.R. CR-H.C. No. 02308, isAFFIRMED. SO ORDERED.

G.R. No. 170233

February 22, 2007

THE PEOPLE OF THE PHILIPPINES, Appellee, vs. JESUS NUEVAS y GARCIA, REYNALDO DIN y GONZAGA, and FERNANDO INOCENCIO y ABADEOS,Appellants.

DECISION TINGA, J.: Jesus Nuevas y Garcia (Nuevas) was charged before the Regional Trial Court (RTC) of Olongapo City, Branch 75, with illegal possession of marijuana in violation of Section 8, Article II of Republic Act No. 2 6425 as amended. Reynaldo Din y Gonzaga (Din) and Fernando Inocencio y Abadeos (Inocencio) were likewise 3 charged with the same crime, before the same court. Upon arraignment, Nuevas, Din and Inocencio pleaded not guilty to the charges. As the evidence in the cases was common and the prosecution would utilize the same witnesses, the cases were consolidated. 5 After a joint trial on the merits, the RTC rendered a Decision dated 4 April 2002, disposing as follows: WHEREFORE, finding all accused in the above-entitled cases guilty beyond reasonable doubt, this Court hereby sentences them to suffer the penalty of Reclusion Perpetua and each to pay [a] fine of P500,000.00 without subsidiary imprisonment in case of insolvency and to pay the costs. The bricks of marijuana are hereby confiscated and disposed in accordance with existing regulations. SO ORDERED.
6 4 1

To put in appropriate context the operative facts on which adjudication of this case hinges, there is need to recall the factual assertions of the witnesses for both the prosecution and the defense. PO3 Teofilo B. Fami (Fami) testified that in the morning of 27 September 1997, he and SPO3 Cesar B. Cabling (Cabling) conducted a stationary surveillance and monitoring of illegal drug trafficking along Perimeter Street, Barangay Pag-asa, Olongapo City. They had received information that a certain male person, more or less 54" in height, 25 to 30 years old, with a tattoo mark on the upper right hand, and usually wearing a sando and maong pants, would make a delivery of marijuana dried leaves. While stationed thereat, they saw a male person who fit the description, carrying a plastic bag, later identified as Jesus Nuevas (Nuevas), alight from a motor vehicle. They accosted Nuevas and informed him that they are police officers. Fami asked Nuevas where he was going. Nuevas answered arrogantly but afterwards, calmed down. Nuevas and Fami conversed in the Waray dialect. Nuevas informed him that there were other stuff in the possession of a certain Vangie, an associate, and two other male persons. Later on, Nuevas voluntarily pointed to the police officers a plastic bag which, when opened, contained marijuana dried leaves and bricks wrapped in a blue cloth. Shortly, in his bid to escape charges, Nuevas disclosed where the two (2) other male persons would make the delivery of marijuana weighing more or less five (5) 7 kilos. Fami and Cabling, together with Nuevas, then proceeded to Purok 12, Old Cabalan, Olongapo City, which according to Nuevas was where his two (2) companions, Din and Inocencio, could be located. From there, they saw and approached two (2) persons along the National Highway, introducing

themselves as police officers. Din was carrying a light blue plastic bag. When asked, Din disclosed that the bag belonged to Nuevas. Fami then took the bag and upon inspection found inside it "marijuana 8 packed in newspaper and wrapped therein." After confiscating the items, Fami and Cabling brought 9 Nuevas, Din and Inocencio to the police office at Purok III for proper documentation. Fami further testified that a receipt for the property seized was issued by Cabling and that a field test was duly conducted on the confiscated items. All three accused were likewise physically examined on the basis of which corresponding medical certificates were issued. The corresponding booking sheets and arrest report were also accomplished. Fami stated that he and Cabling executed a joint affidavit in connection 10 with the arrest of all the accused and the confiscation of the items. On cross-examination, Fami revealed that when the receipt of evidence seized was prepared, all three (3) accused were not represented by counsel. He likewise disclosed that he was the one who escorted all the accused during their physical examination. He also escorted all three to the Fiscals office where the latter 11 were informed of the charges against them. Cabling corroborated Famis testimony. He, however, testified that after he and Fami had introduced 12 themselves as police officers, Din and Inocencio voluntarily handed to Fami the marijuana dried leaves. On cross-examination, Cabling testified that the arrest of Nuevas was the result of a tip from Famis informant, conceding though that the name of Nuevas was not included in the list of persons under 13 surveillance. Fami then relayed the tip to Cabling. Cabling restated that Nuevas had voluntarily submitted the plastic bag he was holding and that after Nuevas had been informed of the violation of law 14 attributed to him, he admitted his willingness to cooperate and point to his other cohorts. When Fami and Cabling proceeded to the identified location of Nuevass cohorts, they chanced upon Din and 15 Inocencio along the road. Din was holding a bag while Inocencio was looking into its contents. Cabling 16 averred that Din voluntarily handed the plastic bag he was holding to the police officers. For his defense, Nuevas testified that in the morning of 27 September 1997, he was walking along Perimeter Street, on his way home from the Barangay Hall, when Fami called him. Nuevas approached Fami, who was then in front of his house, and asked why Fami had called him. Fami poked his gun at Nuevas and asked him to go inside the room where Fami handcuffed Nuevass hands, got Nuevass wallet, took out P1,500.00 and put it in his (Famis) wallet. Fami then confronted Nuevas with shabu use but the latter denied the charge. Before leaving the house with Nuevas, Fami brought out a plastic bag and told Nuevas to carry it. Subsequently, they boarded a red ownertype jeep and proceeded to Station 17 B where Nuevas was put in jail. Nuevas further stated that he did not know Din or Inocencio. Din, on the other hand, stated that at about 10 oclock in the morning of 27 September 1997, while his compare Inocencio was visiting, two (2) men entered his house looking for a woman. The two (2) introduced themselves as police officers. Then, Din and Inocencio were immediately handcuffed. They were not informed of the reason for their arrest and were told that the reason will be explained to them in court. Next, they were brought to the Cabalan precinct where the investigator asked for their names, and subsequently to Station B where they were ordered to stand up and be photographed with Nuevas, who Din first met in jail. Inside the room where they had their fingerprints taken, he saw marijuana placed on 18 top of the table. Inocencio testified that he went to his compadre Dins house in the morning of 27 September 1997 to sell his fighting cocks as he needed money to redeem his drivers license. While there, he and Din were arrested by two persons, one of whom pointed a gun at them while the other searched the house for a lady named Vangie. Afterwards, he and Din were brought to the Cabalan Police Precinct and then to Station B where he first came to know Nuevas. He denied that a plastic bag containing marijuana was recovered from them and claimed that he only saw such evidence on the day he gave his testimony. He also stated that when a photograph was taken of the three of them, he and Din were ordered to point to a "wrapped thing." When the photograph was taken, they were not assisted by counsel. He also does not recall having signed a receipt of property seized. Afterwards, they were brought to a detention cell. And 19 when they asked the police what they did wrong, the police replied that they will just explain it in court.

All three were found guilty as charged and the judgment of conviction was elevated to the Court for automatic review. However, on 14 July 2003, Nuevas filed a manifestation and motion to withdraw 20 appeal. The Court granted Nuevass withdrawal of appeal and considered the case closed and 21 terminated as to him, in a Resolution dated 25 August 2003. In a Resolution dated 22 September 2004 of the Court in G.R. Nos. 153641-42, the cases were 24 transferred to the Court of Appeals pursuant to the Courts ruling in People v. Efren Mateo. Before the Court of Appeals, Din and Inocencio (appellants) argued that the trial court erred: (1) in finding them guilty of the crime charged on the basis of the testimonies of the arresting officers; and (2) n not 25 finding that their constitutional rights have been violated. The Court of Appeals in a Decision dated 27 May 2005, in CA-G.R. CR No. 00341, affirmed the decision of the trial court. The dispositive portion of the decision reads: WHEREFORE, all the foregoing considered, the instant appeal is DENIED. The Decision of the Regional Trial Court of Olongapo City, Branch 75, in Criminal Case No. 459-97, is AFFIRMED. SO ORDERED.
27 26 22 23

The Court of Appeals restated the rule that when the issue involves the credibility of a witness, the trial courts assessment is entitled to great weight, even finality, unless it is shown that it was tainted with arbitrariness or there was an oversight of some fact or circumstance of weight or influence. The appellate court found Fami and Cablings version of how appellants were apprehended to be categorical and clear. Din, at the time of his apprehension, was seen holding a plastic bag containing marijuana leaves. On the other hand, Inocencios possession of the marijuana leaves was established by the fact that he was seen 28 in the act of looking into the plastic bag carried by Din. With respect to appellants claim that their constitutional rights have been violated, the appellate court stated that the search in the instant case is exempted from the requirement of a judicial warrant as appellants themselves waived their right against unreasonable searches and seizures. According to the appellate court, both Cabling and Fami testified that Din voluntarily surrendered the bag. Appellants never 29 presented evidence to rebut the same. Thus, in the instant case, the exclusionary rule does not apply. Din and Inocencio are now before the Court submitting for resolution the same matters argued before the 30 Court of Appeals. Through their Manifestation (In Lieu of Supplementary Brief) dated 22 March 2006, appellants stated that all the arguments necessary to support their acquittal have already been discussed in the brief they had submitted before the appellate court; thus, the filing of a supplemental brief would be 31 a mere reiteration of the arguments discussed in said brief. The Office of the Solicitor General 32 manifested that it is no longer filing a supplemental brief. The conviction or acquittal of appellants rests on the validity of the warrantless searches and seizure made by the police officers and the admissibility of the evidence obtained by virture thereof. In holding that the warrantless searches and seizure are valid, the trial court ruled as follows: While the confiscation of the bricks of marijuana from the accused Jesus Nuevas was without a search warrant, it was not bereft of a probable cause. The police team received informations [sic] from an asset that on that day, a male person whom he sufficiently described will deliver marijuana at the vicinity of Perimeter and Bonifacio S[t]., Pag-asa, Olongapo City, a known drop point of illegal drugs. They went to the said area upon that information. Their waiting was fruitful because not long afterwards they saw the accused Jesus Nuevas alighting from a tricycle carrying a bag and after confronting him, he voluntarily gave the bag containing bricks of dried marijuana leaves. With respect to the confiscation of 2 kilos of

marijuana and the apprehension of accused Reynaldo Din and Fernando Inocencio, it was a result of a continued operation by the team which this time was led by accused Nuevas to get some concession from the team for his own earlier apprehension. As the apprehension of Nuevas was upon a probable cause, in the same vein was the apprehension of Reynaldo Din and Fernando Inocencio and the recovery from them [of] 2 kilos of dried marijuana leaves. The propriety of this conclusion is necessity [sic] because of the impossibility of getting first a warrant in so short a time with such cumbersome requirements before one can be issued. Before getting a warrant, the culprits shall have already gone into hiding. These situations are not distant to the case of People v[.] Jean Balingan (G.R. No. 105834, 13 Feb. 1995) where we learned that expediency and practicality are some of the justification[s] in the 33 warrantless arrest. [Emphasis supplied] Appellants maintain that there was no basis for their questioning and the subsequent inspection of the 34 plastic bags of Nuevas and Din, as they were not doing anything illegal at the time. Our Constitution states that a search and seizure must be carried through or with a judicial warrant; otherwise, such search and seizure becomes "unreasonable" and any evidence obtained therefrom is 35 inadmissible for any purpose in any proceeding. The constitutional proscription, however, is not absolute but admits of exceptions, namely: 1. Warrantless search incidental to a lawful arrest. (Sec. 12, Rule 126 of the Rules of Court and prevailing jurisprudence); 2. Search 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; (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; and 7. Exigent and emergency circumstances.
36

In the instances where a warrant is not necessary to effect a valid search or seizure, or when the latter cannot be performed except without a warrant, 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 37 procured. The courts below anchor appellants conviction on the ground that the searches and seizure conducted in the instant case based on a tip from an informant fall under one of the exceptions as Nuevas, Din and Inocencio all allegedly voluntarily surrendered the plastic bags containing marijuana to the police 38 officers.

We differ. First, the Court holds that the searches and seizures conducted do not fall under the first exception, warrantless searches incidental to lawful arrests. A search incidental to a lawful arrest is sanctioned by the Rules of Court. Recent jurisprudence holds that the arrest must precede the search; the process cannot be reversed as in this case where the search preceded the arrest. Nevertheless, a search substantially contemporaneous with an arrest can precede 40 the arrest if the police have probable cause to make the arrest at the outset of the search. In this case, Nuevas, Din and Inocencio were not committing a crime in the presence of the police officers. Moreover, police officers Fami and Cabling did not have personal knowledge of the facts indicating that the persons to be arrested had committed an offense. The searches conducted on the plastic bag then cannot be said to be merely incidental to a lawful arrest. Reliable information alone is not sufficient to justify a warrantless arrest under Section 5(a), Rule 113. The rule requires, in addition, that the accused perform some overt act that would indicate that he "has committed, is actually committing, or 41 is attempting to commit an offense." Secondly, neither could the searches be justified under the plain view doctrine. An object is in plain view if it is plainly exposed to sight. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized. In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view. It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject 42 to seizure. Records show that the dried marijuana leaves were inside the plastic bags that Nuevas and Din were carrying and were not readily apparent or transparent to the police officers. In Nuevass case, the dried 43 marijuana leaves found inside the plastic bag were wrapped inside a blue cloth. In Dins case, the 44 marijuana found upon inspection of the plastic bag was "packed in newspaper and wrapped therein." It cannot be therefore said the items were in plain view which could have justified mere seizure of the 45 articles without further search. On the other hand, the Court finds that the search conducted in Nuevass case was made with his consent. In Dins case, there was none. Indeed, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. However, it must be seen that the consent to the search was voluntary in order to validate an otherwise illegal detention and search, i.e., the consent was unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion. The consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the defendant; (2) whether he was in a public or secluded location; (3) whether he objected to the search or passively looked on; (4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendant's belief that no incriminating evidence will be found; (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of the person consenting. It is the State which has the burden of proving, by clear and positive testimony, 46 that the necessary consent was obtained and that it was freely and voluntarily given.
39

In Nuevass case, the Court is convinced that he indeed voluntarily surrendered the incriminating bag to the police officers. Fami testified in this wise: FISCAL BELTRAN: Q Now, when you saw this accused carrying this Exhibit "D,"
47

for your part, what did you do?

A I just talked to him and asked him where he was going and according to him, he acted arrogantly, sir. Q This arrogant action of the accused Jesus Nuevas, when you confronted him did he resist? A How did he show his elements, [sic] he said, "So what if you are policeman[?]" Q And being confronted with that arrogance, what did you do next? A Later on he kept calm by saying [sic] in Waray dialect, sir. xxxx Q What, exactly, did he tell you in Waray dialect? A "Sir Famir[sic], dont charge me, sir[.] I am planning to go home to Leyte. I was just earning enough money for my fare, sir." xxxx Q So when the accused speak [sic] to you in Waray, what else did you do if you did anything? A I pretended that I agree in his [sic] offer but I also asked him where are the other staffs[sic] sir. xxxx Q With respect to the bag that you confiscated from him, what did you do? A He voluntarily pointed it to me and I checked it, the bag, for verification, sir. Cabling likewise testified as follows: Q When Fami got this from the accused, he opened this thing that he got? A The subject voluntarily submitted the same, sir. Q Upon the order of Fami to open it? A Nobody ordered it, sir.
50 49 48

There is reason to believe that Nuevas indeed willingly submitted the plastic bag with the incriminating contents to the police officers. It can be seen that in his desperate attempt to exculpate himself from any criminal liability, Nuevas cooperated with the police, gave them the plastic bag and even revealed his associates, offering himself as an informant. His actuations were consistent with the lamentable human

inclination to find excuses, blame others and save oneself even at the cost of others lives. Thus, the Court would have affirmed Nuevass conviction had he not withdrawn his appeal. However, with respect to the search conducted in the case of Din, the Court finds that no such consent had actually been given. Fami testified as follows: FISCAL BELTRAN Q Now, what did you do when you saw Din with that Exhibit "C," the plastic bag? A Din said that "Oo, Sir, that is owned by Nuevas" [sic] and I took the said plastic bag. Q When you took this plastic bag from Din. Was the accused Jesus Nueva [sic] present when Din told you that? A Yes, sir. Nuevas alighted also [from] the vehicle with Cabling. Q And what was the reaction of Nuevas when Din told you that the bag belongs to him? A I did not react, sir. Q After getting that plastic bag from Reynaldo Din, what did you do with it? A I inspected the bag and I found out that there is still marijuana packed in newspaper and wrapped 51 therein, sir. [Emphasis supplied.] Cabling, however, gave a different testimony, viz.: FISCAL BELTRAN Q And upon siting [sic] the two subject persons you have just indicated in your earlier testimony, what did you do? A We approached them and introduced ourselves as police officers, and pinpointed by Nuevas as the ones who kept suspected prohibited drugs, sir. Q After you approached these two people, what happened? A These two people, upon introducing ourselves, [sic] voluntarily surrendered to Fami those marijuana 52 dry leaves, sir. The police officers gave inconsistent, dissimilar testimonies regarding the manner by which they got hold of the bag. This already raises serious doubts on the voluntariness of Dins submission of the plastic bag. Jurisprudence requires that in case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is fundamental that to constitute a waiver, it must first appear that (1) the right exists; (2) the person involved had knowledge, either actual or constructive, of the existence of such 53 right; and (3) the said person had an actual intention to relinquish the right. The prosecution failed to clearly show that Din intentionally surrendered his right against unreasonable searches. While it may not be contrary to human nature for one to be jolted into surrendering something incriminating to authorities, Famis and Cablings testimonies do not show that Din was in such a state of

mind or condition. Fami and Cabling did not testify on Dins composurewhether he felt surprised or frightened at the timewhich fact we find necessary to provide basis for the surrender of the bag. There was no mention of any permission made by the police officers to get or search the bag or of any consent given by Din for the officers to search it. It is worthy to note that in cases where the Court upheld the validity of consented search, the police authorities expressly asked, in no uncertain terms, for the consent of the accused to be searched. And the consent of the accused was established by clear and positive proof. Neither can Dins silence at the time be construed as an implied acquiescence to the warrantless search. 54 In People v. Burgos, the Court aptly ruled: x x x As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officers authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a 55 consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. Without the dried marijuana leaves as evidence, Dins conviction cannot be sustained based on the remaining evidence. The Court has repeatedly declared that the conviction of the accused must rest not 56 on the weakness of the defense but on the strength of the prosecution.1awphi1.net As such, Din deserves an acquittal. In this case, an acquittal is warranted despite the prosecutions insistence that the appellants have effectively waived any defect in their arrest by entering their plea and by their active participation in the trial of the case. Be it stressed that the legality of an arrest affects only the jurisdiction of the court over the person of the accused. Inspite of any alleged waiver, the dried marijuana leaves cannot be admitted in evidence against the appellants, Din more specifically, as they were seized during a warrantless search which was not lawful. A waiver of an illegal warrantless arrest does not also mean a waiver of the 57 inadmissibility of evidence seized during an illegal warrantless arrest. Turning to Inocencios case, the Court likewise finds that he was wrongly convicted of the crime charged. Inocencios supposed possession of the dried marijuana leaves was sought to be shown through his act 58 of looking into the plastic bag that Din was carrying. Taking a look at an object, more so in this case peeping into a bag while held by another, is not the same as taking possession thereof. To behold is not to hold. Indeed, the act attributed to Inocencio is insufficient to establish illegal possession of the drugs or even conspiracy to illegally possess the same. The prosecution failed to show by convincing proof that Inocencio knew of the contents of the bag and that he conspired with Din to possess the illegal items. Inocencio was firm and unshakeable in his testimony that he had no part in any delivery of marijuana dried leaves. Finally, the law enforcers should be reminded of the Courts dated but nevertheless current exhortation: x x x In the final analysis, we in the administration of justice would have no right to expect ordinary people to be law-abiding if we do not insist on the full protection of their rights. Some lawmen, prosecutors and judges may still tend to gloss over an illegal search and seizure as long as the law enforcers show the alleged evidence of the crime regardless of the methods by which they were obtained. This kind of attitude condones law-breaking in the name of law enforcement. Ironically, it only fosters the more rapid breakdown of our system of justice, and the eventual denigration of society. While this Court appreciates and encourages the efforts of law enforcers to uphold the law and to preserve the peace and security of society, we nevertheless admonish them to act with deliberate care and within the parameters set by the 59 Constitution and the law. Truly, the end never justifies the means. WHEREFORE, the Decision dated 4 April 2002 of the Regional Trial Court of Olongapo City, Branch 75, in Criminal Case No. 458-97 and No. 459-97 is reversed and modified. Appellants Reynaldo Din y Gonzaga and Fernando Inocencio y Abadeos are hereby ACQUITTED. The Director of the Bureau of

Prisons is ordered to cause the immediate release of appellants from confinement, unless they are being held for some other lawful cause, and to report to this Court compliance herewith within five (5) days from receipt hereof. SO ORDERED.

G.R. No. 180595

March 5, 2010

ARTHUR DEL ROSARIO and ALEXANDER DEL ROSARIO, Petitioners, vs. HELLENOR D. DONATO, JR. and RAFAEL V. GONZAGA, Respondents. DECISION ABAD, J.: This case is about the need for plaintiff to state the facts constituting his cause of action and the correct forum for actions for damages arising from alleged wrongful procurement and enforcement of a search warrant issued in connection with an alleged criminal violation of the intellectual property law. The Facts and the Case On January 23, 2002 Philip Morris Products, Inc. (Philip Morris) wrote the National Bureau of Investigation (NBI), requesting assistance in curtailing the proliferation of fake Marlboro cigarettes in Angeles City, Pampanga. After doing surveillance work in that city, respondent Hellenor Donato, Jr., the NBI agent assigned to the case, succeeded in confirming the storage and sale of such fake cigarettes at the house at 51 New York Street, Villasol Subdivision, Angeles City, that belonged to petitioner Alexander del Rosario. On March 5, 2002 respondent Donato applied for a search warrant with Branch 57 of the Regional Trial Court (RTC) of Angeles City to search the subject premises. But it took a week later or on March 12, 2002 for the RTC to hear the application and issue the search warrant. Although Donato felt that the delayed hearing compromised the operation, the NBI agents led by respondent Rafael V. Gonzaga proceeded to implement the warrant. Their search yielded no fake Marlboro cigarettes. Subsequently, petitioners Alexander and Arthur del Rosario (the Del Rosarios) filed a complaint for P50 million in damages against respondents NBI agents Donato and Gonzaga and two others before the RTC of Angeles City, Branch 62, in Civil Case 10584. On August 6, 2003 respondents NBI agents answered the complaint with a motion to dismiss on the grounds of: a) the failure of the complaint to state a cause of action; b) forum shopping; and c) the NBI agents immunity from suit, they being sued as such agents. The RTC denied the motion on March 25, 2003. The NBI agents filed a motion for reconsideration but the RTC denied the same on June 27, 2003. Dissatisfied, respondents NBI agents filed a special civil action of certiorari before the Court of Appeals (CA) in CA-G.R. SP 79496. On June 29, 2007 the latter court granted the petition and annulled the RTCs orders, first, in alleging merely that the NBI agents unlawfully procured the search warrant without stating the facts that made the procurement unlawful, the complaint failed to state a cause of action; and second, the Del Rosarios were guilty of forum shopping in that they should have filed their claim for damages against the NBI agents through a motion for compensation with the court that issued the search warrant. The Del Rosarios sought reconsideration of the decision but the CA denied it on November 19, 2007, prompting them to file this petition for review. The Issues Presented The petition presents two issues: 1. Whether or not the CA correctly ruled that the complaint of the Del Rosarios did not state a cause of action; and

2. Whether or not the CA correctly ruled that the Del Rosarios were guilty of forum shopping. The Courts Rulings One. The CA held that the Del Rosarios complaint before the RTC failed to state a cause of action against respondents NBI agents. Such complaint said that the NBI agents unlawfully procured and enforced the search warrant issued against the Del Rosarios but it failed to state the ultimate facts from which they drew such conclusion. The test of sufficiency of a complaint is whether or not, assuming the truth of the facts that plaintiff alleges 1 in it, the court can render judgment granting him the judicial assistance he seeks. And judgment would be right only if the facts he alleges constitute a cause of action that consists of three elements: (1) the plaintiffs legal right in the matter; (2) the defendants corresponding obligation to honor or respect such right; and (3) the defendants subsequent violation of the right. Absent any of these, the complaint would 2 have failed to state a cause of action. According to the Del Rosarios, the following allegations in their complaint state a cause or causes of action against respondents NBI agents: 2.4 On 12 March 2002, elements of the [NBI] x x x led by Defendant Rafael I. Gonzaga x x x entered by force the premises belonging to Plaintiff Alexander del Rosario situated at No. 51 New York Street, Villasol Subdivision, Angeles City, pursuant to a Search Warrant unlawfully obtained from the [RTC] of Angeles City, Branch 57 x x x. xxxx 2.6 Contrary to the sworn statements given before the court by defendants Hellenor D. Donato Jr. x x x and contrary to the allegation in Search Warrant No. 02-09A, no fake Marlboro cigarettes and their packaging were found at No. 51 New York Street, Villasol Subdivision, Angeles City x x x. 2.7 The inclusion of Plaintiff Arthur del Rosario in Search Warrant No. 02-09 had no factual basis considering that the premises searched is the property solely of Plaintiff Alexander del Rosario. 2.8 Worse the enforcement of Searched [sic] Warrant No. 02-09 was just part of the series of raids and searches that was conducted in Angeles City and Pampanga, which was done with much publicity in the community and had tended to include the Plaintiffs in the same category as other persons and entities who were in fact found to be dealing with fake Marlboro cigarettes. xxxx 3.2 The baseless sworn allegations that Plaintiffs had under their control and possession counterfeit Marlboro cigarettes and packaging to obtain a search warrant, and the malicious service of the such warrant at the residential premises of Plaintiff Alexander del Rosario in full and plain view of members of the community, as part of the series of raids and operations conducted within Angeles City and Pampanga during that period, has tainted irreversibly the good names which Plaintiffs have painstakingly built and maintained over the years. xxxx 3.4 Plaintiffs were subjected to so much humiliation and embarrassment by the raid conducted on the subject residential premises, and subjected them to much unwarranted speculation of engaging in the sale of fake merchandise.

Essentially, however, all that the Del Rosarios allege is that respondents NBI agents used an unlawfully obtained search warrant against them, evidenced by the fact that, contrary to the sworn statements used to get such warrant, the NBI agents found no fake Marlboro cigarettes in petitioner Alexander del Rosarios premises. But a judicially ordered search that fails to yield the described illicit article does not of itself render the courts order "unlawful." The Del Rosarios did not allege that respondents NBI agents violated their right by fabricating testimonies to convince the RTC of Angeles City to issue the search warrant. Their allegation that the NBI agents used an unlawfully obtained search warrant is a mere conclusion of law. While a motion to dismiss assumes as true the facts alleged in the complaint, such admission does not 3 extend to conclusions of law. Statements of mere conclusions of law expose the complaint to a motion to 4 dismiss on ground of failure to state a cause of action. Further, the allegation that the search warrant in this case was served in a malicious manner is also not sufficient. Allegations of bad faith, malice, and other related words without ultimate facts to support the 5 same are mere conclusions of law. The Del Rosarios broad assertion in their complaint that the search was conducted "in full and plain view of members of the community" does not likewise support their claim that such search was maliciously enforced. There is nothing inherently wrong with search warrants being enforced in full view of neighbors. In fact, when the respondent or his representative is not present during the search, the rules require that it be done in the presence of two residents of the same locality. These safeguards exist to protect persons from possible abuses that may occur if searches were done surreptitiously or clandestinely. Two. Invoking Section 21 of this Courts Administrative Matter (A.M.) 02-1-06-SC (not A.O. 01-1-06-SC as cited), the CA held that, rather than file a separate action for damages, the Del Rosarios should have filed their claim for compensation in the same proceeding and with the same court that issued the writ of search and seizure. The Del Rosarios were thus guilty of forum shopping. A.M. 02-1-06-SC, the Rule on Search and Seizure in Civil Actions for Infringement of Intellectual Property Rights, provides: SEC. 21. Claim for damages. Where the writ [of search and seizure] is discharged on any of the grounds provided in this Rule, or where it is found after trial that there has been no infringement or threat of infringement of an intellectual property right, the court, upon motion of the alleged infringing defendant or expected adverse party and after due hearing, shall order the applicant to compensate the defendant or expected adverse party upon the cash bond, surety bond or other equivalent security for any injury or damage the latter suffered by the issuance and enforcement of the writ. Should the damages exceed the amount of the bond, the applicant shall be liable for the payment of the excess. When a complaint is already filed in court, the motion shall be filed with the same court during the trial or before appeal is perfected or before judgment becomes executory, with due notice to the applicant, setting forth the facts showing the defendants right to damages and the amount thereof. The award of damages shall be included in the judgment in the main case. Where no complaint is filed against the expected adverse party, the motion shall be filed with the court which issued the writ. In such a case, the court shall set the motion for summary hearing and immediately determine the expected adverse partys right to damages. A judgment in favor of the applicant in its principal claim should not necessarily bar the alleged infringing defendant from recovering damages where he suffered losses by reason of the wrongful issuance or enforcement of the writ.

The damages provided for in this section shall be independent from the damages claimed by the defendant in his counterclaim. But the subject search warrant was not issued under A.M. 02-1-06-SC, which governed the issuance of a writ of search and seizure in a civil action for infringement filed by an intellectual property right owner against the supposed infringer of his trademark or name. Philip Morris, the manufacturer of Marlboro cigarettes, did not go by this route. Philip Morris did not file a civil action for infringement of its trademark against the Del Rosarios before the RTC of Angeles City. Instead, Philip Morris sought assistance from the NBI for the apprehension and criminal prosecution of those reportedly appropriating its trademark and selling fake Marlboro cigarettes. In turn, the NBI instituted a police action that included applying for a search and seizure warrant under Sections 3, 4, 5 and 6 of Rule 126 of the Rules of Criminal Procedure (not under the provisions of A.M. 02-1-06-SC) against the Del Rosarios upon the belief that they were storing and selling fake Marlboro cigarettes in violation of the penal provisions of the intellectual property law. The proceeding under Rule 126, a limited criminal one, does not provide for the filing of counterclaims for damages against those who may have improperly sought the issuance of the search warrant. Consequently, the Del Rosarios had the right to seek damages, if the circumstances warranted, by separate civil action for the wrong inflicted on them by an improperly obtained or enforced search warrant. Unfortunately, their complaint, as worded, failed to state a proper cause of action.1avvphi1 Petitioner Arthur del Rosario claims that respondents NBI agents wrongfully included him as respondent in their application for a search warrant since he neither owned the house at 51 New York Street nor resided in it. But the rules do not require respondents in search warrant proceedings to be residents of the premises to be searched. If this were the case, criminals in possession of illegal articles could simply use other peoples residence for storing such articles to avoid being raided and searched. The Del Rosarios raise a number of procedural issues: a) the supposed failure of respondents NBI agents to file their motion for reconsideration of the RTC order denying their motion to dismiss within 15 days of receipt of the order; b) their resort to a special civil action of certiorari to challenge the RTCs denial of their motion to dismiss; c) the propriety of their inclusion of a motion to dismiss in their answer; d) the CAs grant to them in 2003 of a 15-day extension to file a petition for certiorari after the lapse of 60 days when the Court did not yet come out with a ruling that barred such extension; and e) their being represented by private counsel rather than by the Office of the Solicitor General. With the Courts rulings in the principal issues raised in this case, it finds no sufficient reason to further dwell on the lesser issues that the Del Rosarios raise above. Besides, the Court finds no error in the CAs disposition of the same. WHEREFORE, the Court DENIES the petition and AFFIRMS the Decision of the Court of Appeals in CAG.R. SP 79496 dated June 29, 2007 and its Resolution dated November 19, 2007 for the reasons stated in this Decision, with the MODIFICATION that Civil Case 10584 is DISMISSED without prejudice. SO ORDERED.

JOSE ANTONIO LEVISTE, Petitioner,

G.R. No. 189122 Present: CORONA, J., Chairperson, VELASCO, JR., NACHURA, PERALTA and MENDOZA, JJ.

- versus -

THE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents.

Promulgated: March 17, 2010

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

DECISION

CORONA, J.:

Bail, the security given by an accused who is in the custody of the law for his release to guarantee his appearance before any court as may be required,
[1]

is the answer of the criminal justice system to a

vexing question: what is to be done with the accused, whose guilt has not yet been proven, in the dubious interval, often years long, between arrest and final adjudication?
[2]

Bail acts as a reconciling

mechanism to accommodate both the accuseds interest in pretrial liberty and societys interest in assuring the accuseds presence at trial. Upon conviction by the
[3]

Regional

Trial

Court of

an

offense

not

punishable

by

death, reclusion perpetua or life imprisonment, the accused who has been sentenced to prison must typically begin serving time immediately unless, on application, he is admitted to bail.
[4]

An accused not

released on bail is incarcerated before an appellate court confirms that his conviction is legal and proper. An erroneously convicted accused who is denied bail loses his liberty to pay a debt to society he has never owed.
[5]

Even if the conviction is subsequently affirmed, however, the accuseds interest in bail

pending appeal includes freedom pending judicial review, opportunity to efficiently prepare his case and avoidance of potential hardships of prison.
[6]

On the other hand, society has a compelling interest in

protecting itself by swiftly incarcerating an individual who is found guilty beyond reasonable doubt of a crime serious enough to warrant prison time.
[7]

Other recognized societal interests in the denial of bail

pending appeal include the prevention of the accusedsflight from court custody, the protection of the

community from potential danger and the avoidance of delay in punishment.

[8]

Under what circumstances

an accused may obtain bail pending appeal, then, is a delicate balance between the interests of society and those of the accused.
[9]

Our rules authorize the proper courts to exercise discretion in the grant of bail pending appeal to those convicted by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. In the exercise of that discretion, the proper courts are to be guided by the fundamental principle that the allowance of bail pending appeal should be exercised not with laxity but with grave caution and only for strong reasons, considering that the accused has been in fact convicted by the trial court. THE FACTS Charged with the murder of Rafael de las Alas, petitioner Jose Antonio Leviste was convicted by the Regional Trial Court of Makati City for the lesser crime of homicide and sentenced to suffer an indeterminate penalty of six years and one day of prision mayor as minimum to 12 years and one day of reclusion temporal as maximum.
[11] [10]

He appealed his conviction to the Court of Appeals.

[12]

Pending appeal, he filed an urgent

application for admission to bail pending appeal, citing his advanced age and health condition, and claiming the absence of any risk or possibility of flight on his part. The Court of Appeals denied petitioners application for bail.
[13]

It invoked the bedrock principle in

the matter of bail pending appeal, that the discretion to extend bail during the course of appeal should be exercised with grave caution and only for strong reasons. Citing well-established jurisprudence, it ruled that bail is not a sick pass for an ailing or aged detainee or a prisoner needing medical care outside the prison facility. It found that petitioner failed to show that he suffers from ailment of such gravity that his continued confinement during trial will permanently impair his health or put his life in danger. x x x Notably, the physical condition of [petitioner] does not prevent him from seeking medical attention while confined in prison, though he clearly preferred to be attended by [14] his personal physician.

For purposes of determining whether petitioners application for bail could be allowed pending appeal, the Court of Appeals also considered the fact of petitioners conviction. It made a preliminary evaluation of petitioners case and made a prima
[15]

facie determination

that

there

was

no reason substantial enough to overturn the evidence of petitioners guilt. Petitioners motion for reconsideration was denied.

Petitioner now questions as grave abuse of discretion the denial of his application for bail, considering that none of the conditions justifying denial of bail under the third paragraph of Section 5,

Rule 114 of the Rules of Court was present. Petitioners theory is that, where the penalty imposed by the trial court is more than six years but not more than 20 years and the circumstances mentioned in the third paragraph of Section 5 are absent, bail must be granted to an appellant pending appeal.

THE ISSUE

The question presented to the Court is this: in an application for bail pending appeal by an appellant sentenced by the trial court to a penalty of imprisonment for more than six years, does the discretionary nature of the grant of bail pending appeal mean that bail should automatically be granted absent any of the circumstances mentioned in the third paragraph of Section 5, Rule 114 of the Rules of Court? Section 5, Rule 114 of the Rules of Court provides: Sec. 5. Bail, when discretionary. Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from nonbailable to bailable, the application for bail can only be filed with and resolved by the appellate court. Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman. If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without a valid justification; (c) That he committed the offense while under probation, parole, or conditional pardon; (d) That the circumstances of his case indicate the probability of flight if released on bail; or (e) That there is undue risk that he may commit another crime during the pendency of the appeal.

The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case. (emphasis supplied) Petitioner claims that, in the absence of any of the circumstances mentioned in the third paragraph of Section 5, Rule 114 of the Rules of Court, an application for bail by an appellant sentenced by the Regional Trial Court to a penalty of more than six years imprisonment should automatically be granted. Petitioners stance is contrary to fundamental considerations of procedural and substantive rules. BASIC PROCEDURAL CONCERNS FORBID GRANT OF PETITION

Petitioner filed this special civil action for certiorari under Rule 65 of the Rules of Court to assail the denial by the Court of Appeals of his urgent application for admission to bail pending appeal. While the said remedy may be resorted to challenge an interlocutory order, such remedy is proper only where the interlocutory order was rendered without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.
[16]

Other than the sweeping averment that [t]he Court of Appeals committed grave abuse of discretion in denying petitioners application for bail pending appeal despite the fact that none of the conditions to justify the denial thereof under Rule 114, Section 5 [is] present, much less proven by the prosecution,
[17]

however, petitioner actually failed to establish that the Court of Appeals indeed acted with

grave abuse of discretion. He simply relies on his claim that the Court of Appeals should have granted bail in view of the absence of any of the circumstances enumerated in the third paragraph of Section 5, Rule 114 of the Rules of Court. Furthermore, petitioner asserts that the Court of Appeals committed a grave error and prejudged the appeal by denying his application for bail on the ground that the evidence that he committed a capital offense was strong. We disagree. It cannot be said that the Court of Appeals issued the assailed resolution without or in excess of its jurisdiction. One, pending appeal of a conviction by the Regional Trial Court of an offense not punishable by death, reclusionperpetua, or life imprisonment, admission to bail is expressly declared to be discretionary. Two, the discretion to allow or disallow bail pending appeal in a case such as this where the decision of the trial court convicting the accused changed the nature of the offense from nonbailable to bailable is exclusively lodged by the rules with the appellate court. Thus, the Court of Appeals had jurisdiction to hear and resolve petitioners urgent application for admission to bail pending appeal. Neither can it be correctly claimed that the Court of Appeals committed grave abuse of discretion when it denied petitioners application for bail pending appeal. Grave abuse of discretion is not simply an error in judgment but it is such a capricious and whimsical exercise of judgment which is tantamount to lack of jurisdiction.
[18]

Ordinary abuse of discretion is insufficient. The abuse of discretion must be

grave, that is, the power is exercised in an arbitrary or despotic manner by reason of passion or personal

hostility.

[19]

It must be so patent and gross as to amount to evasion of positive duty or to a virtual refusal to

perform the duty enjoined by or to act at all in contemplation of the law. In other words, for a petition for certiorari to prosper, there must be a clear showing of caprice and arbitrariness in the exercise of discretion.
[20]

Petitioner never alleged that, in denying his application for bail pending appeal, the Court of Appeals exercised its judgment capriciously and whimsically. No capriciousness or arbitrariness in the exercise of discretion was ever imputed to the appellate court. Nor could any such implication or imputation be inferred. As observed earlier, the Court of Appeals exercised grave caution in the exercise of its discretion. The denial of petitioners application for bail pending appeal was not unreasonable but was the result of a thorough assessment of petitioners claim of ill health. By making a preliminary appraisal of the merits of the case for the purpose of granting bail, the court also determined whether the appeal was frivolous or not, or whether it raised a substantial question. The appellate court did not exercise its discretion in a careless manner but followed doctrinal rulings of this Court. At best, petitioner only points out the Court of Appeals erroneous application and interpretation of Section 5, Rule 114 of the Rules of Court. However, the extraordinary writ of certiorari will not be issued to cure errors in proceedings or erroneous conclusions of law or fact. connection, Lee v. People
[22] [21]

In this

is apropos:

Certiorari may not be availed of where it is not shown that the respondent court lacked or exceeded its jurisdiction over the case, even if its findings are not correct. Its questioned acts would at most constitute errors of law and not abuse of discretion correctible by certiorari. In other words, certiorari will issue only to correct errors of jurisdiction and not to correct errors of procedure or mistakes in the courts findings and conclusions. An interlocutory order may be assailed by certiorari or prohibition only when it is shown that the court acted without or in excess of jurisdiction or with grave abuse of discretion. However, this Court generally frowns upon this remedial measure as regards interlocutory orders. To tolerate the practice of allowing interlocutory orders to be the subject of review by certiorari will not only delay the administration of justice but will also [23] unduly burden the courts. (emphasis supplied)

WORDING OF THIRD PARAGRAPH OF SECTION 5, RULE 114 CONTRADICTS PETITIONERS INTERPRETATION

The third paragraph of Section 5, Rule 114 applies to two scenarios where the penalty imposed on the appellant applying for bail is imprisonment exceeding six years. The first scenario deals with the circumstances enumerated in the said paragraph (namely, recidivism, quasi-recidivism, habitual delinquency or commission of the crime aggravated by the circumstance of reiteration; previous escape from legal confinement, evasion of sentence or violation of the conditions of his bail without a valid justification; commission of the offense while under probation, parole or conditional pardon;

circumstances indicating the probability of flight if released on bail; undue risk of committing another crime during the pendency of the appeal; or other similar circumstances) not present. The second scenario contemplates the existence of at least one of the said circumstances. The implications of this distinction are discussed with erudition and clarity in the commentary of retired Supreme Court Justice Florenz D. Regalado, an authority in remedial law: Under the present revised Rule 114, the availability of bail to an accused may be summarized in the following rules: xxx xxx xxx

e. After conviction by the Regional Trial Court wherein a penalty of imprisonment exceeding 6 years but not more than 20 years is imposed, and not one of the circumstances stated in Sec. 5 or any other similar circumstance is present and proved, bail is a matter of discretion (Sec. 5); f. After conviction by the Regional Trial Court imposing a penalty of imprisonment exceeding 6 years but not more than 20 years, and any of the circumstances stated in Sec. 5 or any other similar circumstance is present and [24] proved, no bail shall be granted by said court (Sec. 5); x x x (emphasis supplied)

Retired Court of Appeals Justice Oscar M. Herrera, another authority in remedial law, is of the same thinking: Bail is either a matter of right or of discretion. It is a matter of right when the offense charged is not punishable by death, reclusion perpetua or life imprisonment. On the other hand, upon conviction by the Regional Trial Court of an offense not punishable death, reclusion perpetua or life imprisonment, bail becomes a matter of discretion. Similarly, if the court imposed a penalty of imprisonment exceeding six (6) years then bail is a matter of discretion, except when any of the enumerated circumstances under paragraph 3 of Section 5, Rule 114 is present then bail shall [25] be denied. (emphasis supplied) In the first situation, bail is a matter of sound judicial discretion. This means that, if none of the circumstances mentioned in the third paragraph of Section 5, Rule 114 is present, the appellate court has the discretion to grant or deny bail. An application for bail pending appeal may be denied even if the bailnegating
[26]

circumstances in the third paragraph of Section 5, Rule 114 are absent. In other words, the

appellate courts denial of bail pending appeal where none of the said circumstances exists does not, by and of itself, constitute abuse of discretion. On the other hand, in the second situation, the appellate court exercises a more stringent discretion, that is, to carefully ascertain whether any of the enumerated circumstances in fact exists. If it so determines, it has no other option except to deny or revoke bail pending appeal. Conversely, if the appellate court grants bail pending appeal, grave abuse of discretion will thereby be committed.

Given these two distinct scenarios, therefore, any application for bail pending appeal should be viewed from the perspective of two stages: (1) the determination of discretion stage, where the appellate court must determine whether any of the circumstances in the third paragraph of Section 5, Rule 114 is present; this will establish whether or not the appellate court will exercise sound discretion or stringent discretion in resolving the application for bail pending appeal and (2) the exercise of discretion stage where, assuming the appellants case falls within the first scenario allowing the exercise of sound discretion, the appellate court may consider all relevant circumstances, other than those mentioned in the third paragraph of Section 5, Rule 114, including the demands of equity and justice; thereof, it may either allow or disallow bail. On the other hand, if the appellants case falls within the second scenario, the appellate courts stringent discretion requires that the exercise thereof be primarily focused on the determination of the proof of the presence of any of the circumstances that are prejudicial to the allowance of bail. This is so because the existence of any of those circumstances is by itself sufficient to deny or revoke bail. Nonetheless, a finding that none of the said circumstances is present will not automatically result in the grant of bail. Such finding will simply authorize the court to use the less stringent sound discretion approach. Petitioner disregards the fine yet substantial distinction between the two different situations that are governed by the third paragraph of Section 5, Rule 114. Instead, petitioner insists on a simplistic treatment that unduly dilutes the import of the said provision and trivializes the established policy governing the grant of bail pending appeal. In particular, a careful reading of petitioners arguments reveals that it interprets the third paragraph of Section 5, Rule 114 to cover all situations where the penalty imposed by the trial court on the appellant is imprisonment exceeding six years. For petitioner, in such a situation, the grant of bail pending appeal is always subject to limited discretion, that is, one restricted to the determination of whether any of the five bail-negating circumstances exists. The implication of this position is that, if any such circumstance is present, then bail will be denied. Otherwise, bail will be granted pending appeal. Petitioners theory therefore reduces the appellate court into a mere fact-finding body whose authority is limited to determining whether any of the five circumstances mentioned in the third paragraph of Section 5, Rule 114 exists. This unduly constricts its discretion into merely filling out the checklist of circumstances in the third paragraph of Section 5, Rule 114 in all instances where the penalty imposed by the Regional Trial Court on the appellant is imprisonment exceeding six years. In short, petitioners interpretation severely curbs the discretion of the appellate court by requiring it to determine a singular factual issue whether any of the five bail-negating circumstances is present. However, judicial discretion has been defined as choice. with the selection of the outcome left to the decision maker. clearly defined rule of action is the end of discretion.
[29] [28] [27]

on the basis

Choice occurs where, between two

alternatives or among a possibly infinite number (of options), there is more than one possible outcome, On the other hand, the establishment of a
[30]

Thus, by severely clipping the appellate

courts discretion and relegating that tribunal to a mere fact-finding body in applications for bail pending appeal in all instances where the penalty imposed by the trial court on the appellant is imprisonment exceeding six years, petitioners theory effectively renders nugatory the provision that upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The judicial discretion granted to the proper court (the Court of Appeals in this case) to rule on applications for bail pending appeal must necessarily involve the exercise of judgment on the part of the court. The court must be allowed reasonable latitude to express its own view of the case, its appreciation of the facts and its understanding of the applicable law on the matter. present to abide by his punishment if his conviction is affirmed. reputation of the applicant,
[33] [32] [31]

In view of the grave caution

required of it, the court should consider whether or not, under all circumstances, the accused will be It should also give due regard to any other pertinent matters beyond the record of the particular case, such as the record, character and among other things. More importantly, the discretion to determine allowance or disallowance of bail pending appeal necessarily includes, at the very least, an initial determination that the appeal is not frivolous but raises a substantial question of law or fact which must be determined by the appellate court.
[34]

In other words, a threshold requirement for the grant of bail is a showing that the
[35]

appeal is not pro forma and merely intended for delay but presents a fairly debatable issue.

This must

be so; otherwise, the appellate courts will be deluged withfrivolous and time-wasting appeals made for the purpose of taking advantage of a lenient attitude on bail pending appeal. Even more significantly, this comports with the very strong presumption on appeal that the lower courts exercise of discretionary power was sound,
[36]

specially since the rules on criminal procedure require that no judgment shall be
[37]

reversed or modified by the Court of Appeals except for substantial error.

Moreover, to limit the bail-negating circumstances to the five situations mentioned in the third paragraph of Section 5, Rule 114 is wrong. By restricting the bail-negating circumstances to those expressly mentioned, petitioner applies theexpressio unius est exclusio alterius
[38]

rule in statutory

construction. However, the very language of the third paragraph of Section 5, Rule 114 contradicts the idea that the enumeration of the five situations therein was meant to be exclusive. The provision categorically refers to the following or other similar circumstances. Hence, under the rules, similarly relevant situations other than those listed in the third paragraph of Section 5, Rule 114 may be considered in the allowance, denial or revocation of bail pending appeal. Finally, laws and rules should not be interpreted in such a way that leads to unreasonable or senseless consequences. An absurd situation will result from adopting petitioners interpretation that, where the penalty imposed by the trial court is imprisonment exceeding six years, bail ought to be granted if none of the listed bail-negating circumstances exists. Allowance of bail pending appeal in cases where the penalty imposed is more than six years of imprisonment will be more lenient than in cases where the penalty imposed does not exceed six years. While denial or revocation of bail in cases where the penalty imposed is more than six years imprisonment must be made only if any of the five bail-negating conditions is present, bail pending appeal in cases where the penalty imposed does not exceed six years imprisonment may be denied even without those conditions.

Is it reasonable and in conformity with the dictates of justice that bail pending appeal be more accessible to those convicted of serious offenses, compared to those convicted of less serious crimes? PETITIONERS THEORY DEVIATES FROM HISTORY AND EVOLUTION OF RULE ON BAIL PENDING APPEAL

Petitioners interpretation deviates from, even radically alters, the history and evolution of the provisions on bail pending appeal. The relevant original provisions on bail were provided under Sections 3 to 6, Rule 110 of the 1940 Rules of Criminal Procedure: Sec. 3. Offenses less than capital before conviction by the Court of First Instance. After judgment by a municipal judge and before conviction by the Court of First Instance, the defendant shall be admitted to bail as of right. Sec. 4. Non-capital offenses after conviction by the Court of First Instance. After conviction by the Court of First Instance, defendant may, upon application, be bailed at the discretion of the court. Sec. 5. Capital offense defined. A capital offense, as the term is used in this rule, is an offense which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death. Sec. 6. Capital offense not bailable. No person in custody for the commission of a capital offense shall be admitted to bail if the evidence of his guilt is strong.

The aforementioned provisions were reproduced as Sections 3 to 6, Rule 114 of the 1964 Rules of Criminal Procedure and then of the 1985 Rules of Criminal Procedure. They were modified in 1988 to read as follows: Sec. 3. Bail, a matter of right; exception. All persons in custody, shall before final conviction be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong. Sec. 4. Capital offense, defined. A capital offense, as the term is used in this Rules, is an offense which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death. (emphasis supplied) The significance of the above changes was clarified in Administrative Circular No. 2-92 dated January 20, 1992 as follows: The basic governing principle on the right of the accused to bail is laid down in Section 3 of Rule 114 of the 1985 Rules on Criminal Procedure, as amended, which provides:

Sec. 3. Bail, a matter of right; exception. All persons in custody, shall before final conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong. Pursuant to the aforecited provision, an accused who is charged with a capital offense or an offense punishable byreclusion perpetua, shall no longer be entitled to bail as a matter of right even if he appeals the case to this Court since his conviction clearly imports that the evidence of his guilt of the offense charged is strong. Hence, for the guidelines of the bench and bar with respect to future as well as pending cases before the trial courts, this Court en banc lays down the following policies concerning the effectivity of the bail of the accused, to wit: 1) When an accused is charged with an offense which under the law existing at the time of its commission and at the time of the application for bail is punishable by a penalty lower than reclusion perpetua and is out on bail, and after trial is convicted by the trial court of the offense charged or of a lesser offense than that charged in the complaint or information, he may be allowed to remain free on his original bail pending the resolution of his appeal, unless the proper court directs otherwise pursuant to Rule 114, Sec. 2 (a) of the Rules of Court, as amended; 2) When an accused is charged with a capital offense or an offense which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion perpetua and is out on bail, and after trial is convicted by the trial court of a lesser offense than that charged in the complaint or information, the same rule set forth in the preceding paragraph shall be applied; 3) When an accused is charged with a capital offense or an offense which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion perpetua and is out on bail and after trial is convicted by the trial court of the offense charged, his bond shall be cancelled and the accused shall be placed in confinement pending resolution of his appeal. As to criminal cases covered under the third rule abovecited, which are now pending appeal before his Court where the accused is still on provisional liberty, the following rules are laid down: 1) This Court shall order the bondsman to surrender the accused within ten (10) days from notice to the court of origin. The bondsman thereupon, shall inform this Court of the fact of surrender, after which, the cancellation of the bond shall be ordered by this Court; 2) The RTC shall order the transmittal of the accused to the National Bureau of Prisons thru the Philippine National Police as the accused shall remain under confinement pending resolution of his appeal; 3) If the accused-appellant is not surrendered within the aforesaid period of ten (10) days, his bond shall be forfeited and an order of arrest shall be issued by this Court. The appeal taken by the accused shall also be dismissed under Section 8, Rule 124 of the Revised Rules of Court as he shall be deemed to have jumped his bail. (emphasis supplied)

Amendments were further introduced in Administrative Circular No. 12-94 dated August 16, 1994 which brought about important changes in the said rules as follows: SECTION 4. Bail, a matter of right. All persons in custody shall: (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities and Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right, with sufficient sureties, or be released on recognizance as prescribed by law of this Rule. (3a) SECTION 5. Bail, when discretionary. Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the court, on application, may admit the accused to bail. The court, in its discretion, may allow the accused to continue on provisional liberty under the same bail bond during the period of appeal subject to the consent of the bondsman. If the court imposed a penalty of imprisonment exceeding six (6) years but not more than twenty (20) years, the accused shall be denied bail, or his bail previously granted shall be cancelled, upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That the accused is found to have previously escaped from legal confinement, evaded sentence or has violated the conditions of his bail without valid justification; (c) That the accused committed the offense while on probation, parole, under conditional pardon; (d) That the circumstances of the accused or his case indicate the probability of flight if released on bail; or (e) That there is undue risk that during the pendency of the appeal, the accused may commit another crime. The appellate court may review the resolution of the Regional Trial Court, on motion and with notice to the adverse party. (n) SECTION 6. Capital offense, defined. A capital offense, as the term is used in these Rules, is an offense which, under the law existing at the time of its commission and at the time of the application to be admitted to bail, maybe punished with death. (4) SECTION 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution. (emphasis supplied)

The above amendments of Administrative Circular No. 12-94 to Rule 114 were thereafter amended by A.M. No. 00-5-03-SC to read as they do now. The development over time of these rules reveals an orientation towards a more restrictive approach to bail pending appeal. It indicates a faithful adherence to the bedrock principle, that is, bail pending appeal should be allowed not with leniency but with grave caution and only for strong reasons. The earliest rules on the matter made all grants of bail after conviction for a non-capital offense by the Court of First Instance (predecessor of the Regional Trial Court) discretionary. The 1988 amendments made applications for bail pending appeal favorable to the appellant-applicant. Bail before final of conviction the action in where
[39]

trial the

courts charge

for was

non-capital not for a

offenses capital

or

offenses or

not not

punishable punished

by reclusion perpetua was a matter of right, meaning, admission to bail was a matter of right at any stage offense was by reclusion perpetua.

The amendments introduced by Administrative Circular No. 12-94 made bail pending appeal (of a conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment) discretionary. Thus, Administrative Circular No. 12-94 laid down more stringent rules on the matter of post-conviction grant of bail. A.M. No. 00-5-03-SC modified Administrative Circular No. 12-94 by clearly identifying which court has authority to act on applications for bail pending appeal under certain conditions and in particular situations. More importantly, it reiterated the tough on bail pending appeal configuration of Administrative Circular No. 12-94. In particular, it amended Section 3 of the 1988 Rules on Criminal Procedure which entitled the accused to bail as a matter of right before final conviction.
[40]

Under the

present rule, bail is a matter of discretion upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. Indeed, pursuant to the tough on bail pending appeal policy, the presence of bail-negating conditions mandates the denial or revocation of bail pending appeal such that those circumstances are deemed to be as grave as conviction by the trial court for an offense punishable by death, reclusion perpetua or life imprisonment where bail is prohibited. Now, what is more in consonance with a stringent standards approach to bail pending appeal? What is more in conformity with an ex abundante cautelam view of bail pending appeal? Is it a rule which favors the automatic grant ofbail in the absence of any of the circumstances under the third paragraph of Section 5, Rule 114? Or is it a rule that authorizes the denial of bail after due consideration of all relevant circumstances, even if none of the circumstances under the third paragraph of Section 5, Rule 114 is present? The present inclination of the rules on criminal procedure to frown on bail pending appeal parallels the approach adopted in the United States where our original constitutional and procedural provisions on bail emanated.
[41]

While this is of course not to be followed blindly, it nonetheless shows

that our treatment of bail pending appeal is no different from that in other democratic societies.

In our jurisdiction, the trend towards a strict attitude towards the allowance of bail pending appeal is anchored on the principle that judicial discretion particularly with respect to extending bail should be exercised not with laxity but with caution and only for strong reasons.
[42]

In fact, it has even been

pointed out that grave caution that must attend the exercise of judicial discretion in granting bail to a convicted accused is best illustrated and exemplified in Administrative Circular No. 12-94 amending Rule 114, Section 5.
[43]

Furthermore, this Court has been guided by the following: The importance attached to conviction is due to the underlying principle that bail should be granted only where it is uncertain whether the accused is guilty or innocent, and therefore, where that uncertainty is removed by conviction it would, generally speaking, be absurd to admit to bail. After a person has been tried and convicted the presumption of innocence which may be relied upon in prior applications is rebutted, and the burden is upon the accused to show error in the conviction. From another point of view it may be properly argued that the probability of ultimate punishment is so enhanced by the conviction that the accused is much more likely to [44] attempt to escape if liberated on bail than before conviction. (emphasis supplied) As a matter of fact, endorsing the reasoning quoted above and relying thereon, the Court declared in Yap v. Court of Appeals
[45]

(promulgated in 2001 when the present rules were already

effective), that denial of bail pending appealis a matter of wise discretion.

A FINAL WORD Section 13, Article II of the Constitution provides: SEC. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. xx x (emphasis supplied)

After conviction by the trial court, the presumption of innocence terminates and, accordingly, the constitutional right to bail ends.
[46]

From then on, the grant of bail is subject to judicial discretion. At the

risk of being repetitious, such discretion must be exercised with grave caution and only for strong reasons. Considering that the accused was in fact convicted by the trial court, allowance of bail pending appeal should be guided by a stringent-standards approach. This judicial disposition finds strong support in the history and evolution of the rules on bail and the language of Section 5, Rule 114 of the Rules of Court. It is likewise consistent with the trial courts initial determination that the accused should be in prison. Furthermore, letting the accused out on bail despite his conviction may destroy the deterrent effect of our criminal laws. This is especially germane to bail pending appeal because long delays often separate sentencing in the trial court and appellate review. In addition, at the post-conviction stage, the

accused faces a certain prison sentence and thus may be more likely to flee regardless of bail bonds or other release conditions. Finally, permitting bail too freely in spite of conviction invites frivolous and timewasting appeals which will make a mockery of our criminal justice system and court processes. WHEREFORE, the petition is hereby DISMISSED. The Court of Appeals is hereby directed to resolve and decide, on the merits, the appeal of petitioner Jose AntonioLeviste docketed as CA-G.R. CR No. 32159, with dispatch. Costs against petitioner.

SO ORDERED.

[A.M. No. MTJ-02-1388. August 12, 2003]

FELISA TABORITE and LUCY T. GALLARDO, complainants, vs. JUDGE MANUEL S. SOLLESTA, MUNICIPAL CIRCUIT TRIAL COURT, SURALLAH, SOUTH COTABATO, respondent. DECISION SANDOVAL-GUTIERREZ, J.: Judges should be the epitome of competence, integrity and independence to be able to render justice and uphold public confidence in the legal system. They are expected to demonstrate mastery of the principles of law, keep abreast of prevailing jurisprudence and discharge their duties in accordance therewith, more than just a cursory acquaintance with statutes and procedural rules. This administrative case arose from a sworn complaint dated May 4, 1999, filed with the Office of the Court Administrator (OCA) by Felisa L. Taborite and Lucy T. Gallardo, charging Judge Manuel S. [2] Sollesta with oppression and knowingly rendering unjust judgment in Criminal Case No. 3398 for murder. Respondent is the acting presiding judge of the Municipal Circuit Trial Court (MCTC), SurallahLake, South Cotabato. Felisa Taborite and Lucy Gallardo alleged in their complaint that they are the widow and sister, respectively, of Bienvenido Taborite. On June 26, 1998, he was killed by Reynaldo Divino. The following day, a complaint for murder was filed with the said MCTC. On September 1, 1998, the Philippine National Police Criminal Investigation Group (PNP-CIG) of Koronadal, South Cotabato arrested the accused. He then filed with the MCTC a petition for bail which was set for hearing on September 23, 1998. Complainants and the PNP-CIG did not receive any subpoena. The hearing was again set on September 30, 1998. This time, SPO2 Wilfredo D. Bautista of the PNP-CIG was notified, but not the public prosecutors. Thus, during the hearing, only counsel for the accused and SPO2 Bautista appeared. On October 21, 1998, respondent issued an Order granting the petition and fixing the bail bond at P50,000.00. On January 14, 1999, the accused posted his bail and on January 20, 1999, he was ordered released. Complainants further alleged that respondent, in ordering the release of the accused charged with murder, without the requisite hearing and recommendation from the prosecutor, committed (1) oppression and (2) knowingly rendering unjust judgment. In his comment dated August 5, 1999, respondent averred that after several hearings, he granted the petition for bail because the evidence against the accused was weak. He further stated that on January 28, 1999, he forwarded the case to the Office of the Provincial Prosecutor for the filing of the corresponding information. In his evaluation of this administrative complaint, Court Administrator Presbitero J. Velasco found that respondent granted bail to the accused without notice to the prosecution, thus, depriving it the opportunity to oppose the petition for bail. Thus, he recommended that the instant case be re-docketed as [6] a regular administrative matter and that respondent be fined in the amount ofP20,000.00, with a warning [7] that the commission of the same or similar offense will be dealt with more severely. Pursuant to the Resolution dated December 10, 2001 of this Court, the parties manifested that they are submitting the case for resolution on the basis of the pleadings filed. We agree with the findings and recommendation of the Court Administrator. In this jurisdiction, before a judge may grant an application for bail, whether bail is a matter of right or discretion, the prosecutor must be given reasonable notice of hearing or he must be asked to [9] submit his recommendation. Section 18, Rule 114 of the Revised Rules of Criminal Procedure, as amended, provides:
[8] [5] [4] [3] [1]

SEC. 18. Notice of application to the prosecutor. In the application for bail under Section 8 of this Rule, the court must give reasonable notice of the hearing to the prosecutor or require him to submit his recommendation. (Emphasis ours) In Cortes vs. Catral, application for bail is filed:
[11]

[10]

we laid down the following rules outlining the duties of the judge in case an

1. In all cases whether bail is a matter of right or discretion, notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Section 18, Rule 114 of the Revised Rules of Court, as amended); 2. Where bail is a matter of discretion, conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion (Sections 7 and 8, id.); 3. Decide whether the guilt of the accused is strong based on the summary of evidence of the prosecution; 4. If the guilt of the accused is not strong, discharge the accused upon the approval of the bail bond (Section 19, id); otherwise, the petition should be denied. With such clear procedural guidelines now incorporated in the Revised Rules of Criminal Procedure, as amended, judges have been enjoined to study them well and be guided accordingly. It is to be noted that in the present case, respondent was acting upon a case of murder punishable by reclusion perpetua to death. In Baylon vs. Sison, we succinctly held: "Quintessentially, and as a matter of law, the discretion of the court in cases involving capital offenses may be exercised only after there has been a hearing called to ascertain the weight of the evidence against the accused. Peremptorily, the discretion lies not in determining whether or not there will be a hearing, but in appreciating and evaluating the weight of the evidence of guilt against the accused. It follows that any order issued in the absence of the requisite [13] evidence is not a product of sound judicial discretion but of whim and caprice and outright arbitrariness. In the present case, only the accused and his counsel, Atty. Bonifacio Pagunsan, were present during the hearing of the petition for bail. No government prosecutor appeared for lack of notice. Indeed, there was no opportunity on the part of the prosecution to show that the evidence of guilt against the accused is strong. As earlier pointed out, the prosecution must first be accorded an opportunity to present evidence. It is on the basis of such evidence that judicial discretion is exercised in determining whether the evidence of guilt of the accused is strong. In other words, discretion must be exercised regularly, legally and within the confines of procedural due process, that is, after evaluation of the evidence submitted by the prosecution. Any order issued in the absence thereof is not a product of sound judicial discretion but of [14] whim and caprice and outright arbitrariness. Granting bail in non-bailable offenses without hearing is gross ignorance of the law. When [16] the law is so elementary, as in this case, not to be aware of it constitutes ignorance of the law. Indeed, [17] everyone is presumed to know the law. Ignorance of the law, which everyone is bound to know, [18] excuses no one certainly not a judge from compliance therewith. Obviously, respondent judge fell short of his vow to live up to the injunction of the Code of Judicial [19] Conduct to maintain professional competence. It bears stressing that judges are duty-bound to be faithful to the law and to maintain professional competence at all times. Their role in the administration of justice requires a continuous study of the law
[15] [12]

and jurisprudence, lest public confidence in the judiciary be eroded by incompetence and irresponsible [20] conduct. Anent the imposable penalty, in Rosalia Docena-Caspe vs. Judge Arnulfo O. Bugtas, this Court imposed a P20,000.00 fine on respondent judge for gross ignorance of the rules. He granted bail to the two accused charged with murder without conducting a hearing and while they were at large. Similarly, [22] in Panganiban vs. Cupin-Tesoro, this Court fined respondent judge in the amount of P20,000.00 for gross ignorance of the law and conduct prejudicial to the best interest of the service in hastily granting bail to the accused, without notice to the prosecutor and without conducting a hearing. Also, in Layola vs. [23] Gabo, Jr., a Regional Trial Court judge was fined in the amount of P20,000.00 for granting bail to the accused in a murder case without the requisite bail hearing. In view of the gravity of respondents procedural lapses, specifically in granting bail to the accused charged with murder, without notice to the prosecutors, we find the same penalty to be appropriate. WHEREFORE, respondent Judge Manuel S. Sollesta is found GUILTY of gross ignorance of the law and is FINED in the amount of Twenty Thousand Pesos (P20,000.00), with the stern warning that a commission of similar acts in the future will be dealt with more severely. SO ORDERED.
[21]

SECOND DIVISION G.R. No. 172716 : November 17, 2010 JASON IVLER y AGUILAR, Petitioner, v. HON. MARIA ROWENA MODESTO-SAN PEDRO, Judge of the Metropolitan Trial Court, Branch 71, Pasig City, and EVANGELINE PONCE, Respondents. DECISION CARPIO, J.: The Case The petition seeks the review[1] of the Orders[2] of the Regional Trial Court of Pasig City affirming subsilencio a lower courts ruling finding inapplicable the Double Jeopardy Clause to bar a second prosecution for Reckless Imprudence Resulting in Homicide and Damage to Property. This, despite the accuseds previous conviction for Reckless Imprudence Resulting in Slight Physical Injuries arising from the same incident grounding the second prosecution. The Facts Following a vehicular collision in August 2004, petitioner Jason Ivler (petitioner) was charged before the Metropolitan Trial Court of Pasig City, Branch 71 (MeTC), with two separate offenses: (1) Reckless Imprudence Resulting in Slight Physical Injuries (Criminal Case No. 82367) for injuries sustained by respondent Evangeline L. Ponce (respondent Ponce); and (2) Reckless Imprudence Resulting in Homicide and Damage to Property (Criminal Case No. 82366) for the death of respondent Ponces husband Nestor C. Ponce and damage to the spouses Ponces vehicle. Petitioner posted bail for his temporary release in both cases. On 7 September 2004, petitioner pleaded guilty to the charge in Criminal Case No. 82367 and was meted out the penalty of public censure. Invoking this conviction, petitioner moved to quash the Information in Criminal Case No. 82366 for placing him in jeopardy of second punishment for the same offense of reckless imprudence. The MeTC refused quashal, finding no identity of offenses in the two cases.[3]cralaw After unsuccessfully seeking reconsideration, petitioner elevated the matter to the Regional Trial Court of Pasig City, Branch 157 (RTC), in a petition for Certiorari(S.C.A. No. 2803).craMeanwhile, petitioner sought from the MeTC the suspension of proceedings in Criminal Case No. 82366, including the arraignment on 17 May 2005, invoking S.C.A. No. 2803 as a prejudicial question. Without acting on petitioners motion, the MeTC proceeded with the arraignment and, because of petitioners absence, cancelled his bail and ordered his arrest.[4] Seven days later, the MeTC issued a resolution denying petitioners motion to suspend proceedings and postponing his arraignment until after his arrest.[5] Petitioner sought reconsideration but as of the filing of this petition, the motion remained unresolved. Relying on the arrest order against Petitioner, respondent Ponce sought in the RTC the dismissal of S.C.A. No. 2803 for petitioners loss of standing to maintain the suit. Petitioner contested the motion. The Ruling of the Trial Court In an Order dated 2 February 2006, the RTC dismissed S.C.A. No. 2803, narrowly grounding its ruling on petitioners forfeiture of standing to maintain S.C.A. No. 2803 arising from the MeTCs order to arrest petitioner for his non-appearance at the arraignment in Criminal Case No. 82366. Thus, without reaching the merits of S.C.A. No. 2803, the RTC effectively affirmed the MeTC. Petitioner sought reconsideration but this proved unavailing.[6]cralaw Hence, this petition.

Petitioner denies absconding. He explains that his petition in S.C.A. No. 2803 constrained him to forego participation in the proceedings in Criminal Case No. 82366. Petitioner distinguishes his case from the line of jurisprudence sanctioning dismissal of appeals for absconding appellants because his appeal before the RTC was a special civil action seeking a pre-trial relief, not a post-trial appeal of a judgment of conviction.[7]cralaw Petitioner laments the RTCs failure to reach the merits of his petition in S.C.A. 2803. Invoking jurisprudence, petitioner argues that his constitutional right not to be placed twice in jeopardy of punishment for the same offense bars his prosecution in Criminal Case No. 82366, having been previously convicted in Criminal Case No. 82367 for the same offense of reckless imprudence charged in Criminal Case No. 82366. Petitioner submits that the multiple consequences of such crime are material only to determine his penalty. Respondent Ponce finds no reason for the Court to disturb the RTCs decision forfeiting petitioners standing to maintain his petition in S.C.A. 2803. On the merits, respondent Ponce calls the Courts attention to jurisprudence holding that light offenses (e.g. slight physical injuries) cannot be complexed under Article 48 of the Revised Penal Code with grave or less grave felonies (e.g. homicide).craHence, the prosecution was obliged to separate the charge in Criminal Case No. 82366 for the slight physical injuries from Criminal Case No. 82367 for the homicide and damage to property. In the Resolution of 6 June 2007, we granted the Office of the Solicitor Generals motion not to file a comment to the petition as the public respondent judge is merely a nominal party and private respondent is represented by counsel. The Issues Two questions are presented for resolution: (1) whether petitioner forfeited his standing to seek relief in S.C.A. 2803 when the MeTC ordered his arrest following his non-appearance at the arraignment in Criminal Case No. 82366; and (2) if in the negative, whether petitioners constitutional right under the Double Jeopardy Clause bars further proceedings in Criminal Case No. 82366. The Ruling of the Court We hold that (1) petitioners non-appearance at the arraignment in Criminal Case No. 82366 did not divest him of personality to maintain the petition in S.C.A. 2803; and (2) the protection afforded by the Constitution shielding petitioner from prosecutions placing him in jeopardy of second punishment for the same offense bars further proceedings in Criminal Case No. 82366. Petitioners Non-appearance at the Arraignment in Criminal Case No. 82366 did not Divest him of Standing to Maintain the Petition in S.C.A. 2803 Dismissals of appeals grounded on the appellants escape from custody or violation of the terms of his bail bond are governed by the second paragraph of Section 8, Rule 124,[8] in relation to Section 1, Rule 125, of the Revised Rules on Criminal Procedure authorizing this Court or the Court of Appeals to also, upon motion of the appellee or motu proprio, dismiss the appeal if the appellant escapes from prison or confinement, jumps bail or flees to a foreign country during the pendency of the appeal. The appeal contemplated in Section 8 of Rule 124 is a suit to review judgments of convictions. The RTCs dismissal of petitioners special civil action for Certiorari to review a pre-arraignment ancillary question on the applicability of the Due Process Clause to bar proceedings in Criminal Case No. 82366 finds no basis under procedural rules and jurisprudence. The RTCs reliance on People v. Esparas[9] undercuts the cogency of its ruling because Esparas stands for a proposition contrary to the RTCs ruling. There, the Court granted review to an appeal by an accused who was sentenced to death for importing prohibited drugs even though she jumped bail pending trial and was thus tried and convicted in absentia.

The Court in Esparas treated the mandatory review of death sentences under Republic Act No. 7659 as an exception to Section 8 of Rule 124.[10]cralaw The mischief in the RTCs treatment of petitioners non-appearance at his arraignment in Criminal Case No. 82366 as proof of his loss of standing becomes more evident when one considers the Rules of Courts treatment of a defendant who absents himself from post-arraignment hearings. Under Section 21, Rule 114[11] of the Revised Rules of Criminal Procedure, the defendants absence merely renders his bondsman potentially liable on its bond (subject to cancellation should the bondsman fail to produce the accused within 30 days); the defendant retains his standing and, should he fail to surrender, will be tried in absentia and could be convicted or acquitted. Indeed, the 30-day period granted to the bondsman to produce the accused underscores the fact that mere non-appearance does not ipso facto convert the accuseds status to that of a fugitive without standing. Further, the RTCs observation that petitioner provided no explanation why he failed to attend the scheduled proceeding[12] at the MeTC is belied by the records. Days before the arraignment, petitioner sought the suspension of the MeTCs proceedings in Criminal Case No. 82366 in light of his petition with the RTC in S.C.A. No. 2803. Following the MeTCs refusal to defer arraignment (the order for which was released days after the MeTC ordered petitioners arrest), petitioner sought reconsideration. His motion remained unresolved as of the filing of this petition. Petitioners Conviction in Criminal Case No. 82367 Bars his Prosecution in Criminal Case No. 82366 The accuseds negative constitutional right not to be twice put in jeopardy of punishment for the same offense[13] protects him from, among others, post-conviction prosecution for the same offense, with the prior verdict rendered by a court of competent jurisdiction upon a valid information.[14] It is not disputed that petitioners conviction in Criminal Case No. 82367 was rendered by a court of competent jurisdiction upon a valid charge. Thus, the case turns on the question whether Criminal Case No. 82366 and Criminal Case No. 82367 involve the same offense. Petitioner adopts the affirmative view, submitting that the two cases concern the same offense of reckless imprudence. The MeTC ruled otherwise, finding that Reckless Imprudence Resulting in Slight Physical Injuries is an entirely separate offense from Reckless Imprudence Resulting in Homicide and Damage to Property as the [latter] requires proof of an additional fact which the other does not.[15]cralaw We find for petitioner. Reckless Imprudence is a Single Crime, its Consequences on Persons and Property are Material Only to Determine the Penalty The two charges against Petitioner, arising from the same facts, were prosecuted under the same provision of the Revised Penal Code, as amended, namely, Article 365 defining and penalizing quasioffenses. The text of the provision reads:chanroblesvirtuallawlibrary Imprudence and negligence. Any person who, by reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum period to prision correccional in its medium period; if it would have constituted a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed; if it would have constituted a light felony, the penalty of arresto menor in its maximum period shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed. When the execution of the act covered by this article shall have only resulted in damage to the property of another, the offender shall be punished by a fine ranging from an amount equal to the value of said damages to three times such value, but which shall in no case be less than twentyfive pesos. A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by simple imprudence or negligence, shall cause some wrong which, if done maliciously, would have constituted a light felony. In the imposition of these penalties, the court shall exercise their sound discretion, without regard to the rules prescribed in Article sixty-four. The provisions contained in this article shall not be applicable:chanroblesvirtuallawlibrary 1. When the penalty provided for the offense is equal to or lower than those provided in the first two paragraphs of this article, in which case the court shall impose the penalty next lower in degree than that which should be imposed in the period which they may deem proper to apply. 2. When, by imprudence or negligence and with violation of the Automobile Law, to death of a person shall be caused, in which case the defendant shall be punished by prision correccional in its medium and maximum periods. Reckless imprudence consists in voluntary, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the danger clearly manifest. The penalty next higher in degree to those provided for in this article shall be imposed upon the offender who fails to lend on the spot to the injured parties such help as may be in this hand to give. Structurally, these nine paragraphs are collapsible into four sub-groupings relating to (1) the penalties attached to the quasi-offenses of imprudence and negligence (paragraphs 1-2); (2) a modified penalty scheme for either or both quasi-offenses (paragraphs 3-4, 6 and 9); (3) a generic rule for trial courts in imposing penalties (paragraph 5); and (4) the definition of reckless imprudence and simple imprudence (paragraphs 7-8).craConceptually, quasi-offenses penalize the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible,[16] unlike willful offenses which punish the intentional criminal act. These structural and conceptual features of quasi-offenses set them apart from the mass of intentional crimes under the first 13 Titles of Book II of the Revised Penal Code, as amended. Indeed, the notion that quasi-offenses, whether reckless or simple, are distinct species of crime, separately defined and penalized under the framework of our penal laws, is nothing new. As early as the middle of the last century, we already sought to bring clarity to this field by rejecting in Quizon v. Justice of the Peace of Pampanga the proposition that reckless imprudence is not a crime in itself but simply a way of committing it x x x[17] on three points of analysis: (1) the object of punishment in quasi-crimes (as opposed to intentional crimes); (2) the legislative intent to treat quasi-crimes as distinct offenses (as opposed to subsuming them under the mitigating circumstance of minimal intent) and; (3) the different penalty structures for quasi-crimes and intentional crimes:chanroblesvirtuallawlibrary

The proposition (inferred from Art. 3 of the Revised Penal Code) that reckless imprudence is not a crime in itself but simply a way of committing it and merely determines a lower degree of criminal liability is too broad to deserve unqualified assent. There are crimes that by their structure cannot be committed through imprudence: murder, treason, robbery, malicious mischief, etc. In truth, criminal negligence in our Revised Penal Code is treated as a mere quasi offense, and dealt with separately from willful offenses. It is not a mere question of classification or terminology. In intentional crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible. x x x Were criminal negligence but a modality in the commission of felonies, operating only to reduce the penalty therefor, then it would be absorbed in the mitigating circumstances of Art. 13, specially the lack of intent to commit so grave a wrong as the one actually committed. Furthermore, the theory would require that the corresponding penalty should be fixed in proportion to the penalty prescribed for each crime when committed willfully. For each penalty for the willful offense, there would then be a corresponding penalty for the negligent variety. But instead, our Revised Penal Code (Art. 365) fixes the penalty for reckless imprudence at arresto mayor maximum, to prision correccional [medium], if the willful act would constitute a grave felony, notwithstanding that the penalty for the latter could range all the way from prision mayor to death, according to the case. It can be seen that the actual penalty for criminal negligence bears no relation to the individual willful crime, but is set in relation to a whole class, or series, of crimes.[18] (Emphasis supplied) This explains why the technically correct way to allege quasi-crimes is to state that their commission results in damage, either to person or property.[19]cralaw Accordingly, we found the Justice of the Peace in Quizon without jurisdiction to hear a case for Damage to Property through Reckless Imprudence, its jurisdiction being limited to trying charges for Malicious Mischief, an intentional crime conceptually incompatible with the element of imprudence obtaining in quasi-crimes. Quizon, rooted in Spanish law[20] (the normative ancestry of our present day penal code) and since repeatedly reiterated,[21] stands on solid conceptual foundation. The contrary doctrinal pronouncement in People v. Faller[22] that [r]eckless impudence is not a crime in itself x x x [but] simply a way of committing it x x x,[23] has long been abandoned when the Court en banc promulgated Quizon in 1955 nearly two decades after the Court decided Faller in 1939. Quizon rejected Fallers conceptualization of quasi-crimes by holding that quasi-crimes under Article 365 are distinct species of crimes and not merely methods of committing crimes. Faller found expression in post-Quizon jurisprudence[24] only by dint of lingering doctrinal confusion arising from an indiscriminate fusion of criminal law rules defining Article 365 crimes and the complexing of intentional crimes under Article 48 of the Revised Penal Code which, as will be shown shortly, rests on erroneous conception of quasi-crimes. Indeed, the Quizonian conception of quasi-crimes undergirded a related branch of jurisprudence applying the Double Jeopardy Clause to quasi-offenses, barring second prosecutions for a quasi-offense alleging one resulting act after a prior conviction or acquittal of a quasi-offense alleging another resulting act but arising from the same reckless act or omission upon which the second prosecution was based. Prior Conviction or Acquittal of Reckless Imprudence Bars Subsequent Prosecution for the Same Quasi-Offense The doctrine that reckless imprudence under Article 365 is a single quasi-offense by itself and not merely a means to commit other crimes such that conviction or acquittal of such quasi-offense bars subsequent

prosecution for the same quasi-offense, regardless of its various resulting acts, undergirded this Courts unbroken chain of jurisprudence on double jeopardy as applied to Article 365 starting with People v. Diaz,[25] decided in 1954. There, a full Court, speaking through Mr. Justice Montemayor, ordered the dismissal of a case for damage to property thru reckless imprudence because a prior case against the same accused for reckless driving, arising from the same act upon which the first prosecution was based, had been dismissed earlier. Since then, whenever the same legal question was brought before the Court, that is, whether prior conviction or acquittal of reckless imprudence bars subsequent prosecution for the same quasi-offense, regardless of the consequences alleged for both charges, the Court unfailingly and consistently answered in the affirmative in People v. Belga[26] (promulgated in 1957 by the Court en banc, per Reyes, J.), Yap v. Lutero[27] (promulgated in 1959, unreported, per Concepcion, J.), People v. Narvas[28] (promulgated in 1960 by the Court en banc, per Bengzon J.), People v. Silva[29] (promulgated in 1962 by the Court en banc, per Paredes, J.), People v. Macabuhay[30] (promulgated in 1966 by the Court en banc, per Makalintal, J.), People v. Buan[31] (promulgated in 1968 by the Court en banc, per Reyes, J.B.L., acting C. J.), Buerano v. Court of Appeals[32] (promulgated in 1982 by the Court en banc, per Relova, J.), and People v. City Court of Manila[33] (promulgated in 1983 by the First Division, per Relova, J.).craThese cases uniformly barred the second prosecutions as constitutionally impermissible under the Double Jeopardy Clause. The reason for this consistent stance of extending the constitutional protection under the Double Jeopardy Clause to quasi-offenses was best articulated by Mr. Justice J.B.L. Reyes in Buan, where, in barring a subsequent prosecution for serious physical injuries and damage to property thru reckless imprudence because of the accuseds prior acquittal of slight physical injuries thru reckless imprudence, with both charges grounded on the same act, the Court explained:[34]cralaw Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi offense of criminal negligence under article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty, it does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense (criminal negligence) remains one and the same, and can not be split into different crimes and prosecutions.[35] x x x (Emphasis supplied) Evidently, the Diaz line of jurisprudence on double jeopardy merely extended to its logical conclusion the reasoning of Quizon. There is in our jurisprudence only one ruling going against this unbroken line of authority. Preceding Diaz by more than a decade, El Pueblo de Filipinas v. Estipona,[36] decided by the pre-war colonial Court in November 1940, allowed the subsequent prosecution of an accused for reckless imprudence resulting in damage to property despite his previous conviction for multiple physical injuries arising from the same reckless operation of a motor vehicle upon which the second prosecution was based. Estiponas inconsistency with the post-war Diaz chain of jurisprudence suffices to impliedly overrule it. At any rate, all doubts on this matter were laid to rest in 1982 in Buerano.[37] There, we reviewed the Court of Appeals conviction of an accused for damage to property for reckless imprudence despite his prior conviction for slight and less serious physical injuries thru reckless imprudence, arising from the same act upon which the second charge was based. The Court of Appeals had relied on Estipona. We reversed on the strength of Buan:[38]cralaw Th[e] view of the Court of Appeals was inspired by the ruling of this Court in the pre-war case of People vs. Estipona decided on November 14, 1940. However, in the case of People vs. Buan, 22 SCRA 1383 (March 29, 1968), this Court, speaking thru Justice J. B. L. Reyes, held that Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi offense of criminal negligence under Article 365 of the Revised

Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty, it does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense (criminal negligence) remains one and the same, and can not be split into different crimes and prosecutions. x x x . . . the exoneration of this appellant, Jose Buan, by the Justice of the Peace (now Municipal) Court of Guiguinto, Bulacan, of the charge of slight physical injuries through reckless imprudence, prevents his being prosecuted for serious physical injuries through reckless imprudence in the Court of First Instance of the province, where both charges are derived from the consequences of one and the same vehicular accident, because the second accusation places the appellant in second jeopardy for the same offense.[39] (Emphasis supplied) Thus, for all intents and purposes, Buerano had effectively overruled Estipona. It is noteworthy that the Solicitor General in Buerano, in a reversal of his earlier stance in Silva, joined causes with the accused, a fact which did not escape the Courts attention:chanroblesvirtuallawlibrary Then Solicitor General, now Justice Felix V. Makasiar, in his MANIFESTATION dated December 12, 1969 (page 82 of the Rollo) admits that the Court of Appeals erred in not sustaining petitioners plea of double jeopardy and submits that its affirmatory decision dated January 28, 1969, in Criminal Case No. 05123-CR finding petitioner guilty of damage to property through reckless imprudence should be set aside, without costs. He stressed that if double jeopardy exists where the reckless act resulted into homicide and physical injuries. then the same consequence must perforce follow where the same reckless act caused merely damage to property-not death-and physical injuries. Verily, the value of a human life lost as a result of a vehicular collision cannot be equated with any amount of damages caused to a motors vehicle arising from the same mishap.[40] (Emphasis supplied) Hence, we find merit in petitioners submission that the lower courts erred in refusing to extend in his favor the mantle of protection afforded by the Double Jeopardy Clause. A more fitting jurisprudence could not be tailored to petitioners case than People v. Silva, [41] a Diaz progeny. There, the accused, who was also involved in a vehicular collision, was charged in two separate Informations with Slight Physical Injuries thru Reckless Imprudence and Homicide with Serious Physical Injuries thru Reckless Imprudence. Following his acquittal of the former, the accused sought the quashal of the latter, invoking the Double Jeopardy Clause. The trial court initially denied relief, but, on reconsideration, found merit in the accuseds claim and dismissed the second case. In affirming the trial court, we quoted with approval its analysis of the issue following Diaz and its progeny People v. Belga:[42]cralaw On June 26, 1959, the lower court reconsidered its Order of May 2, 1959 and dismissed the case, holding: [T]he Court believes that the case falls squarely within the doctrine of double jeopardy enunciated in People v. Belga, x x x In the case cited, Ciriaco Belga and Jose Belga were charged in the Justice of the Peace Court of Malilipot, Albay, with the crime of physical injuries through reckless imprudence arising from a collision between the two automobiles driven by them (Crim. Case No. 88).craWithout the aforesaid complaint having been dismissed or otherwise disposed of, two other criminal complaints were filed in the same justice of the peace court, in connection with the same collision one for damage to property through reckless imprudence (Crim. Case No. 95) signed by the owner of one of the vehicles involved in the collision, and another for multiple physical injuries through reckless imprudence (Crim. Case No. 96) signed by the passengers injured in the accident. Both of these two complaints were filed against Jose Belga only. After trial, both defendants were acquitted of the charge against them in Crim. Case No. 88. Following

his acquittal, Jose Belga moved to quash the complaint for multiple physical injuries through reckless imprudence filed against him by the injured passengers, contending that the case was just a duplication of the one filed by the Chief of Police wherein he had just been acquitted. The motion to quash was denied and after trial Jose Belga was convicted, whereupon he appealed to the Court of First Instance of Albay. In the meantime, the case for damage to property through reckless imprudence filed by one of the owners of the vehicles involved in the collision had been remanded to the Court of First Instance of Albay after Jose Belga had waived the second stage of the preliminary investigation. After such remand, the Provincial Fiscal filed in the Court of First Instance two informations against Jose Belga, one for physical injuries through reckless imprudence, and another for damage to property through reckless imprudence. Both cases were dismissed by the Court of First Instance, upon motion of the defendant Jose Belga who alleged double jeopardy in a motion to quash. On appeal by the Prov. Fiscal, the order of dismissal was affirmed by the Supreme Court in the following language: . The question for determination is whether the acquittal of Jose Belga in the case filed by the chief of police constitutes a bar to his subsequent prosecution for multiple physical injuries and damage to property through reckless imprudence. In the case of Peo[ple] v. F. Diaz, G. R. No. L-6518, prom. March 30, 1954, the accused was charged in the municipal court of Pasay City with reckless driving under sec. 52 of the Revised Motor Vehicle Law, for having driven an automobile in a fast and reckless manner ... thereby causing an accident. After the accused had pleaded not guilty the case was dismissed in that court for failure of the Government to prosecute. But some time thereafter the city attorney filed an information in the Court of First Instance of Rizal, charging the same accused with damage to property thru reckless imprudence. The amount of the damage was alleged to be P249.50. Pleading double jeopardy, the accused filed a motion, and on appeal by the Government we affirmed the ruling. Among other things we there said through Mr. Justice Montemayor The next question to determine is the relation between the first offense of violation of the Motor Vehicle Law prosecuted before the Pasay City Municipal Court and the offense of damage to property thru reckless imprudence charged in the Rizal Court of First Instance. One of the tests of double jeopardy is whether or not the second offense charged necessarily includes or is necessarily included in the offense charged in the former complaint or information (Rule 113, Sec. 9).craAnother test is whether the evidence which proves one would prove the other that is to say whether the facts alleged in the first charge if proven, would have been sufficient to support the second charge and vice versa; or whether one crime is an ingredient of the other. x x x x x x The foregoing language of the Supreme Court also disposes of the contention of the prosecuting attorney that the charge for slight physical injuries through reckless imprudence could not have been joined with the charge for homicide with serious physical injuries through reckless imprudence in this case, in view of the provisions of Art. 48 of the Revised Penal Code, as amended. The prosecutions contention might be true. But neither was the prosecution obliged to first prosecute the accused for slight physical injuries through reckless imprudence before pressing the more serious charge of homicide with serious physical injuries through reckless imprudence. Having first prosecuted the defendant for the lesser offense in the Justice of the Peace Court of Meycauayan, Bulacan, which acquitted the defendant, the prosecuting attorney is not now in a position to press in this case the more serious charge of homicide with serious physical injuries through reckless imprudence which arose out of the same alleged reckless imprudence of which the defendant have been previously cleared by the inferior court.[43]cralaw Significantly, the Solicitor General had urged us in Silva to reexamine Belga (and hence, Diaz) for the purpose of delimiting or clarifying its application.[44] We declined the invitation, thus:chanroblesvirtuallawlibrary

The State in its appeal claims that the lower court erred in dismissing the case, on the ground of double jeopardy, upon the basis of the acquittal of the accused in the JP court for Slight Physical Injuries, thru Reckless Imprudence. In the same breath said State, thru the Solicitor General, admits that the facts of the case at bar, fall squarely on the ruling of the Belga case x x x, upon which the order of dismissal of the lower court was anchored. The Solicitor General, however, urges a re-examination of said ruling, upon certain considerations for the purpose of delimiting or clarifying its application. We find, nevertheless, that further elucidation or disquisition on the ruling in the Belga case, the facts of which are analogous or similar to those in the present case, will yield no practical advantage to the government. On one hand, there is nothing which would warrant a delimitation or clarification of the applicability of the Belga case. It was clear. On the other, this Court has reiterated the views expressed in the Belga case, in the identical case of Yap v. Hon. Lutero, etc., L-12669, April 30, 1959.[45] (Emphasis supplied) Article 48 Does not Apply to Acts Penalized Under Article 365 of the Revised Penal Code The confusion bedeviling the question posed in this petition, to which the MeTC succumbed, stems from persistent but awkward attempts to harmonize conceptually incompatible substantive and procedural rules in criminal law, namely, Article 365 defining and penalizing quasi-offenses and Article 48 on complexing of crimes, both under the Revised Penal Code. Article 48 is a procedural device allowing single prosecution of multiple felonies falling under either of two categories: (1) when a single act constitutes two or more grave or less grave felonies (thus excluding from its operation light felonies[46]); and (2) when an offense is a necessary means for committing the other. The legislature crafted this procedural tool to benefit the accused who, in lieu of serving multiple penalties, will only serve the maximum of the penalty for the most serious crime. In contrast, Article 365 is a substantive rule penalizing not an act defined as a felony but the mental attitude x x x behind the act, the dangerous recklessness, lack of care or foresight x x x,[47] a single mental attitude regardless of the resulting consequences. Thus, Article 365 was crafted as one quasicrime resulting in one or more consequences. Ordinarily, these two provisions will operate smoothly. Article 48 works to combine in a single prosecution multiple intentional crimes falling under Titles 1-13, Book II of the Revised Penal Code, when proper; Article 365 governs the prosecution of imprudent acts and their consequences. However, the complexities of human interaction can produce a hybrid quasi-offense not falling under either models that of a single criminal negligence resulting in multiple non-crime damages to persons and property with varying penalties corresponding to light, less grave or grave offenses. The ensuing prosecutorial dilemma is obvious: how should such a quasi-crime be prosecuted? Should Article 48s framework apply to complex the single quasi-offense with its multiple (non-criminal) consequences (excluding those amounting to light offenses which will be tried separately)? Or should the prosecution proceed under a single charge, collectively alleging all the consequences of the single quasi-crime, to be penalized separately following the scheme of penalties under Article 365? Jurisprudence adopts both approaches. Thus, one line of rulings (none of which involved the issue of double jeopardy) applied Article 48 by complexing one quasi-crime with its multiple consequences[48] unless one consequence amounts to a light felony, in which case charges were split by grouping, on the one hand, resulting acts amounting to grave or less grave felonies and filing the charge with the second level courts and, on the other hand, resulting acts amounting to light felonies and filing the charge with the first level courts.[49] Expectedly, this is the approach the MeTC impliedly sanctioned (and respondent Ponce invokes), even though under Republic Act No. 7691,[50] the MeTC has now exclusive original jurisdiction to impose the most serious penalty under Article 365 which is prision correccional in its medium period. Under this approach, the issue of double jeopardy will not arise if the complexing of acts penalized under Article 365 involves only resulting acts penalized as grave or less grave felonies because there will

be a single prosecution of all the resulting acts. The issue of double jeopardy arises if one of the resulting acts is penalized as a light offense and the other acts are penalized as grave or less grave offenses, in which case Article 48 is not deemed to apply and the act penalized as a light offense is tried separately from the resulting acts penalized as grave or less grave offenses. The second jurisprudential path nixes Article 48 and sanctions a single prosecution of all the effects of the quasi-crime collectively alleged in one charge, regardless of their number or severity,[51] penalizing each consequence separately. Thus, in Angeles v. Jose,[52] we interpreted paragraph three of Article 365, in relation to a charge alleging reckless imprudence resulting in damage to property and less serious physical injuries, as follows:chanroblesvirtuallawlibrary [T]he third paragraph of said article, x x x reads as follows:chanroblesvirtuallawlibrary When the execution of the act covered by this article shall have only resulted in damage to the property of another, the offender shall be punished by a fine ranging from an amount equal to the value of said damage to three times such value, but which shall in no case be less than 25 pesos. The above-quoted provision simply means that if there is only damage to property the amount fixed therein shall be imposed, but if there are also physical injuries there should be an additional penalty for the latter. The information cannot be split into two; one for the physical injuries, and another for the damage to property, x x x.[53] (Emphasis supplied) By additional penalty, the Court meant, logically, the penalty scheme under Article 365. Evidently, these approaches, while parallel, are irreconcilable. Coherence in this field demands choosing one framework over the other. Either (1) we allow the complexing of a single quasi-crime by breaking its resulting acts into separate offenses (except for light felonies), thus re-conceptualize a quasi-crime, abandon its present framing under Article 365, discard its conception under the Quizon and Diaz lines of cases, and treat the multiple consequences of a quasi-crime as separate intentional felonies defined under Titles 1-13, Book II under the penal code; or (2) we forbid the application of Article 48 in the prosecution and sentencing of quasi-crimes, require single prosecution of all the resulting acts regardless of their number and severity, separately penalize each as provided in Article 365, and thus maintain the distinct concept of quasi-crimes as crafted under Article 365, articulated in Quizon and applied to double jeopardy adjudication in the Diaz line of cases. A becoming regard of this Courts place in our scheme of government denying it the power to make laws constrains us to keep inviolate the conceptual distinction between quasi-crimes and intentional felonies under our penal code. Article 48 is incongruent to the notion of quasi-crimes under Article 365. It is conceptually impossible for a quasi-offense to stand for (1) a single act constituting two or more grave or less grave felonies; or (2) an offense which is a necessary means for committing another. This is why, way back in 1968 in Buan, we rejected the Solicitor Generals argument that double jeopardy does not bar a second prosecution for slight physical injuries through reckless imprudence allegedly because the charge for that offense could not be joined with the other charge for serious physical injuries through reckless imprudence following Article 48 of the Revised Penal Code:chanroblesvirtuallawlibrary The Solicitor General stresses in his brief that the charge for slight physical injuries through reckless imprudence could not be joined with the accusation for serious physical injuries through reckless imprudence, because Article 48 of the Revised Penal Code allows only the complexing of grave or less grave felonies. This same argument was considered and rejected by this Court in the case of People vs. [Silva] x x x:chanroblesvirtuallawlibrary [T]he prosecutions contention might be true. But neither was the prosecution obliged to first prosecute the accused for slight physical injuries through reckless imprudence before pressing the more serious charge of homicide with serious physical injuries through reckless imprudence. Having first prosecuted the defendant for the lesser offense in the Justice of the Peace Court of Meycauayan, Bulacan, which acquitted the defendant, the prosecuting attorney is not now in a position to press in this case the more serious charge of homicide with serious physical injuries through reckless imprudence which arose out of

the same alleged reckless imprudence of which the defendant has been previously cleared by the inferior court.chanroblesvirtualawlibrary [W]e must perforce rule that the exoneration of this appellant x x x by the Justice of the Peace x x x of the charge of slight physical injuries through reckless imprudence, prevents his being prosecuted for serious physical injuries through reckless imprudence in the Court of First Instance of the province, where both charges are derived from the consequences of one and the same vehicular accident, because the second accusation places the appellant in second jeopardy for the same offense.[54] (Emphasis supplied) Indeed, this is a constitutionally compelled choice. By prohibiting the splitting of charges under Article 365, irrespective of the number and severity of the resulting acts, rampant occasions of constitutionally impermissible second prosecutions are avoided, not to mention that scarce state resources are conserved and diverted to proper use. Hence, we hold that prosecutions under Article 365 should proceed from a single charge regardless of the number or severity of the consequences. In imposing penalties, the judge will do no more than apply the penalties under Article 365 for each consequence alleged and proven. In short, there shall be no splitting of charges under Article 365, and only one information shall be filed in the same first level court.[55]cralaw Our ruling today secures for the accused facing an Article 365 charge a stronger and simpler protection of their constitutional right under the Double Jeopardy Clause. True, they are thereby denied the beneficent effect of the favorable sentencing formula under Article 48, but any disadvantage thus caused is more than compensated by the certainty of non-prosecution for quasi-crime effects qualifying as light offenses (or, as here, for the more serious consequence prosecuted belatedly).craIf it is so minded, Congress can re-craft Article 365 by extending to quasi-crimes the sentencing formula of Article 48 so that only the most severe penalty shall be imposed under a single prosecution of all resulting acts, whether penalized as grave, less grave or light offenses. This will still keep intact the distinct concept of quasi-offenses. Meanwhile, the lenient schedule of penalties under Article 365, befitting crimes occupying a lower rung of culpability, should cushion the effect of this ruling. WHEREFORE, we GRANT the petition. We REVERSE the Orders dated 2 February 2006 and 2 May 2006 of the Regional Trial Court of Pasig City, Branch 157. We DISMISS the Information in Criminal Case No. 82366 against petitioner Jason Ivler y Aguilar pending with the Metropolitan Trial Court of Pasig City, Branch 71 on the ground of double jeopardy. Let a copy of this ruling be served on the President of the Senate and the Speaker of the House of Representatives. SO ORDERED.

T H I R D

D I V I S I O N

ANITA ESTEBAN, Petitioner,

G.R. No. 135012

Present: - versus PANGANIBAN, J., Chairman, SANDOVAL-GUTIERREZ, CORONA, and * CARPIO MORALES, JJ. HON. REYNALDO A. ALHAMBRA, in his capacity as Presiding Judge, Regional Trial Court, Branch 39, San Jose City, and GERARDO ESTEBAN, Respondents.

Promulgated:

September 7, 2004 x---------------------------------------------------------------------------------------------x

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

In this present petition for certiorari,

[1]

Anita Esteban seeks to annul the Orders dated July 9, 1998

and August 20, 1998 issued by Judge Reynaldo A. Alhambra, presiding judge of the Regional Trial Court, Branch 39, San Jose City, in Criminal Cases Nos. SJC-88(95), SJC-27(97), SJC-30(97) and SJC-

31(97). The Orders denied petitioners application for cancellation of the cash bail posted in each case. Gerardo Esteban is the accused in these criminal cases. His sister-in-law, Anita Esteban, petitioner herein, posted cash bail of P20,000.00 in each case for his temporary liberty. While out on bail and during the pendency of the four criminal cases, Gerardo was again charged with another crime for which he was arrested and detained. Fed up with Gerardos actuation, petitioner refused to post another bail.
[2]

Instead, on June 18,

1998, she filed with the trial court an application for the cancellation of the cash bonds she posted in the four criminal cases.
[3]

She alleged therein that she is terminating the cash bail by surrendering the
[4]

accused who is now in jail as certified to by the City Jail Warden. In an Order dated July 9, 1998,
[5]

respondent judge denied petitioners application, thus:

xxx In these cases, accused was allowed enjoyment of his provisional liberty after money was deposited with the Clerk of Court as cash bail. Applicant-movant (now petitioner) did not voluntarily surrender the accused. Instead, the accused was subsequently charged with another crime for which he was arrested and detained. His arrest and detention for another criminal case does not affect the character of the cash bail posted by applicant-movant in Criminal Cases Nos. SJC-88(95), SLC-27(97), SJC30(97) and SJC-31(97) as deposited pending the trial of these cases. Money deposited as bail even though made by a third person is considered as the accuseds deposit where there is no relationship of principal and surety (State vs. Wilson, 65 Ohio L-Abs, 422, 115 NE 2d 193). Hence, the money so deposited takes the nature of property in custodia legis and is to be applied for payment of fine and costs. And such application will be made regardless of the fact that the money was deposited by a third person. WHEREFORE, in view of the foregoing, the application for cancellation of bail bonds is hereby DENIED. SO ORDERED.

Petitioner filed a motion for reconsideration 1998.

[7]

[6]

but was denied in an Order dated August 20,

Hence, the instant petition assailing the twin Orders as having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Petitioner states that she is constrained to bring this matter directly to this Court as the issue is one of first impression.
[8]

Petitioner submits that by surrendering the accused who is now in jail, her application for cancellation of bail in the four criminal cases is allowed under Section 19, now Section 22, of the Revised Rules of Criminal Procedure, as amended, which provides: Sec. 22. Cancellation of bail. Upon application of the bondsmen, with due notice to the prosecutor, the bail may be cancelled upon surrender of the accused or proof of his death. The bail shall be deemed automatically cancelled upon acquittal of the accused, dismissal of the case, or execution of the judgment of conviction. In all instances, the cancellation shall be without prejudice to any liability on the bail. (Underscoring supplied) Rule 114

Petitioners submission is misplaced.

The first paragraph of Section 22 contemplates of a situation where, among others, the surety or bondsmansurrenders the accused to the court that ordered the latters arrest. Thereafter, the court, upon application by the surety or bondsman, cancels the bail bond. We hold that the cash bail cannot be cancelled. Petitioner did not surrender the accused, charged in the four criminal cases, to the trial court. The accused was arrested and detained because he was charged in a subsequent criminal case. Moreover, the bail bond posted for the accused was in the form of cash deposit which, as mandated by Section 14 (formerly Section 11) of the same Rule 114, shall be applied to the payment of fine and costs, and the excess, if any, shall be returned to the accused or to any person who made the deposit. Section 14 provides: Section 14. Deposit of cash as bail. The accused or any person acting in his behalf may deposit in cash with the nearest collector of internal revenue or provincial, city or municipal treasurer the amount of bail fixed by the court, or recommended by the prosecutor who investigated or filed the case. Upon submission of a proper certificate of deposit and a written undertaking showing compliance with the requirements of Section 2 of this Rule, the accused shall be discharged from custody. The money deposited shall be considered as bail and applied to the payment of fine and costs, while the excess, if any, shall be returned to the accused or to whoever made the deposit. (Underscoring supplied)

The Rule thus treats a cash bail differently from other bail bonds. A cash bond may be posted either by the accused or by any person in his behalf. However, as far as the State is concerned, the money deposited is regarded as the money of the accused. Consequently, it can be applied in payment of any fine and costs that may be imposed by the court. This was the ruling of this Court as early as 1928 in Esler vs. Ledesma.
[9]

Therein we declared that when a cash bail is allowed, the two parties to Unlike other bail

the transaction are the State and the defendant.

bonds, the money may then be used in the payment of that in which the State is concerned the fine and costs. The right of the government is in the nature of a lien on the money deposited. We further held in the same case that: x x x. Similar cases have frequently gained the attention of the courts in the United States in jurisdictions where statutes permit a deposit of money to be made in lieu of bail in criminal cases. The decisions are unanimous in holding that a fine imposed on the accused may be satisfied from the cash deposit; and this is true although the money has been furnished by a third person. This is so because the law contemplates that the deposit shall be made by the defendant. The money, x x x, must accordingly be treated as the property of the accused. As a result, the money could be applied in payment of any fine imposed and of the costs (People vs. Laidlaw [1886], Ct. of App. Of New York, 7 N. E., 910, a case frequently cited approvingly in other jurisdictions; State of Iowa vs. Owens [1900], 112 Iowa, 403;Mundell vs. Wells, supra.). But while as between the State and the accused the money deposited by a third person for the release of the accused is regarded as the money of the accused, it is not so regarded for any other purpose. As between the accused and a third person, the residue of the cash bail is not subject to the claim of a creditor of property obtain (Wright & Taylor vs. Dougherty [1908], 138 Iowa, [10] 195; People vs. Gould [1902], 78 N. Y. Sup., 279; Mundell vs. Wells, supra.).

In fine, we fail to discern any taint of grave abuse of discretion on the part of respondent judge in denying petitioners application for cancellation of the accuseds cash bail. WHEREFORE, the present petition is DISMISSED. SO ORDERED.

[G.R. No. 148468. January 28, 2003]

ATTY. EDWARD SERAPIO, petitioner, vs. SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE PHILIPPINES, and PHILIPPINE NATIONAL POLICE DIRECTOR-GENERAL LEANDRO MENDOZA,respondents.

[G.R. No. 148769. January 28, 2003]

EDWARD S. SERAPIO, petitioner, vs. HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

[G.R. No. 149116. January 28, 2003]

EDWARD S. SERAPIO, petitioner, vs. HONORABLE SANDIGANBAYAN (THIRD DIVISION) and PEOPLE OF THE PHILIPPINES, respondents. DECISION CALLEJO, SR., J.: Before the Court are two petitions for certiorari filed by petitioner Edward Serapio, assailing the resolutions of the Third Division of the Sandiganbayan denying his petition for bail, motion for a reinvestigation and motion to quash, and a petition for habeas corpus, all in relation to Criminal Case No. 26558 for plunder wherein petitioner is one of the accused together with former President Joseph E. Estrada, Jose Jinggoy P. Estrada and several others. The records show that petitioner was a member of the Board of Trustees and the Legal Counsel of the Erap Muslim Youth Foundation, a non-stock, non-profit foundation established in February 2000 ostensibly for the purpose of providing educational opportunities for the poor and underprivileged but deserving Muslim youth and students, and support to research and advance studies of young Muslim educators and scientists. Sometime in April 2000, petitioner, as trustee of the Foundation, received on its behalf a donation in the amount of Two Hundred Million Pesos (P200 Million) from Ilocos Sur Governor Luis Chavit Singson through the latters assistant Mrs. Yolanda Ricaforte. Petitioner received the donation and turned over the said amount to the Foundations treasurer who later deposited it in the Foundations account with the Equitable PCI Bank. In the latter part of the year 2000, Gov. Singson publicly accused then President Joseph E. Estrada and his cohorts of engaging in several illegal activities, including its operation on the illegal numbers game known as jueteng. This triggered the filing with the Office of the Ombudsman of several criminal complaints against Joseph Estrada, Jinggoy Estrada and petitioner, together with other persons. Among such complaints were: Volunteers Against Crime and Corruption, versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim. Case No. 0-00-1754; Graft Free Philippines Foundation, Inc., versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim. Case No. 0-00-1755; and Leonardo De Vera, Romeo T. Capulong and Dennis B. Funa, versus Joseph Estrada, Yolanda

Ricaforte, Edward Serapio, Raul De Guzman, Danilo Reyes and Mila Reforma, docketed as OMB Crim. Case No. 0-00-1757. Subsequently, petitioner filed his Counter-Affidavit dated February 21, 2001. The other respondents likewise filed their respective counter-affidavits. The Office of the Ombudsman conducted a preliminary investigation of the complaints and on April 4, 2001, issued a joint resolution recommending, inter alia, that Joseph Estrada, petitioner and several others be charged with the criminal offense of plunder. On April 4, 2001, the Ombudsman filed with the Sandiganbayan several Informations against former President Estrada, who earlier had resigned from his post as President of the Republic of the Philippines. One of these Informations, docketed as Criminal Case No. 26558, charged Joseph Estrada with plunder. On April 18, 2001, the Ombudsman filed an amended Information in said case charging Estrada and several co-accused, including petitioner, with said crime. No bail was recommended for the provisional release of all the accused, including petitioner. The case was raffled to a special division which was subsequently created by the Supreme Court. The amended Information reads: That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER, BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION OR INFLUENCE, did then and there wilfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, illgotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows: (a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE ATONG ANG, Jose Jinggoy Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING; by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit public fund in the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION PESOS [P200,000,000.00]) tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No. 7171, BY HIMSELF AND/OR in CONNIVANCE with co-accused Charlie Atong Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND JANE DOES; by directing, ordering and compelling FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE, 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDERED SEVEN PESOS AND FIFTY CENTAVOS [P1,102,965,607.50] AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00], RESPECTIVELY, OR A TOTAL OR MORE OR LESS ONE BILLION

(b)

(c)

EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS [189,700,000.00] MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME JOSE VELARDE; (d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME JOSE VELARDE AT THE EQUITABLE-PCI BANK.
[1]

CONTRARY TO LAW.

On April 5, 2001, petitioner obtained a copy of the Ombudsmans Joint Resolution finding probable cause against him for plunder. The next day, April 6, 2001, he filed with the Office of the Ombudsman a [2] Motion for Reconsideration and/or Reinvestigation. Petitioner likewise filed on said date, this time with the Sandiganbayan, an Urgent Omnibus Motion: (a) To Hold in Abeyance the Issuance of Warrant of Arrest and Further Proceedings; (b) To Conduct a Determination of Probable Cause; (c) For Leave to File Accuseds Motion for Reconsideration and/or Reinvestigation; and (d) To Direct the Ombudsman to [3] Conduct a Reinvestigation of the Charges against accused Edward Serapio. On April 10, 2001, the Ombudsman issued an order denying petitioners motion for reconsideration and/or reinvestigation on the ground of lack of jurisdiction since the amended Information charging [4] petitioner with plunder had already been filed with the Sandiganbayan. In a parallel development, the Sandiganbayan issued a Resolution on April 25, 2001 in Criminal Case No. 26558 finding probable cause to justify the issuance of warrants of arrest for the accused, including petitioner. Accordingly, the Sandiganbayan issued an Order on the same date for the arrest of [5] petitioner. When apprised of said order, petitioner voluntarily surrendered at 9:45 p.m. on the same day to Philippine National Police Chief Gen. Leandro Mendoza. Petitioner has since been detained at Camp Crame for said charge. The Sandiganbayan set the arraignment of the accused, including petitioner, in Criminal Case No. 26558 on June 27, 2001. In the meantime, on April 27, 2001, petitioner filed with the Sandiganbayan an [6] Urgent Petition for Bail which was set for hearing on May 4, 2001. For his part, petitioners co-accused Jose Jinggoy Estrada filed on April 20, 2001 a Very Urgent Omnibus Motion alleging that he was entitled to bail as a matter of right. During the hearing on May 4, 2001 on petitioners Urgent Petition for Bail, the prosecution moved for the resetting of the arraignment of the accused earlier than the June 27, 2001 schedule. However, the Sandiganbayan denied the motion of the prosecution and issued an order declaring that the petition for bail can and should be heard before petitioners arraignment on June 27, 2001 and even before the other accused in Criminal Case No. 26558 filed their respective petitions for bail. Accordingly, the Sandiganbayan set the hearing for the reception of evidence on petitioners petition for bail on May 21 to 25, 2001. On May 17, 2001, four days before the hearing on petitioners petition for bail, the Ombudsman filed an urgent motion for early arraignment of Joseph Estrada, Jinggoy Estrada and petitioner and a motion for joint bail hearings of Joseph Estrada, Jinggoy Estrada and petitioner. The following day, petitioner filed a manifestation questioning the propriety of including Joseph Estrada and Jinggoy Estrada in the hearing on his (petitioners) petition for bail.

The Sandiganbayan issued a Resolution on May 18, 2001 resetting the hearings on petitioners petition for bail to June 18 to 28, 2001 to enable the court to resolve the prosecutions pending motions as well as petitioners motion that his petition for bail be heard as early as possible, which motion the prosecution opposed. On May 31, 2001, the Sandiganbayan issued a Resolution denying petitioners April 6, 2001 Urgent Omnibus Motion. The court ruled that the issues posed by petitioner had already been resolved in its April 25, 2001 Resolution finding probable cause to hold petitioner and his co-accused for [7] trial. Petitioner filed a motion for reconsideration of the said May 31, 2001 Resolution. On June 1, 2001, the Sandiganbayan issued a resolution requiring the attendance of petitioner as well as all the other accused in Criminal Case No. 26558 during the hearings on the petitions for bail under pain of waiver of cross-examination. The Sandiganbayan, citing its inherent powers to proceed with the trial of the case in the manner it determines best conducive to orderly proceedings and speedy termination of the case, directed the other accused to participate in the said bail hearing considering that under Section 8, Rule 114 of the Revised Rules of Court, whatever evidence is adduced during the bail [8] hearing shall be considered automatically reproduced at the trial. However, instead of proceeding with the bail hearing set by it on June 18, 2001, the Sandiganbayan issued an Order on June 15, 2001 canceling the said bail hearing due to pending incidents yet to be [9] resolved and reset anew the hearing to June 26, 2001. On the eve of said hearing, the Sandiganbayan issued a resolution denying petitioners motion for reconsideration of its May 31, 2001 Resolution. The bail hearing on June 26, 2001 did not again proceed because on said date petitioner filed with the Sandiganbayan a motion to quash the amended Information on the grounds that as against him, the amended Information does not allege a combination or series of overt or criminal acts constitutive of plunder; as against him, the amended Information does not allege a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy; the money alleged in paragraph (a) of the amended Information to have been illegally received or collected does not constitute ill-gotten wealth as defined in Section 1(d) of Republic Act No. 7080; and the amended Information [10] charges him of bribery and illegal gambling. By way of riposte, the prosecution objected to the holding of bail hearing until petitioner agreed to withdraw his motion to quash. The prosecution contended that petitioners motion to quash the amended Information was antithetical to his petition for bail. The Sandiganbayan reset the arraignment of accused and the hearing on the petition for bail of petitioner in Criminal Case No. 26558 for July 10, 2001 to enable it to resolve the pending incidents and the motion to quash of petitioner. However, even before the Sandiganbayan could resolve the pending motions of petitioner and the prosecution, petitioner filed with this Court on June 29, 2001 a Petition for Habeas Corpus and Certiorari, docketed as G.R. No. 148468, praying that the Court declare void the questioned orders, resolutions and actions of the Sandiganbayan on his claim that he was thereby effectively denied of his right to due process. Petitioner likewise prayed for the issuance of a writ of habeas corpus; that the People be declared to have waived their right to present evidence in opposition to his petition for bail; and, premised on the failure of the People to adduce strong evidence of petitioners [11] guilt of plunder, that he be granted provisional liberty on bail after due proceedings. Meanwhile, on June 28, 2001, Jose Jinggoy Estrada filed with the Sandiganbayan a motion praying that said court resolve his motion to fix his bail. On July 9, 2001, the Sandiganbayan issued a Resolution denying petitioners motion to quash the [12] amended Information. Petitioner, through counsel, received on said date a copy of said resolution. The motion to fix bail filed by Jose Jinggoy Estrada was also resolved by the Sandiganbayan. On July 10, 2001, just before his arraignment in Criminal Case No. 26558, petitioner manifested to the Sandiganbayan that he was going to file a motion for reconsideration of the July 9, 2001 Resolution denying his motion to quash and for the deferment of his arraignment. The Sandiganbayan, however, declared that there was no provision in the Rules of Court or in the Sandiganbayans rules granting the right to petitioner to file a motion for the reconsideration of an interlocutory order issued by it and ordered petitioner to orally argue his motion for reconsideration. When petitioner refused, the Sandiganbayan

proceeded with his arraignment. Petitioner refused to plead, impelling the court to enter a plea of not guilty for him. On July 20, 2001, petitioner filed with the Court a Petition for Certiorari, docketed as G.R. No. 148769, alleging that the Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its July 9, 2001 Resolution denying his motion to quash, notwithstanding the fact that material inculpatory allegations of the amended Information against him do not constitute the crime of plunder; and that he is charged, under the said amended Information, for more than one offense. Jose Jinggoy Estrada likewise filed petition for certiorari with the Court docketed as G.R. No. 148965 for the nullification of a resolution of the Sandiganbayan denying his motion to fix bail. On August 9, 2001, petitioner filed with the Court another Petition for Certiorari, docketed as G.R. No. 149116, assailing the Sandiganbayans Resolution dated 31 May 2001 which denied his April 6, 2001 Urgent Omnibus Motion and its June 25, 2001 Resolution denying his motion for reconsideration of its May 31, 2001 Resolution.

Re: G.R. No. 148769 Petitioner avers that: THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION, IN DENYING PETITIONER SERAPIOS MOTION TO QUASHNOTWITHSTANDING THAT I THE FACTS ALLEGED IN THE AMENDED INFORMATION AS AGAINST PETITIONER SERAPIO DO NOT CONSTITUTE THE CRIME OF PLUNDER. A. The Amended Information, as against petitioner Serapio, does not allege a combination or series of overt or criminal acts constitutive of plunder. B. The Amended Information, as against petitioner Serapio, does not allege a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy. C. The money described in paragraph (a) of the Amended Information and alleged to have been illegally received or collected does not constitute ill-gotten wealth as defined in Section 1(d), Republic Act No. 7080, as amended. II THE AMENDED INFORMATION CHARGES MORE THAN ONE OFFENSE.
[13]

Petitioner asserts that, on the face of the amended Information, he is charged with plunder only in paragraph (a) which reads: (a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE ATONG ANG, Jose Jinggoy Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION [14] OR PROTECTION OF ILLEGAL GAMBLING;

Petitioner asserts that there is no allegation in paragraph (a) of the amended Information of a combination or series of overt or criminal acts constituting plunder as described in Section 1(d) of R.A. 7080 as amended. Neither does the amended Information allege a pattern of criminal acts. He avers that his single act of toleration or protection of illegal gambling impelled by a single criminal resolution does not constitute the requisite combination or series of acts for plunder. He further claims that the consideration consisting of gifts, percentages or kickbacks in furtherance of said resolution turned over to and received by former President Joseph E. Estrada on several occasions does not cure the defect in the amended information. Petitioner insists that on the face of the amended Information he is charged only with bribery or illegal gambling and not of plunder. Petitioner argues that the P540 million which forms part of the P4,097,804,173.17 amassed by former President Joseph E. Estrada in confabulation with his co-accused is not ill-gotten wealth as defined in Section 1(d) of R.A. 7080. We do not agree with petitioner. Section 6, Rule 110 of the Revised Rules of Criminal Procedure provides that: Sec. 6. Sufficiency of complaint or information. A complaint or information is sufficient if it states the name of the accused, the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. When the offense was committed by more than one person, all of them shall be included in the [15] complaint or information. The acts or omissions complained or must be alleged in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged and enable the court to know the proper judgment. The Information must allege clearly and accurately the elements of the crime charged. What facts and circumstances are necessary to be included therein must be determined by reference to the definition and elements of the specific crimes. The purpose of the requirement of alleging all the elements of the crime in the Information is to inform an accused of the nature of the [16] accusation against him so as to enable him to suitably prepare for his defense. Another purpose is to enable accused, if found guilty, to plead his conviction in a subsequent prosecution for the same [17] offense. The use of derivatives or synonyms or allegations of basic facts constituting the offense [18] charged is sufficient. In this case, the amended Information specifically alleges that all the accused, including petitioner, connived and conspired with former President Joseph E. Estrada to commit plunder through any or a combination or a series of overt or criminal acts or similar schemes or means. And in paragraph (a) of the amended Information, petitioner and his co-accused are charged with receiving or collecting, directly or indirectly, on several instances money in the aggregate amount of P545,000,000.00. In Jose Jinggoy [19] Estrada vs. Sandiganbayan (Third Division), et al., we held that the word series is synonymous with the clause on several instances; it refers to a repetition of the same predicate act in any of the items in Section 1(d) of the law. We further held that the word combination contemplates the commission of at least any two different predicate acts in any of the said items. We ruled that plainly, subparagraph (a) of the amended information charges accused therein, including petitioner, with plunder committed by a series of the same predicate act under Section 1(d)(2) of the law and that: x x x Sub-paragraph (a) alleged the predicate act of receiving, on several instances, money from illegal gambling, in consideration of toleration or protection of illegal gambling, and expressly names petitioner as one of those who conspired with former President Estrada in committing the offense. This predicate act corresponds with the offense described in item [2] of the enumeration in Section 1(d) of R.A. No. [20] 7080. x x x. It is not necessary to allege in the amended Information a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy because as Section 3 of R.A. 7080 specifically provides, the

same is evidentiary and the general rule is that matters of evidence need not be alleged in the [21] Information. The Court also ruled in Jose Jinggoy Estrada vs. Sandiganbayan that the aggregate amount of P4,097,804,173.17 inclusive of the P545 million alleged in paragraph (a) of the amended information is ill-gotten wealth as contemplated in Section 1, paragraph 1(d) of Republic Act 7080, as amended, and that all the accused in paragraph (a) to (d) of the amended information conspired and confederated with former President Estrada to enable the latter to amass, accumulate or acquire ill-gotten wealth in the aggregate amount of P4,097,804,173.17. Under the amended Information, all the accused, including petitioner, are charged of having conspired and confabulated together in committing plunder. When two or more persons conspire to commit a crime, each is responsible for all the acts of others. In contemplation of law, the act of the [23] conspirator is the act of each of them. Conspirators are one man, they breathe one breath, they speak one voice, they wield one arm and the law says that the acts, words and declarations of each, while in the [24] pursuit of the common design, are the acts, words and declarations of all. Petitioner asserts that he is charged under the amended Information of bribery and illegal gambling and others. The Sandiganbayan, for its part, held that petitioner is not charged with the predicate acts of bribery and illegal gambling but is charged only with one crime that of plunder: THE ISSUE OF WHETHER OR NOT THE INFORMATION CHARGES MORE THAN ONE OFFENSE According to the accused Estradas and Edward Serapio the information charges more than one offense, namely, bribery (Article 210 of the Revised Penal Code), malversation of public funds or property (Article 217, Revised Penal Code) and violations of Sec. 3(e) of Republic Act (RA No. 3019) and Section 7(d) of RA 6713. This contention is patently unmeritorious. The acts alleged in the information are not charged as separate offenses but as predicate acts of the crime of plunder. It should be stressed that the Anti-Plunder law specifically Section 1(d) thereof does not make any express reference to any specific provision of laws, other than R.A. No. 7080, as amended, which coincidentally may penalize as a separate crime any of the overt or criminal acts enumerated therein. The said acts which form part of the combination or series of act are described in their generic sense. Thus, aside from malversation of public funds, the law also uses the generic terms misappropriation, conversion or misuse of said fund. The fact that the acts involved may likewise be penalized under other laws is incidental. The said acts are mentioned only as predicate acts of the crime of plunder and the allegations relative thereto are not to be taken or to be understood as allegations charging separate criminal offenses punished under the Revised Penal Code, the Anti-Graft and Corrupt [25] Practices Act and Code of Conduct and Ethical Standards for Public Officials and Employees. This Court agrees with the Sandiganbayan. It is clear on the face of the amended Information that petitioner and his co-accused are charged only with one crime of plunder and not with the predicate acts or crimes of plunder. It bears stressing that the predicate acts merely constitute acts of plunder and are not crimes separate and independent of the crime of plunder. Resultantly then, the petition is dismissed.
[22]

Re: G.R. No. 149116 Petitioner assails the May 31, 2001 Joint Resolution of the Sandiganbayan denying his April 4, 2001 Urgent Omnibus Motion contending that:

GROUNDS FOR THE PETITION THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SUMMARILY DENYING PETITIONER SERAPIOS URGENT OMNIBUS MOTION AND MOTION FOR RECONSIDERATION (RE: RESOLUTION DATED 31 MAY 2001), NOTWITHSTANDING THAT THE OMBUDSMAN HAD TOTALLY DISREGARDED EXCULPATORY EVIDENCE AND COMMITTED GRAVE AND MANIFEST ERRORS OF LAW SERIOUSLY PREJUDICIAL TO THE RIGHTS AND INTERESTS OF PETITIONER SERAPIO, AND THERE IS NO PROBABLE CAUSE TO SUPPORT AN INDICTMENT FOR [26] PLUNDER AS AGAINST PETITIONER SERAPIO. Petitioner claims that the Sandiganbayan committed grave abuse of discretion in denying his omnibus motion to hold in abeyance the issuance of a warrant for his arrest as well as the proceedings in Criminal Case No. 26558; to conduct a determination of probable cause; and to direct the Ombudsman to conduct a reinvestigation of the charges him. Petitioner asseverates that the Ombudsman had totally disregarded exculpatory evidence and committed grave abuse of discretion in charging him with plunder. He further argues that there exists no probable cause to support an indictment for plunder as [27] against him. Petitioner points out that the joint resolution of the Ombudsman does not even mention him in [28] relation to the collection and receipt of jueteng money which started in 1998 and that the Ombudsman inexplicably arrived at the conclusion that the Erap Muslim Youth Foundation was a money laundering front organization put up by Joseph Estrada, assisted by petitioner, even though the latter presented [29] evidence that said Foundation is a bona fide and legitimate private foundation. More importantly, he claims, said joint resolution does not indicate that he knew that the P200 million he received for the [30] Foundation came from jueteng. Petitioner insists that he cannot be charged with plunder since: (1) the P200 million he received does [31] not constitute ill-gotten wealth as defined in Section 1(d) of R.A. No. 7080; (2) there is no evidence [32] linking him to the collection and receipt of juetengmoney; (3) there was no showing that petitioner participated in a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, or that his act of receiving the P200 million constitutes an overt [33] criminal act of plunder. Petitioner argues further that his motion for reinvestigation is premised on the absolute lack of [34] evidence to support a finding of probable cause for plunder as against him, and hence he should be [35] spared from the inconvenience, burden and expense of a public trial. Petitioner also avers that the discretion of government prosecutors is not beyond judicial scrutiny. He asserts that while this Court does not ordinarily look into the existence of probable cause to charge a person for an offense in a given case, it may do so in exceptional circumstances, which are present in this case: (1) to afford adequate protection to the constitutional rights of the accused; (2) for the orderly administration of justice or to avoid oppression; (3) when the acts of the officer are without or in excess of authority; and (4) where the charges are manifestly false and motivated by the lust for [36] vengeance. Petitioner claims that he raised proper grounds for a reinvestigation by asserting that in issuing the questioned joint resolution, the Ombudsman disregarded evidence exculpating petitioner from the charge of plunder and committed errors of law or irregularities which have been prejudicial to his [37] interest. He also states that during the joint preliminary investigations for the various charges against Joseph Estrada and his associates, of which the plunder charge was only one of the eight charges against Estrada et al., he was not furnished with copies of the other complaints nor given the opportunity to refute the evidence presented in relation to the other seven cases, even though the evidence [38] presented therein were also used against him, although he was only charged in the plunder case. The People maintain that the Sandiganbayan committed no grave abuse of discretion in denying petitioners omnibus motion. They assert that since the Ombudsman found probable cause to charge petitioner with the crime of plunder, the Sandiganbayan is bound to assume jurisdiction over the case and to proceed to try the same. They further argue that a finding of probable cause is merely preliminary and

prefatory of the eventual determination of guilt or innocence of the accused, and that petitioner still has the chance to interpose his defenses in a full blown trial where his guilt or innocence may finally be [39] determined. The People also point out that the Sandiganbayan did not commit grave abuse of discretion in denying petitioners omnibus motion asking for, among others, a reinvestigation by the Ombudsman, because his motion for reconsideration of the Ombudsmans joint resolution did not raise the grounds of either newly discovered evidence, or errors of law or irregularities, which under Republic Act No. 6770 are [40] the only grounds upon which a motion for reconsideration may be filed. The People likewise insist that there exists probable cause to charge petitioner with plunder as a co[41] conspirator of Joseph Estrada. This Court does not agree with petitioner. Case law has it that the Court does not interfere with the Ombudsmans discretion in the conduct of [42] preliminary investigations. Thus, in Raro vs. Sandiganbayan , the Court ruled: x x x. In the performance of his task to determine probable cause, the Ombudsmans discretion is paramount. Thus, in Camanag vs. Guerrero, this Court said: x x x. (S)uffice it to state that this Court has adopted a policy of non-interference in the conduct of preliminary investigations, and leaves to the investigating prosecutor sufficient latitude of discretion in the exercise of determination of what constitutes sufficient evidence as will establish probable cause for filing of information against the supposed offender. In Cruz, Jr. vs. People,
[43]

the Court ruled thus:

Furthermore, the Ombudsmans findings are essentially factual in nature. Accordingly, in assailing said findings on the contention that the Ombudsman committed a grave abuse of discretion in holding that petitioner is liable for estafa through falsification of public documents, petitioner is clearly raising questions of fact here. His arguments are anchored on the propriety or error in the Ombudsmans appreciation of facts. Petitioner cannot be unaware that the Supreme Court is not a trier of facts, more so in the consideration of the extraordinary writ of certiorari where neither question of fact nor even of law are entertained, but only questions of lack or excess of jurisdiction or grave abuse of discretion. Insofar as the third issue is concerned, we find that no grave abuse of discretion has been committed by respondents which would warrant the granting of the writ of certiorari. Petitioner is burdened to allege and establish that the Sandiganbayan and the Ombudsman for that matter committed grave abuse of discretion in issuing their resolution and joint resolution, respectively. Petitioner failed to discharge his burden. Indeed, the Court finds no grave abuse of discretion on the part of the Sandiganbayan and the Ombudsman in finding probable cause against petitioner for plunder. Neither did the Sandiganbayan abuse its discretion in denying petitioners motion for reinvestigation of the charges against him in the amended Information. In its Resolution of April 25, 2001, the Sandiganbayan affirmed the finding of the Ombudsman that probable cause exists against petitioner and his co-accused for the crime of plunder, thus: In the light of the foregoing and considering the allegations of the Amended Information dated 18 April 2001 charging the accused with the offense of PLUNDER and examining carefully the evidence submitted in support thereof consisting of the affidavits and sworn statements and testimonies of prosecution witnesses and several other pieces of documentary evidence, as well as the respective counter-affidavits of accused former President Joseph Estrada dated March 20, 2001, Jose Jinggoy Pimentel Estrada dated February 20, 2001, Yolanda T. Ricaforte dated January 21, 2001 and Edward S. Serapio dated February 21, 2001, the Court finds and so holds that probable cause for the offense of PLUNDER exists to justify issuance of warrants of arrest of accused former President Joseph Ejercito Estrada, Mayor Jose Jinggoy Estrada, Charlie Atong Ang, Edward Serapio, Yolanda T. Ricaforte, Alma

Alfaro, John Doe. a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a Delia [44] Rajas. Likewise, in its Resolution dated May 31, 2001 of petitioners omnibus motion, the Sandiganbayan noted that a preliminary investigation was fully conducted in accordance with Rule II, Administrative Order No. 7 of the Office of the Ombudsman, pursuant to Sections 18, 23 and 27 of Republic Act No. 6770 (The Ombudsman Act of 1989); and that all the basic complaints and evidence in support thereof were served [45] upon all the accused. It was in light of such findings that the Sandiganbayan held that there was no basis for the allegation that accused therein (including petitioner) were deprived of the right to seek a reconsideration of the Ombudsmans Resolution dated April 4, 2001 finding probable cause to charge them with plunder after the conduct of preliminary investigation in connection therewith. In addition, the Sandiganbayan pointed out that petitioner filed a motion for reconsideration of the Ombudsmans resolution, but failed to show in his motion that there were newly discovered evidence, or that the preliminary investigation was tainted by errors of law or irregularities, which are the only grounds for [46] which a reconsideration of the Ombudsmans resolution may be granted. It bears stressing that the right to a preliminary investigation is not a constitutional right, but is merely [47] a right conferred by statute. The absence of a preliminary investigation does not impair the validity of the Information or otherwise render the same defective and neither does it affect the jurisdiction of the [48] court over the case or constitute a ground for quashing the Information. If the lack of a preliminary investigation does not render the Information invalid nor affect the jurisdiction of the court over the case, with more reason can it be said that the denial of a motion for reinvestigation cannot invalidate the Information or oust the court of its jurisdiction over the case. Neither can it be said that petitioner had been deprived of due process. He was afforded the opportunity to refute the charges against him during the preliminary investigation. The purpose of a preliminary investigation is merely to determine whether a crime has been committed and whether there is probable cause to believe that the person accused of the crime is [49] probably guilty thereof and should be held for trial. As the Court held in Webb vs. De Leon, [a] finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspect. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and [50] definitely, not on evidence establishing absolute certainty of guilt. Absent any showing of arbitrariness on the part of the prosecutor or any other officer authorized to conduct preliminary investigation, courts as a rule must defer to said officers finding and determination of probable cause, since the determination of the existence of probable cause is the function of the [51] prosecutor. The Court agrees with the Sandiganbayan that petitioner failed to establish that the preliminary investigation conducted by the Ombudsman was tainted with irregularity or that its findings stated in the joint resolution dated April 4, 2001 are not supported by the facts, and that a reinvestigation was necessary. Certiorari will not lie to invalidate the Sandiganbayans resolution denying petitioners motion for reinvestigation since there is nothing to substantiate petitioners claim that it gravely abused its discretion [52] in ruling that there was no need to conduct a reinvestigation of the case. The ruling in Rolito Go vs. Court of Appeals that an accused shall not be deemed to have waived his right to ask for a preliminary investigation after he had been arraigned over his objection and despite his insistence on the conduct of said investigation prior to trial on the merits does not apply in the instant case because petitioner merely prayed for a reinvestigation on the ground of a newly-discovered evidence. Irrefragably, a preliminary investigation had been conducted by the Ombudsman prior to the filing of the amended Information, and that petitioner had participated therein by filing his counteraffidavit. Furthermore, the Sandiganbayan had already denied his motion for reinvestigation as well as [54] his motion for reconsideration thereon prior to his arraignment. In sum then, the petition is dismissed.
[53]

Re: G.R. No. 148468

As synthesized by the Court from the petition and the pleadings of the parties, the issues for resolution are: (1) Whether or not petitioner should first be arraigned before hearings of his petition for bail may be conducted; (2) Whether petitioner may file a motion to quash the amended Information during the pendency of his petition for bail; (3) Whether a joint hearing of the petition for bail of petitioner and those of the other accused in Criminal Case No. 26558 is mandatory; (4) Whether the People waived their right to adduce evidence in opposition to the petition for bail of petitioner and failed to adduce strong evidence of guilt of petitioner for the crime charged; and (5) Whether petitioner was deprived of his right to due process in Criminal Case No. 26558 and should thus be released from detention via a writ of habeas corpus. On the first issue, petitioner contends that the Sandiganbayan committed a grave abuse of its discretion amounting to excess or lack of jurisdiction when it deferred the hearing of his petition for bail to July 10, 2001, arraigned him on said date and entered a plea of not guilty for him when he refused to be arraigned. He insists that the Rules on Criminal Procedure, as amended, does not require that he be arraigned first prior to the conduct of bail hearings since the latter can stand alone and must, of necessity, [55] be heard immediately. Petitioner maintains that his arraignment before the bail hearings are set is not necessary since he would not plead guilty to the offense charged, as is evident in his earlier statements insisting on his innocence during the Senate investigation of thejueteng scandal and the preliminary [56] investigation before the Ombudsman. Neither would the prosecution be prejudiced even if it would present all its evidence before his arraignment because, under the Revised Penal Code, a voluntary confession of guilt is mitigating only if made prior to the presentation of evidence for the [57] prosecution, and petitioner admitted that he cannot repudiate the evidence or proceedings taken during the bail hearings because Rule 114, Section 8 of the Revised Rules of Court expressly provides that [58] evidence present during bail hearings are automatically reproduced during the trial. Petitioner likewise assures the prosecution that he is willing to be arraigned prior to the posting of a bail bond should he be [59] granted bail. The People insist that arraignment is necessary before bail hearings may be commenced, because it is only upon arraignment that the issues are joined. The People stress that it is only when an accused pleads not guilty may he file a petition for bail and if he pleads guilty to the charge, there would be no more need for him to file said petition. Moreover, since it is during arraignment that the accused is first informed of the precise charge against him, he must be arraigned prior to the bail hearings to prevent him from later assailing the validity of the bail hearings on the ground that he was not properly informed of the charge against him, especially considering that, under Section 8, Rule 114 of the Revised Rules of Court, evidence presented during such proceedings are considered automatically reproduced at the [60] trial. Likewise, the arraignment of accused prior to bail hearings diminishes the possibility of an accuseds flight from the jurisdiction of the Sandiganbayan because trial in absentia may be had only if an [61] accused escapes after he has been arraigned. The People also contend that the conduct of bail hearings prior to arraignment would extend to an accused the undeserved privilege of being appraised of [62] the prosecutions evidence before he pleads guilty for purposes of penalty reduction. Although petitioner had already been arraigned on July 10, 2001 and a plea of not guilty had been entered by the Sandiganbayan on his behalf, thereby rendering the issue as to whether an arraignment is necessary before the conduct of bail hearings in petitioners case moot, the Court takes this opportunity to discuss the controlling precepts thereon pursuant to its symbolic function of educating the bench and [63] bar. The contention of petitioner is well-taken. The arraignment of an accused is not a prerequisite to the conduct of hearings on his petition for bail. A person is allowed to petition for bail as soon as he is [64] deprived of his liberty by virtue of his arrest or voluntary surrender. An accused need not wait for his arraignment before filing a petition for bail. In Lavides vs. Court of Appeals, this Court ruled on the issue of whether an accused must first be arraigned before he may be granted bail. Lavides involved an accused charged with violation of Section 5(b) Republic Act No. 7610 (The Special Protection of Children Against Abuse, Exploitation and Discrimination Act), an offense punishable by reclusion temporal in its medium period toreclusion perpetua. The accused therein assailed, inter alia, the trial courts imposition of the condition that he should first be arraigned before he is allowed to post bail. We held therein that in cases where it is
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authorized, bail should be granted before arraignment, otherwise the accused may be precluded from [66] filing a motion to quash. However, the foregoing pronouncement should not be taken to mean that the hearing on a petition for bail should at all times precede arraignment, because the rule is that a person deprived of his liberty by virtue of his arrest or voluntary surrender may apply for bail as soon as he is deprived of his liberty, [67] even before a complaint or information is filed against him. The Courts pronouncement in Lavides should be understood in light of the fact that the accused in said case filed a petition for bail as well as a motion to quash the informations filed against him. Hence, we explained therein that to condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between (1) filing a motion to quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. This would undermine his constitutional right not to be put on trial except upon a valid complaint or Information sufficient to [68] charge him with a crime and his right to bail. It is therefore not necessary that an accused be first arraigned before the conduct of hearings on his application for bail. For when bail is a matter of right, an accused may apply for and be granted bail even prior to arraignment. The ruling in Lavides also implies that an application for bail in a case involving an offense punishable by reclusion perpetua to death may also be heard even before an accused is arraigned. Further, if the court finds in such case that the accused is entitled to bail because the evidence against him is not strong, he may be granted provisional liberty even prior to arraignment; for in such a situation, bail would be authorized under the circumstances. In fine, the Sandiganbayan committed a grave abuse of its discretion amounting to excess of jurisdiction in ordering the arraignment of petitioner before proceeding with the hearing of his petition for bail. With respect to the second issue of whether petitioner may file a motion to quash during the pendency of his petition for bail, petitioner maintains that a motion to quash and a petition for bail are not inconsistent, and may proceed independently of each other. While he agrees with the prosecution that a motion to quash may in some instances result in the termination of the criminal proceedings and in the release of the accused therein, thus rendering the petition for bail moot and academic, he opines that such is not always the case; hence, an accused in detention cannot be forced to speculate on the outcome of a motion to quash and decide whether or not to file a petition for bail or to withdraw one that [69] has been filed. He also insists that the grant of a motion to quash does not automatically result in the discharge of an accused from detention nor render moot an application for bail under Rule 117, Section 5 [70] of the Revised Rules of Court. The Court finds that no such inconsistency exists between an application of an accused for bail and his filing of a motion to quash. Bail is the security given for the release of a person in the custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under [71] the conditions set forth under the Rules of Court. Its purpose is to obtain the provisional liberty of a person charged with an offense until his conviction while at the same time securing his appearance at the [72] trial. As stated earlier, a person may apply for bail from the moment that he is deprived of his liberty by [73] virtue of his arrest or voluntary surrender. On the other hand, a motion to quash an Information is the mode by which an accused assails the validity of a criminal complaint or Information filed against him for insufficiency on its face in point of law, [74] or for defects which are apparent in the face of the Information. An accused may file a motion to quash [75] the Information, as a general rule, before arraignment. These two reliefs have objectives which are not necessarily antithetical to each other. Certainly, the right of an accused right to seek provisional liberty when charged with an offense not punishable by death, reclusion perpetua or life imprisonment, or when charged with an offense punishable by such penalties but after due hearing, evidence of his guilt is found not to be strong, does not preclude his right to assail the validity of the Information charging him with such offense. It must be conceded, however, that if a motion to quash a criminal complaint or Information on the ground that the same does not charge any offense is granted and the case is dismissed and the accused is ordered released, the petition for bail of an accused may become moot and academic.

We now resolve the issue of whether or not it is mandatory that the hearings on the petitions for bail of petitioner and accused Jose Jinggoy Estrada in Criminal Case No. 26558 and the trial of the said case as against former President Joseph E. Estrada be heard jointly. Petitioner argues that the conduct of joint bail hearings would negate his right to have his petition for bail resolved in a summary proceeding since said hearings might be converted into a full blown trial on [76] the merits by the prosecution. For their part, the People claim that joint bail hearings will save the court from having to hear the same witnesses and the parties from presenting the same evidence where it would allow separate bail [77] hearings for the accused who are charged as co-conspirators in the crime of plunder. In issuing its June 1, 2001 Order directing all accused in Criminal Case No. 26558 to participate in the bail hearings, the Sandiganbayan explained that the directive was made was in the interest of the speedy disposition of the case. It stated: x x x The obvious fact is, if the rest of the accused other than the accused Serapio were to be excused from participating in the hearing on the motion for bail of accused Serapio, under the pretext that the same does not concern them and that they will participate in any hearing where evidence is presented by the prosecution only if and when they will already have filed their petitions for bail, or should they decide not to file any, that they will participate only during the trial proper itself, then everybody will be faced with the daunting prospects of having to go through the process of introducing the same witness and pieces of evidence two times, three times or four times, as many times as there are petitions for bail filed. Obviously, such procedure is not conducive to the speedy termination of a case. Neither can such [78] procedure be characterized as an orderly proceeding. There is no provision in the Revised Rules of Criminal Procedure or the Rules of Procedure of the Sandiganbayan governing the hearings of two or more petitions for bail filed by different accused or that a petition for bail of an accused be heard simultaneously with the trial of the case against the other accused. The matter of whether or not to conduct a joint hearing of two or more petitions for bail filed by two different accused or to conduct a hearing of said petition jointly with the trial against another accused is addressed to the sound discretion of the trial court. Unless grave abuse of discretion amounting to excess or lack of jurisdiction is shown, the Court will not interfere with the exercise by the Sandiganbayan of its discretion. It may be underscored that in the exercise of its discretion, the Sandiganbayan must take into account not only the convenience of the State, including the prosecution, but also that of the accused and the witnesses of both the prosecution and the accused and the right of accused to a speedy trial. The Sandiganbayan must also consider the complexities of the cases and of the factual and legal issues involving petitioner and the other accused. After all, if this Court may echo the observation of the United States Supreme Court, the State has a stake, with every citizen, in his being afforded our historic individual protections, including those surrounding criminal prosecutions. About them, this Court dares [79] not become careless or complacent when that fashion has become rampant over the earth. It must be borne in mind that in Ocampo vs. Bernabe, this Court held that in a petition for bail hearing, the court is to conduct only a summary hearing, meaning such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of evidence for purposes of bail. The court does not try the merits or enter into any inquiry as to the weight that ought to be given to the evidence against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be offered therein. It may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross-examination of witnesses, and reducing to a reasonable minimum the amount of corroboration particularly on details that are not essential to the purpose of the hearing. A joint hearing of two separate petitions for bail by two accused will of course avoid duplication of time and effort of both the prosecution and the courts and minimizes the prejudice to the accused, especially so if both movants for bail are charged of having conspired in the commission of the same
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crime and the prosecution adduces essentially the same evident against them. However, in the cases at bar, the joinder of the hearings of the petition for bail of petitioner with the trial of the case against former President Joseph E. Estrada is an entirely different matter. For, with the participation of the former president in the hearing of petitioners petition for bail, the proceeding assumes a completely different dimension. The proceedings will no longer be summary. As against former President Joseph E. Estrada, the proceedings will be a full-blown trial which is antithetical to the nature of a bail hearing. Moreover, following our ruling in Jose Estrada vs. Sandiganbayan, supra where we stated that Jose Jinggoy Estrada can only be charged with conspiracy to commit the acts alleged in sub-paragraph (a) of the amended Information since it is not clear from the latter if the accused in sub-paragraphs (a) to (d) thereof conspired with each other to assist Joseph Estrada to amass ill-gotten wealth, we hold that petitioner can only be charged with having conspired with the other co-accused named in sub-paragraph (a) by receiving or collecting, directly or indirectly, on several instances, money x x x from illegal gambling, x x x [81] in consideration of toleration or protection of illegal gambling. Thus, with respect to petitioner, all that the prosecution needs to adduce to prove that the evidence against him for the charge of plunder is strong are those related to the alleged receipt or collection of money from illegal gambling as described in sub-paragraph (a) of the amended Information. With the joinder of the hearing of petitioners petition for bail and the trial of the former President, the latter will have the right to cross-examine intensively and extensively the witnesses for the prosecution in opposition to the petition for bail of petitioner. If petitioner will adduce evidence in support of his petition after the prosecution shall have concluded its evidence, the former President may insist on cross-examining petitioner and his witnesses. The joinder of the hearing of petitioners bail petition with the trial of former President Joseph E. Estrada will be prejudicial to petitioner as it will unduly delay the determination of the issue of the right of petitioner to obtain provisional liberty and seek relief from this Court if his petition is denied by the respondent court. The indispensability of the speedy resolution of an application for bail was succinctly explained by Cooley in his treatise Constitutional Limitations, thus: For, if there were any mode short of confinement which would with reasonable certainty insure the attendance of the accused to answer the accusation, it would not be justifiable to inflict upon him that indignity, when the effect is to subject him in a greater or lesser degree, to the punishment of a guilty [82] person, while as yet it is not determined that he has not committed any crime. While the Sandiganbayan, as the court trying Criminal Case No. 26558, is empowered to proceed with the trial of the case in the manner it determines best conducive to orderly proceedings and speedy [83] termination of the case, the Court finds that it gravely abused its discretion in ordering that the petition for bail of petitioner and the trial of former President Joseph E. Estrada be held jointly. It bears stressing that the Sandiganbayan itself acknowledged in its May 4, 2001 Order the pre-eminent position and superiority of the rights of [petitioner] to have the matter of his provisional liberty resolved without [84] unnecessary delay, only to make a volte face and declare that after all the hearing of petition for bail of petitioner and Jose Jinggoy Estrada and the trial as against former President Joseph E. Estrada should be held simultaneously. In ordering that petitioners petition for bail to be heard jointly with the trial of the case against his co-accused former President Joseph E. Estrada, the Sandiganbayan in effect allowed further and unnecessary delay in the resolution thereof to the prejudice of petitioner. In fine then, the Sandiganbayan committed a grave abuse of its discretion in ordering a simultaneous hearing of petitioners petition for bail with the trial of the case against former President Joseph E. Estrada on its merits. With respect to petitioners allegations that the prosecution tried to delay the bail hearings by filing dilatory motions, the People aver that it is petitioner and his co-accused who caused the delay in the trial of Criminal Case No. 26558 by their filing of numerous manifestations and pleadings with the [85] Sandiganbayan. They assert that they filed the motion for joint bail hearing and motion for earlier [86] arraignment around the original schedule for the bail hearings which was on May 21-25, 2001. They argue further that bail is not a matter of right in capital offenses. Article III, Sec 13 of the Constitution, which states that
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In support thereof, they cite

All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas [88] corpus is suspended. Excessive bail shall not be required. The People also cited Rule 114, Secs. 7 and 4 of the Revised Rules of Court which provide: Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable.No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonement, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution. Sec. 4. Bail, a matter of right, exception.All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule x x x (b) and before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or [89] life imprisonment. Irrefragably, a person charged with a capital offense is not absolutely denied the opportunity to obtain provisional liberty on bail pending the judgment of his case. However, as to such person, bail is [90] not a matter of right but is discretionary upon the court. Had the rule been otherwise, the Rules would not have provided for an application for bail by a person charged with a capital offense under Rule 114, Section 8 which states: Sec. 8. Burden of proof in bail application. At the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that the evidence of guilt is strong. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may recall any witness for additional examination unless the latter is [91] dead, outside the Philippines, or otherwise unable to testify. Under the foregoing provision, there must be a showing that the evidence of guilt against a person charged with a capital offense is not strong for the court to grant him bail. Thus, upon an application for bail by the person charged with a capital offense, a hearing thereon must be conducted, where the prosecution must be accorded an opportunity to discharge its burden of proving that the evidence of guilt [92] against an accused is strong. The prosecution shall be accorded the opportunity to present all the [93] evidence it may deems necessary for this purpose. When it is satisfactorily demonstrated that the evidence of guilt is strong, it is the courts duty to deny the application for bail. However, when the [94] evidence of guilt is not strong, bail becomes a matter of right. In this case, petitioner is not entitled to bail as a matter of right at this stage of the proceedings. Petitioners claim that the prosecution had refused to present evidence to prove his guilt for purposes of his bail application and that the Sandiganbayan has refused to grant a hearing thereon is not borne by the records. The prosecution did not waive, expressly or even impliedly, its right to adduce evidence in opposition to the petition for bail of petitioner. It must be noted that the Sandiganbayan had already scheduled the hearing dates for petitioners application for bail but the same were reset due to pending incidents raised in several motions filed by the parties, which incidents had to be resolved by the court prior to the bail hearings. The bail hearing was eventually scheduled by the Sandiganbayan on July 10, 2001 but the hearing did not push through due to the filing of this petition on June 29, 2001. The delay in the conduct of hearings on petitioners application for bail is therefore not imputable solely to the Sandiganbayan or to the prosecution. Petitioner is also partly to blame therefor, as is evident from the following list of motions filed by him and by the prosecution: Motions filed by petitioner:

Urgent Omnibus Motion, dated April 6, 2001, for (1) leave to file motion for reconsideration/reinvestigation and to direct ombudsman to conduct reinvestigation; (2) conduct a determination of probable cause as would suggest the issuance of house arrest; (3) hold in abeyance the issuance of warrant of arrest and other proceedings pending determination of probable cause; Motion for Early Resolution, dated May 24, 2001; Urgent Motion to Hold in Abeyance Implementation or Service of Warrant of Arrest for Immediate Grant of bail or For Release on Recognizance, dated April 25, 2001; Urgent Motion to allow Accused Serapio to Vote at Obando, Bulacan, dated May 11, 2001; Urgent Motion for Reconsideration, dated May 22, 2001, praying for Resolution of May 18, 2001 be set aside and bail hearings be set at the earliest possible time; Urgent Motion for Immediate Release on Bail or Recognizance, dated May 27, 2001; Motion for Reconsideration of denial of Urgent Omnibus Motion, dated June 13, 2001, praying that he be allowed to file a Motion for Reinvestigation; and Motion to Quash, dated June 26, 2001.
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Motions filed by the prosecution: Motion for Earlier Arraignment, dated May 8, 2001;
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Motion for Joint Bail Hearings of Accused Joseph Estrada, Jose Jinggoy Estrada and [97] Edward Serapio, dated May 8, 2001; Opposition to the Urgent Motion for Reconsideration and Omnibus Motion to Adjust Earlier [98] Arraignment, dated May 25, 2001; and Omnibus Motion for Examination, Testimony and Transcription in Filipino, dated June 19, [99] 2001.

The other accused in Criminal Case No. 26558 also contributed to the aforesaid delay by their filing of the following motions: Motion to Quash or Suspend, dated April 24, 2001, filed by Jinggoy Estrada, assailing the constitutionality of R.A. No. 7080 and praying that the Amended Information be quashed; Very Urgent Omnibus Motion, dated April 30, 2001, filed by Jinggoy Estrada, praying that he be (1) excluded from the Amended Information for lack of probable cause; (2) released from custody; or in the alternative, (3) be allowed to post bail; Urgent Ex-Parte Motion to Place on House Arrest, dated April 25, 2001, filed by Joseph and Jinggoy Estrada, praying that they be placed on house arrest during the pendency of the case; Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy Estrada;

Supplemental Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy Estrada; Omnibus Motion, dated May 7, 2001, filed by Joseph Estrada, praying by reinvestigation of the case by the Ombudsman or the outright dismissal of the case; Urgent Ex-Parte Motion for Extension, dated May 2, 2001, filed by Jinggoy Estrada, requesting for five (5) within which to respond to the Opposition to Motion to Quash in view of the holidays and election-related distractions; Opposition to Urgent Motion for Earlier Arraignment, dated May 10, 2001, filed by Joseph Estrada; Omnibus Manifestation on voting and custodial arrangement, dated May 11, 2001, filed by Joseph and Jinggoy Estrada, praying that they be placed on house arrest; Manifestation regarding house arrest, dated May 6, 2001, filed by Joseph and Jinggoy Estrada; Summation regarding house arrest, dated May 23, 2001, filed by Joseph and Jinggoy Estrada; Urgent Manifestation & Motion, dated May 6, 2001 filed by Jinggoy Estrada; Manifestation, dated May 28, 2001, filed by Joseph and Jinggoy Estrada, praying that they be allowed to be confined in Tanay; Motion to charge as Accused Luis Chavit Singson, filed by Joseph Estrada; Omnibus Motion, dated June 11, 2001, filed by Joseph and Jinggoy Estrada, seeking reconsideration of denial of requests for house arrest, for detention in Tanay or Camp Crame; motion for inhibition of Justice Badoy; Urgent Motion to Allow Accused to Clear His Desk as Mayor of San Juan, Metro Manila, dated June 28, 2001, filed by Jinggoy Estrada; Motion for Reconsideration, dated June 9, 2001, filed by Joseph and Jinggoy Estrada, praying that the resolution compelling them to be present at petitioner Serapios hearing for bail be reconsidered; Motion to Quash, dated June 7, 2001, filed by Joseph Estrada; Still Another Manifestation, dated June 14, 2001, filed by Joseph and Jinggoy Estrada stating that Bishop Teodoro Bacani favors their house arrest; Manifestation, dated June 15, 2001, filed by Joseph and Jinggoy Estrada, waiving their right to be present at the June 18 and 21, 2001 bail hearings and reserving their right to trial with assessors; Omnibus Motion for Instructions: 30-Day House Arrest; Production, Inspection and Copying of Documents; and Possible Trial with Assessors, dated June 19, 2001, filed by Joseph and Jinggoy Estrada;

Urgent Motion for Additional Time to Wind Up Affairs, dated June 20, 2001, filed by Jinggoy Estrada; Manifestation, dated June 22, 2001, filed by Jinggoy Estrada, asking for free dates for parties, claiming that denial of bail is cruel and inhuman, reiterating request for gag order of prosecution witnesses, availing of production, inspection and copying of documents, requesting for status of alias case; and Compliance, dated June 25, 2001, filed by Jinggoy Estrada, requesting for permission to [100] attend some municipal affairs in San Juan, Metro Manila.

Furthermore, the Court has previously ruled that even in cases where the prosecution refuses to adduce evidence in opposition to an application for bail by an accused charged with a capital offense, the [101] trial court is still under duty to conduct a hearing on said application. The rationale for such [102] requirement was explained in Narciso vs. Sta. Romana-Cruz (supra), citing Basco vs. Rapatalo: When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt against the accused is strong. However, the determination of whether or not the evidence of guilt is strong, being a matter of judicial discretion, remains with the judge. This discretion by the very nature of things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of the evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court, it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross[103] examination and to introduce his own evidence in rebuttal. Accordingly, petitioner cannot be released from detention until the Sandiganbayan conducts a hearing of his application for bail and resolve the same in his favor. Even then, there must first be a finding that the evidence against petitioner is not strong before he may be granted bail. Anent the issue of the propriety of the issuance of a writ of habeas corpus for petitioner, he contends that he is entitled to the issuance of said writ because the State, through the prosecutions refusal to present evidence and by the Sandiganbayans refusal to grant a bail hearing, has failed to discharge its burden of proving that as against him, evidence of guilt for the capital offense of plunder is strong. Petitioner contends that the prosecution launched a seemingly endless barrage of obstructive and dilatory moves to prevent the conduct of bail hearings. Specifically, the prosecution moved for petitioners arraignment before the commencement of bail hearings and insisted on joint bail hearings for petitioner, Joseph Estrada and Jinggoy Estrada despite the fact that it was only petitioner who asked for a bail hearing; manifested that it would present its evidence as if it is the presentation of the evidence in chief, meaning that the bail hearings would be concluded only after the prosecution presented its entire case upon the accused; and argued that petitioners motion to quash and his petition for bail are [104] inconsistent, and therefore, petitioner should choose to pursue only one of these two remedies. He further claims that the Sandiganbayan, through its questioned orders and resolutions postponing the bail [105] hearings effectively denied him of his right to bail and to due process of law. Petitioner also maintains that the issuance by the Sandiganbayan of new orders canceling the bail hearings which it had earlier set did not render moot and academic the petition for issuance of a writ of habeas corpus, since said orders have resulted in a continuing deprivation of petitioners right to [106] bail. He argues further that the fact that he was arrested and is detained pursuant to valid process does not by itself negate the efficacy of the remedy of habeas corpus. In support of his contention, [107] petitioner citesMoncupa vs. Enrile, where the Court held that habeas corpus extends to instances [108] where the detention, while valid from its inception, has later become arbitrary. However, the People insist that habeas corpus is not proper because petitioner was arrested [109] pursuant to the amended information which was earlier filed in court, the warrant of arrest issuant [110] pursuant thereto was valid, and petitioner voluntarily surrendered to the authorities.

As a general rule, the writ of habeas corpus will not issue where the person alleged to be restrained [111] of his liberty in custody of an officer under a process issued by the court which jurisdiction to do so. In exceptional circumstances, habeas corpus may be granted by the courts even when the person concerned is detained pursuant to a valid arrest or his voluntary surrender, for this writ of liberty is recognized as the fundamental instrument for safeguarding individual freedom against arbitrary and [112] lawless state action due to its ability to cut through barriers of form and procedural mazes. Thus, in previous cases, we issued the writ where the deprivation of liberty, while initially valid under the law, had [113] later become invalid, and even though the persons praying for its issuance were not completely [114] deprived of their liberty. The Court finds no basis for the issuance of a writ of habeas corpus in favor of petitioner. The general rule that habeas corpusdoes not lie where the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court which had jurisdiction to issue the [115] same applies, because petitioner is under detention pursuant to the order of arrest issued by the Sandiganbayan on April 25, 2001 after the filing by the Ombudsman of the amended information for plunder against petitioner and his co-accused. Petitioner had in fact voluntarily surrendered himself to the authorities on April 25, 2001 upon learning that a warrant for his arrest had been issued. The ruling in Moncupa vs. Enrile that habeas corpus will lie where the deprivation of liberty which was initially valid has become arbitrary in view of subsequent developments finds no application in the present case because the hearing on petitioners application for bail has yet to commence. As stated earlier, the delay in the hearing of petitioners petition for bail cannot be pinned solely on the Sandiganbayan or on the prosecution for that matter. Petitioner himself is partly to be blamed. Moreover, [117] a petition forhabeas corpus is not the appropriate remedy for asserting ones right to bail. It cannot be availed of where accused is entitled to bail not as a matter of right but on the discretion of the court and [118] the latter has not abused such discretion in refusing to grant bail, or has not even exercised said discretion. The proper recourse is to file an application for bail with the court where the criminal case is pending and to allow hearings thereon to proceed. The issuance of a writ of habeas corpus would not only be unjustified but would also preempt the Sandiganbayans resolution of the pending application for bail of petitioner. The recourse of petitioner is to forthwith proceed with the hearing on his application for bail. IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby rendered as follows: 1. In G.R. No. 148769 and G.R. No. 149116, the petitions are DISMISSED. The resolutions of respondent Sandiganbayan subject of said petitions are AFFIRMED; and 2. In G.R. No. 148468, the petition is PARTIALLY GRANTED. The resolution of respondent Sandiganbayan, Annex L of the petition, ordering a joint hearing of petitioners petition for bail and the trial of Criminal Case No. 26558 as against former President Joseph E. Estrada is SET ASIDE; the arraignment of petitioner on July 10, 2001 is also SET ASIDE. No costs. SO ORDERED.
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