G.R. No.

183700 October 13, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
PABLITO ANDAYA y REANO, Accused-Appellant.

DECISION

BERSAMIN, J.:

The non-presentation of the confidential informant as a witness does not ordinarily weaken the
State's case against the accused. However, if the arresting lawmen arrested the accused based on
the pre-arranged signal from the confidential informant who acted as the poseur buyer, his
nonpresentation must be credibly explained and the transaction established by other ways in order
to satisfy the quantum of proof beyond reasonable doubt because the arresting lawmen did not
themselves participate in the buy-bust transaction with the accused.

Antecedents

On February 7, 2003, an information for violation of Section 5 of Republic Act No. 91651 (RA 9165)
was filed charging Pablito Andaya y Reano (Andaya). The accusatory portion of the information
reads:

That on or about December 16, 2002 at around 9:50 o'clock in the evening at Brgy. San Jose Sico,
Batangas City, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, not being authorized by law, did then and there, willfully, unlawfully and feloniously, sell,
dispense or deliver, more or less 0.09 gram(s) of Methamphetamine Hydrochloride (shabu), a
dangerous drug, which is a clear violation of the above-cited law. CONTRARY TO LAW.2

Upon arraignment,3 Andaya pleaded not guilty to the charge. Thereafter, trial on the merits ensued.

The CA summed up the versions of the parties, as follows:4

Five (5) witnesses were presented by the prosecution, namely: SPO4 Delfin Alea, SPO3 Nelio
Lopez, SPO2 Danilo Mercado, SPO4 Protasio Marasigan and Jupri Delantar.

SPO2 Delfin Alea testified that at about 8:00 o'clock in the evening of December 16, 2002, their
asset who was conducting surveillance of Pablito Andaya in Barangay San Jose Sico, Batangas
City, arrived at their station. Said asset reported that he had arranged to buy shabu from Pablito. A
team composed of SPO1 Aguila, SPO1 Cabungcal, Eric de Chavez, PO1 Lindberg Yap, Edwalberto
Villar and asset Bagsit was constituted to conduct a buy-bust. Two (2) pieces of P100.00 bills both
duly marked "X" were recorded in the police blotter. Alea gave the marked bills to the asset. Upon
reaching the designated place, the team members alighted from their vehicles and occupied different
positions where they could see and observe the asset. The asset knocked on the door of Pablito's
house. Pablito came out. Pablito and the asset talked briefly. The asset gave Pablito the marked
money. The asset received something from appellant. The pre-arranged signal signifying
consummation of the transaction was given. The team members approached Pablito and the asset,
introduced themselves as police officers and arrested accused. He was brought to the police station.
The arrival of the team was recorded in the police blotter. The merchandise handed by accused to
the asset was sent to the Regional Crime Laboratory in Camp Vicente Lim, Canlubang, Laguna. The
specimen was positive for methampethamine Hydrochloride (shabu), a dangerous drug.
SPO2 Lopez received the person of the accused, the marked money and the item accused handed
to the asset. Lopez prepared the request for laboratory examination. He also prepared the
documents required for filing of the case with the Public Prosecutor.

SPO2 Danilo Mercado recorded the marked bills in the police blotter before the buy-bust. Upon the
team's return, the marked money and the merchandise from accused were turned over to SPO2
Mercado. He prepared a complaint sheet. Thereafter, he turned over accused and the evidence to
the Police Investigator.

SPo4 Protacio Marasigan received a written request for laboratory examination of the subject
merchandise. He brought the request to the crime laboratory in Laguna.

Jupri Delantar, a Forensic Chemical Officer in Camp Vicente Lim, Laguna, conducted the
examination. The merchandise tested positive for shabu.

Accused-appellant denied the charge. He stated that at about 9: 15 in the evening of December 16,
2002 he was at home watching TV with his family when police officers arrived. When he opened the
door, a police officer poked his gun at him. Somebody else held a long firearm. Pablito was
handcuffed and brought outside. He refused to negotiate and asked for a warrant. The policemen
searched the house, turned over the beddings and uncovered their furniture. No gun nor shabu was
found. Pablito was brought to the police station and detained. After three (3) days he was released.
He received a subpoena from the Public Prosecutor afterwards.

His wife Crisanta, corroborated appellants' testimony. She added having told her husband about the
loss of their cellphone and the money in his wallet. She was asked to produce P5,000.00 which she
was unable to do. She was able to raise only P2,000.00.

Judgment of the RTC

On February 21, 2006, the Regional Trial Court, Branch 4, in Batangas City (R TC) rendered its
judgment convicting Andaya as charged, and meted him the penalty of life imprisonment,5 viz:

In the case at bar, the buy-bust operation conducted on the night of December 16, 2002 is supported
by the police blotter wherein not only was the depaiiure and arrival of the operatives have been duly
recorded but also the two (2) pieces of marked one hundred peso bills. The arrest of the accused
was made after the police asset had given the pre-arranged signal outside his house. The marked
money was recovered from the very hand of the accused while the deck of crystalline substances
given to the asset upon the latter's handing over to the accused the marked money has been turned
over to the police by the asset. The crystalline substance when examined at the police crime
laboratory was found to contain methamphetamine hydrochloride a dangerous and prohibited drug
and weighed 0.09 gram.

These foregoing facts have been clearly testified to by the Prosecution witnesses who are members
of the Philippine Integrated National Police Force stationed at Batangas City. No ill-motive has been
imputed to any of these police officers prior to and at the time the herein accused was arrested on
the night of December 16, 2002.

The accused and his wife as a defense denied the sale of shabu that fateful night. There were
allegations in their testimonies that the police demanded money from them. The wife of the accused
even testified that she gave P 1,500.00 to the police officer who then eventually released said
accused. And early on, she even claimed money and a cellphone were missing after the accused
was arrested in their house.
The testimonies of the accused and his wife are bereft of any corroborating evidence emanating
from a disinterested source. It is no less than self-serving devoid of any credence considering the
following circumstances:

1. Scrutinizing the entirety of the testimony of the accused and his wife Crisanta Andaya,
there are material variances gleaned therefrom. The accused himself never testified that he
was pushed to a chair and yet witness Crisanta Andaya said she saw her husband pushed to
a chair. Also, the accused said there were two guns poked at him when he opened the door
but his wife said only one was holding a gun while another had a long firearm on his
shoulder.

2. The testimony of the accused was that only P500.00 was taken by the police before his
release. But the wife said P1,500.00 was given to the police before the accused was
released. 3. The accused and his wife never made any complaint to the proper authorities as
regards the alleged loss of money and cellphone when the accused was arrested on
December 16, 2002. Neither was there any complaint filed by them for the alleged P500.00
or Pl1500.00 demanded from and given by them to the police.

4. The accused was a resident of Barangay San Jose Sico, Batangas City since the 1980's
why was it that it was at Rosario, Batangas where the accused was arrested. The Defense
gave no evidence to contest the presumption of guilt based on flight.

5. It is significant to note also that the accused never bothered to ask who was knocking at
his door past 9:00 o'clock in the evening. While his family was already lying in bed to sleep
he was still watching T.V. These actuations of the accused tend to support the fact that the
police asset had made a deal with the accused for the sale of shabu and was expecting the
asset to come that night.

In the light of all foregoing considerations, the Court is left with no alternative than to find the herein
accused criminally liable for the offense charged in the information.

Wherefore, accused Pablito Andaya y Reano is found GUILTY beyond reasonable doubt of violating
Section 5, Article II of Republic Act No. 9165. He is therefore sentenced to undergo life
imprisonment and to pay the costs of this action. The 0.09 gram of methamphetamine hydrochloride
subject of this case is confiscated and directed to be proceeded against pursuant to law.

The accused may be credited with his preventive imprisonment if he is entitled to any.

SO ORDERED.6

Decision of the CA

In his appeal, Andaya contended:

I.

THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THE ACCUSED-APPELLANT'S

SEARCH AND ARREST AS ILLEGAL.

II.
 THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF THE
CRIME CHARGED DESPITE THE FAIL URE OF THE PROSECUTION TO PROVE HIS
GUILT BEYOND REASONABLE DOUBT.7

On February 11, 2008, the CA promulgated its assailed decision affirming the conviction,8 viz:

WHEREFORE, in view of the foregoing, the appeal is DISMISSED. The decision of Branch IV, RTC,
Fourth Judicial Region, Batangas City, in Criminal Case No. 12771 is AFFIRMED in toto.

SO ORDERED.9

Issues

Hence, Andaya appeals, insisting that the search of his house and his person and his arrest by the
police officers violated his constitutional right against unreasonable searches and seizures; and that
the Prosecution's nonpresentation of the confidential informant was adverse to the Prosecution,
indicating that his guilt was not proved beyond reasonable doubt.

Ruling

The appeal is meritorious.

To secure the conviction of the accused who is charged with the illegal sale of dangerous drugs as
defined and punished by Section 5, Article II of Republic Act No. 9165 (Comprehensive Drugs Act of
2002), the State must establish the concurrence of the following elements, namely: (a) that the
transaction or sale took place between the accused and the poseur buyer; and ( b) that the
dangerous drugs subject of the transaction or sale is presented in court as evidence of the corpus
delicti.10

We reiterate that a buy-bust operation is a valid and legitimate form of entrapment of the drug
pusher.11 In such operation, the poseur buyer transacts with the suspect by purchasing a quantity of
the dangerous drug and paying the price agreed upon, and in turn the drug pusher turns over or
delivers the dangerous drug subject of their agreement in exchange for the price or other
consideration. Once the transaction is consummated, the drug pusher is arrested, and can be held
to account under the criminal law. The justification that underlies the legitimacy of the buy-bust
operation is that the suspect is arrested in jlagranti delicto, that is, the suspect has just committed, or
is in the act of committing, or is attempting to commit the offense in the presence of the arresting
police officer or private person.12 The arresting police officer or private person is favored in such
instance with the presumption of regularity in the performance of official duty.

Proof of the transaction must be credible and complete. In every criminal prosecution, it is the State,
and no other, that bears the burden of proving the illegal sale of the dangerous drug beyond
reasonable doubt.13 This responsibility imposed on the State accords with the presumption of
innocence in favor of the accused, who has no duty to prove his innocence until and unless the
presumption of innocence in his favor has been overcome by sufficient and competent evidence.14

Here, the confidential informant was not a police officer. He was designated to be the poseur buyer
himself. It is notable that the members of the buy-bust team arrested Andaya on the basis of the pre-
arranged signal from the poseur buyer. The pre-arranged signal signified to the members of the buy-
bust team that the transaction had been consummated between the poseur buyer and Andaya.
However, the State did not present the confidential informant/poseur buyer during the trial to
describe how exactly the transaction between him and Andaya had taken place. There would have
been no issue against that, except that none of the members of the buy-bust team had directly
witnessed the transaction, if any, between Andaya and the poseur buyer due to their being
positioned at a distance from the poseur buyer and Andaya at the moment of the supposed
transaction.

The CA did not find anything wrong or odd in the non-presentation of the poseur buyer as a witness
against the accused. In fact, it justified the non-presentation as follows:

Appellant also questioned the failure of the prosecution to present the informer. The court is aware
of the considerations why confidential informants are usually not presented by the prosecution.
There is the need to hide their identity and preserve their invaluable service to the police. (People v.
Khor, 307 SCRA 295 [1999], citing People v. Gireng, 241 SCRA 11 [1995].) Foremost is the desire
to protect them from being objects or targets of revenge by the criminals they implicate once they
become known. (People vs. Ong, G.R. No. 137348, June 21, 2004.)

In People vs Lopez (214 SCRA 323), it was held that there was no need for the prosecution to
present the confidential informer as the poseur buyer himself positively identified the accused as the
one who sold to him one deck of methamphetamine hydrochloride or "shabu." The trial court then
properly relied on the testimonies of the police officers despite the decision of the prosecution not to
present the informer.15

The foregoing justification by the CA was off-tangent and does not help the State's cause any. It is
1âw phi1

obvious that the rulings cited to supp01i the need to conceal the confidential infonnants' identities
related to the confidential informants who gave information against suspected drug dealers. The
presentation of the confidential informants as witnesses for the Prosecution in those instances could
be excused because there were poseur buyers who directly incriminated the accused. In this case,
however, it was different, because the poseur buyer and the confidential informant were one and the
same. Without the poseur buyer's testimony, the State did not credibly incriminate Andaya.

Indeed, Section 5 of Republic Act No. 9165 punishes "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." Under the law,
selling was any act "of giving away any dangerous drug and/or controlled precursor and essential
chemical whether for money or any other consideration;"16 while delivering was any act "of knowingly
passing a dangerous drug to another, personally or otherwise, and by any means, with or without
consideration."17 Given the legal characterizations of the acts constituting the offense charged, the
members of the buy-bust team could not incriminate Andaya by simply declaring that they had seen
from their positions the poseur buyer handing something to Andaya who, in turn, gave something to
the poseur buyer. If the transaction was a sale, it was unwarranted to infer from such testimonies of
the members of the buy-bust team that what the poseur buyer handed over were the
marked P100.00 bills and that what Andaya gave to the poseur buyer was the shabu purchased.

Another mark of suspicion attending the evidence of guilt related to the reliance by the members of
the buy-bust team on the pre-arranged signal from the poseur buyer. To start with, the record does
not show what the prearranged signal consisted of. It is fundamental enough to expect the State to
be clear and definite about its evidence of guilt, particularly here where the conviction of Andaya
would require him to spend the rest of his natural life behind bars. Nothing less should be done here.
Secondly, the reliance on the supposed signal to establish the consummation of the transaction
between the poseur buyer and Andaya was unwarranted because the unmitigatedly hearsay
character of the signal rendered it entirely bereft of trustworthiness. The arresting members of the
buy-bust team interpreted the signal from the anonymous poseur buyer as the sign of the
consummation of the transaction. Their interpretation, being necessarily subjective without the
testimony of the poseur buyer, unfairly threatened the liberty of Andaya. We should not allow that
threat to perpetuate itself. And, lastly, the reliance on the signal would deprive Andaya the right to
confront and test the credibility of the poseur buyer who supposedly gave it.

We should look at the situation of Andaya with utmost caution because of what our judicial
experience through the years has told us about unscrupulous lawmen resorting to stratagems of
false incrimination in order to arrest individuals they target for ulterior reasons. In this case, the
arrest did not emanate from probable cause, for the formless signal from the anonymous poseur
buyer did not establish beyond reasonable doubt the elements of illegal sale of dangerous drugs
under Section 5 of Republic Act No. 9165. 1âw phi 1

In affirming the RTC's conviction of the accused, the CA observed that the defense of frame-up put
up by the accused was discredited by the absence of proof of "any intent on the paii of the police
authorities to falsely impute such crime against the accused, the presumption of regularity in the
performance of official duty stands."18Such outright rejection by the lower courts of Andaya's defense
of frame-up is not outrightly binding. For sure, the frame-up defense has been commonly used in
prosecutions based on buy-bust operations that have led to the an-est of the suspects.19 Its use
might be seen as excessive, but the failure of the accused to impute any ill motives to falsely
incriminate them should not deter us from scrutinizing the circumstances of the cases brought to us
for review. We should remind ourselves that we cannot presume that the accused committed the
crimes they have been charged with. The State must fully establish that for us. If the imputation of ill
motive to the lawmen is the only means of impeaching them, then that would be the end of our
dutiful vigilance to protect our citizenry from false arrests and wrongful incriminations. We are aware
that there have been in the past many cases of false arrests and wrongful incriminations, and that
should heighten our resolve to strengthen the ramparts of judicial scrutiny.

Nor should we shirk from our responsibility of protecting the liberties of our citizenry just because the
lawmen are shielded by the presumption of the regularity of their performance of duty. The
presumed regularity is nothing but a purely evidentiary tool intended to avoid the impossible and
time-consuming task of establishing every detail of the performance by officials and functionaries of
the Government. Conversion by no means defeat the much stronger and much firmer presumption
of innocence in favor of every person whose life, property and liberty comes under the risk of
forfeiture on the strength of a false accusation of committing some crime.20 The criminal accusation
against a person must be substantiated by proof beyond reasonable doubt. The Court should
steadfastly safeguard his right to be presumed innocent. Although his innocence could be doubted,
for his reputation in his community might not be lily-white or lustrous, he should not fear a conviction
for any crime, least of all one as grave as drug pushing, unless the evidence against him was clear,
competent and beyond reasonable doubt. Otherwise, the presumption of innocence in his favor
would be rendered empty.

WHEREFORE, the Court REVERSES and SETS ASIDE the decision promulgated on February 11,
2008; ACQUITS accused Pablito Andaya y Reano for failure to prove his guilt beyond reasonable
doubt; and ORDERS his immediate release from confinement at the National Penitentiary in
Muntinlupa City.

The Court DIRECTS that the Director of the Bureau of Corrections to implement the immediate
release of Pablito Andaya y Reano, unless he is confined for any other lawful cause; and to report
his compliance within ten days from receipt.

SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice

SECOND DIVISION

G.R. No. 207993, January 21, 2015

PEOPLE OF THE PHILIPPINES, Appellee, v. GERARDO ENUMERABLE Y DE VILLA, Appellant.

DECISION

CARPIO, J.:

The Case

On appeal is the 31 January 2013 Decision1 of the Court of Appeals in CA-G.R. CR HC No. 04948. The Court
of Appeals affirmed the 15 February 2011 Decision2 of the Regional Trial Court, Branch 12 of Lipa City
convicting appellant Gerardo Enumerable y De Villa for violation of Section 5 of Republic Act No. 9165. cralawred

The Facts

The Information dated 27 August 2004 reads: chanrob lesvi rtua llawli bra ry

That on or about the 27th day of May, 2004 at about 11:30 o’clock in the morning at Petron Gasoline
Station, located at B. Morada Ave., Lipa City, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, without authority of law, did then and there willfully, unlawfully and feloniously
sell, deliver, dispose or give away to a police officer-poseur buyer, 9.88 grams of Methamphetamine
Hydrochloride locally known as “shabu”, a dangerous drug, contained in three (3) plastic sachets.

Contrary to Law.3

Appellant pleaded not guilty to the offense charged.4 Trial ensued.

The prosecution presented two witnesses, namely: Police Officer (PO) 3 Edwalberto Villas and Police
Inspector Danilo Balmes. On the other hand, appellant waived the presentation of any defense evidence.

As found by the trial court, the facts are as follows: chan roblesv irt uallawl ibra ry

From the evidence adduced by the People, the Court finds that based on the information about a deal in
shabu between the asset of PO3 Edwalberto Villas and a certain Gerry of San Pablo City, a buy-bust
operation was conducted by the elements of the Batangas City Police Station with the assistance of Police
Inspector Danilo Balmes of the CIDG Batangas Province on May 27, 2004 at 11:30 o’clock in the morning at
the Petron Gasoline Station along B. Morada Ave., Lipa City.

Using two (2) pieces of marked P500.00 bills and boodle money to make the appearance of about
P24,000.00, the police asset who posed as a buyer transacted with the alias Gerry upon his arrival at the
gas station. After the exchange of the marked money and the three (3) plastic sachets of shabu placed in a
black plastic box, alias Gerry was placed under arrest. He was later identified as Gerardo Enumerable y de
Villa. The marked money was recovered from his possession by PO3 Villas who also took custody of the
specimen shabu which he marked EMV 1 to EMV 3. The three (3) sachets of shabu were turned over to the
Batangas Provincial Crime Laboratory, pursuant to the request for laboratory examination of P/Supt. Fausto
Manzanilla, Jr., Chief of Police, Batangas City PNP on May 27, 2004 at 5:25 p.m. However, that Crime
laboratory indorsed the request with the specimens on June 4, 2004 at 2:30 p.m. to the Regional Crime
Laboratory in Calamba City.

Police Inspector and Forensic Chemist Donna Villa P. Huelgas found the specimens positive for the presence
of methamphetamine hydrochloride, a dangerous drug, as shown by Chemistry Report No. D-566-04, the
authenticity and genuineness of which were admitted by accused during the pre-trial.5

Appellant filed a Comment with Motion for Leave to File Demurrer,6 which motion was denied by the trial
court for appellant’s failure to adduce any reason therefor.7 chanRoble svirtual Lawli bra ry

The trial court found appellant guilty of the offense charged. The dispositive portion of the trial court’s
decision reads:c hanro blesvi rt uallawl ibra ry

WHEREFORE, the Court finds accused GERARDO ENUMERABLE y DE VILLA guilty beyond reasonable doubt
as principal by direct participation of the crime of drug pushing as defined and penalized under Section 5,
Article II of Republic Act [No.] 9165 otherwise known as the Comprehensive Dangerous Drugs Act of 2002
and hereby impose on him the penalty of life imprisonment and to pay a fine of P500,000.00. The 9.88
grams of shabu are hereby ordered destroyed pursuant to the provisions of Section 21(4) and (7) of RA
9165.

The period of detention of the accused shall be deducted in his service of sentence.

Let a commitment order be issued for the transfer of custody of the accused from the BJMP Lipa City to the
National Penitentiary, Muntinlupa City.

SO ORDERED.8

Appellant filed a Notice of Appeal.9 The Court of Appeals affirmed the conviction of appellant for the offense
charged.

Hence, this appeal. cralawre d

The Ruling of the Court of Appeals

In sustaining appellant’s conviction for the offense charged, the Court of Appeals held that the testimony of
PO3 Villas identifying the three plastic sachets of shabu as the same ones seized from appellant rendered
insignificant appellant’s allegation that PO3 Villas did not immediately put markings on the three sachets of
shabu at the place of arrest. The Court of Appeals further ruled that the failure of the arresting officers to
conduct a physical inventory and to take photographs of the seized items is not fatal as long as the integrity
and evidentiary value of the seized items are properly preserved, as in this case.

According to the Court of Appeals, the prosecution was able to prove the unbroken chain of custody of the
prohibited drug from the time PO3 Villas confiscated the plastic sachets from appellant and marked them at
the place of arrest, to the time PO3 Villas brought the plastic sachets to the police station and turned them
over to the investigator on-duty until the time SPO1 de Castro submitted the marked plastic sachets to the
Regional Crime Laboratory Office Calabarzon for laboratory examination. cralawred

The Issue

The issue boils down to whether the prosecution established the identity and integrity of the confiscated
illegal drug, which is the corpus delicti of the offense charged against appellant. cralawred

The Ruling of the Court

We grant the appeal.

While appellant waived the presentation of evidence for his defense, he disputes the identity and integrity of
the illegal drug which is the corpus delicti of the offense charged against him. Appellant maintains that the
prosecution failed to prove the unbroken chain of custody of the illegal drug which gravely impairs its
identity. Without the identity of the corpus delicti being sufficiently established, appellant claims that he
should be acquitted.

It is settled that in prosecutions for illegal sale of dangerous drug, not only must the essential elements of
the offense be proved beyond reasonable doubt, but likewise the identity of the prohibited drug. The
dangerous drug itself constitutes the corpus delicti of the offense and the fact of its existence is vital to a
judgment of conviction.10 chanRoble svi rtual Lawli bra ry
Necessarily, the prosecution must establish that the substance seized from the accused is the same
substance offered in court as exhibit. In this regard, the prosecution must sufficiently prove the unbroken
chain of custody of the confiscated illegal drug. In People v. Watamama,11 the Court held: cha nrob lesvi rtua llawlib ra ry

In all prosecutions for the violation of the Comprehensive Dangerous Drugs Act of 2002, the existence of the
prohibited drug has to be proved. The chain of custody rule requires that testimony be presented
about every link in the chain, from the moment the item was seized up to the time it is offered in
evidence. To this end, the prosecution must ensure that the substance presented in court is the same
substance seized from the accused.

While this Court recognizes substantial adherence to the requirements of R.A. No. 9165 and its
implementing rules and regulations, not perfect adherence, is what is demanded of police officers attending
to drugs cases, still, such officers must present justifiable reason for their imperfect conduct and show that
the integrity and evidentiary value of the seized items had been preserved. x x x. (Emphasis supplied)

In People v. Climaco,12 citing Malillin v. People,13 the Court held: cha nrob lesvi rtua llawlib ra ry

x x x [T]o establish guilt of the accused beyond reasonable doubt in cases involving dangerous drugs, it is
important that the substance illegally possessed in the first place be the same substance offered in court as
exhibit. This chain of custody requirement ensures that unnecessary doubts are removed concerning the
identity of the evidence. When the identity of the dangerous drug recovered from the accused is not the
same dangerous drug presented to the forensic chemist for review and examination, nor the same
dangerous drug presented to the court, the identity of the dangerous drug is not preserved due to the
broken chain of custody. With this, an element in the criminal cases for illegal sale and illegal possession of
dangerous drugs, the corpus delicti, is not proven, and the accused must then be acquitted based on
reasonable doubt. For this reason, [the accused] must be acquitted on the ground of reasonable doubt due
to the broken chain of custody over the dangerous drug allegedly recovered from him.

In this case, there was a glaring gap in the custody of the illegal drug since the prosecution failed to
sufficiently establish who had custody of the illegal drug from the moment it was allegedly transmitted to
the Batangas Provincial Crime Laboratory on 27 May 2004 until it was allegedly delivered to the Regional
Crime Laboratory on 4 June 2004. There was no evidence presented how the confiscated sachets of shabu
were stored, preserved or labeled nor who had custody prior to their delivery to the Regional Crime
Laboratory and their subsequent presentation before the trial court. This is evident from the testimony of
PO3 Villas, who stated he had no knowledge on who had custody of the sachets of shabu from 27 May 2004
until 4 June 2004. PO3 Villas testified thus: chan roble svirtual lawlib rary

Q But when the accused was arrested on May 27, 2004, records will
show that the specimen was submitted to the crime laboratory on
June 4, 2004 which is practically several days after. Am I right?
A It was turned over to the duty investigator.
Q Who brought the specimen to the crime laboratory?
A I don’t know from the duty investigator, sir.
Q So you are not aware who brought the specimen to the crime
laboratory?
A Yes, sir.
Q But between May 27 and June 4, 2004, who was in custody of the
specimen?
A I turned it over to the duty investigator, sir.
Q On what date?
A On May 27 after we turned over the suspect to the investigator, sir.
Q So your statement which says that the accused was released simply
because the specimen or the result of the examination … would not
catch up with the investigation is not correct because you have not
submitted immediately the specimen to the crime laboratory?
COURT
Q Because it was submitted seven (7) days after the apprehension?
A I was not the one who is concerned with the submission of
the specimen to the crime laboratory. We turned it over to the
duty investigator and the duty investigator marked the specimen,
Your Honor.
ATTY. GAJITOS
Q But you will agree that the specimen was submitted to the crime
laboratory by your investigator only on June 4, 2004 or practically a
week after the apprehension?
A I don’t know, sir. It is only now that I came to know,
sir.14 (Emphasis supplied)
The prosecution attempted to fill the gap in the chain of custody. However, such effort proved futile. On re-
direct examination, PO3 Villas, who earlier testified that he had no knowledge on who had custody of the
illegal drugs prior and during their delivery to the crime laboratories, merely restated the contents of the 3
June 2004 Memorandum from the Chief of the Batangas Police addressed to the Regional Chief,
corresponding to the questions of the prosecutor. In other words, PO3 Villas testified on a piece of
document he had no participation in the preparation or execution thereof. PO3 Villas testified as follows:c hanroblesv irt uallawl ibra ry

CROSS-EXAMINATION OF ATTY. GAJITOS

Q Do you admit there are no significant markings on this black box for
possession or identification more particularly the signature or initial
of the arresting officer?
A No, sir.
ATTY. GAJITOS
No further question, Your Honor.
COURT
Re-direct.
PROSECUTOR
Q During your cross-examination, you were asked regarding the fact as
a reply to the question of the defense it was after 7 days that the
specimen was actually brought to the laboratory for examination,
your answer that was correct?
A Yes, ma’am.
Q I am showing to you a document, the indorsement which came from
the Office of the Chief of Police of Batangas City dated May 27, 2004,
can you please go over the same and tell the Court what is the
 relevance of that document regarding the delivery of specimen to the
crime laboratory?
A This is the request prepared by our investigator dated May 27 in
relation to the arrest of Gerardo Enumerable wherein the subject
were three (3) plastic sachets of shabu, it was delivered to Batangas
Provincial Crime Laboratory on the same date, ma’am.
Q How did you come to know it was delivered on the same date?
A There was a stamp receipt by the Provincial Crime Laboratory office
delivered by SPO1 De Castro and received by PO3 Llarena at
Batangas Provincial Crime Laboratory, ma’am.
Q You likewise identified during the direct examination chemistry report
coming from Camp Vicente Lim, how would you reconcile the fact the
specimen was delivered to the Provincial Crime Laboratory and the
result came from Camp Vicente Lim?
A It was the Provincial Crime Laboratory of Batangas PPO who made
the indorsements from Batangas Provincial Police Office to the Crime
Laboratory, Camp Vicente Lim, ma’am.
Q Do you have proof to show that fact?
A Yes, ma’am.
Q What is that?
A Letter request made by the Batangas Crime Laboratory to the Crime
Laboratory, Camp Vicente Lim, ma’am.
Q This is the same request made by the Batangas Provincial Crime
Laboratory addressed to Regional Crime Laboratory, was there a
proof to show that the specimen together with the indorsement was
actually received by the Crime Laboratory Camp Vicente Lim.
A Yes, there was a stamp of the Regional Crime Laboratory office
delivered by PO3 Vargas and received by PO3 Macabasco of the
Regional Crime Laboratory, ma’am.
Q What date?
A It was delivered on June 3 and the specimen was received on June 4,
ma’am.
Q Why was it necessary for your office to deliver the specimen to the
Provincial Crime Laboratory, why not directly to the Crime Laboratory
of Camp Vicente Lim?
A During that time there was no chemist who examined the specimen
in the Provincial Crime Laboratory so what they did was they
delivered the specimen to the Regional Crime Laboratory, ma’am.
Q My question is, why not deliver it directly to Camp Vicente Lim?
A The PNP during that time did not have any budget, ma’am.
Q How much would it need to deliver the specimen?
A It was cheap, sir. The problem was that the Provincial Crime
Laboratory did not have any chemist, they delivered the specimen to
the Regional Crime Laboratory that is why there are many accused
who remained at large, ma’am.
xxxx
Q Who brought the specimen to the PNP Crime Laboratory?
A The officer on duty, Your Honor.
Q From Batangas to Camp Vicente Lim, do you know the officer?
A The person who delivered there, it is stated in the document,
Your Honor.
Q Who was in custody of this specimen from Batangas PNP to
the Provincial Crime Laboratory?
A The officer, Your Honor.15 (Emphasis supplied)
Clearly, PO3 Villas had no personal knowledge on (1) how the illegal drugs were delivered and who delivered
the drugs from the Batangas Provincial Crime Laboratory to the Regional Crime Laboratory; (2) who
received the drugs in the Regional Crime Laboratory; and (3) who had custody of the drugs from 27 May
2004 to 3 June 2004 until their presentation before the trial court. The testimony of PO3 Villas merely
attests to the existence of the Memorandum from the Chief of the Batangas Provincial Crime Laboratory to
the Regional Crime Laboratory.

While appellant admitted during the pre-trial the authenticity and due execution of the Chemistry Report,
prepared by Police Inspector and Forensic Chemist Donna Villa P. Huelgas, this admission merely affirms
the existence of the specimen and the request for laboratory examination and the results
thereof. Appellant’s admission does not relate to the issue of chain of custody. In fact, appellant qualified
his admission that the specimens were not taken or bought from him.16 In People v. Gutierrez, the Court
stated:chanrob lesvi rtua llawli bra ry

x x x That the defense stipulated on these matters,viz: that the specimen exists, that a request has been
made by the arresting officers for examination thereof, that a forensic chemist examined it, and that it
tested positive for methylamphetamine hydrochloride has no bearing on the question of chain of
custody. These stipulations, which merely affirm the existence of the specimen, and the request for
laboratory examination and the results thereof, were entered into during pre-trial only in order to dispense
with the testimony of the forensic chemist and abbreviate the proceedings. x x x.17

Since the failure of the prosecution to establish every link in the chain of custody of the illegal drug gravely
compromised its identity and integrity, which illegal drug is the corpus delicti of the offense charged against
appellant, his acquittal is therefore in order. chan rob leslaw

WHEREFORE, we GRANT the appeal and ACQUIT appellant Gerardo Enumerable y De Villa based on
reasonable doubt and we ORDER his immediate release from detention, unless he is detained for any other
lawful cause.

SO ORDERED. cralawlawlibra ry

Velasco, Jr.,* Del Castillo, Mendoza, and Leonen, JJ., concur.

G.R. No. 200748 July 23, 2014

JAIME D. DELA CRUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

SERENO, CJ:

This is a Petition for Review on Certiorari, filed by petitioner Jaime D. dela Cruz, from the
Decision1 dated 22 June 2011 issued by the Twentieth Division of the Court of Appeals (CA) and
Resolution2 dated 2 February 2012 issued by the Former Twentieth Division of the CA in CA-G.R.
C.R. No. 00670.

THE ANTECEDENT FACTS

Petitioner Jaime D. dela Cruz was charged with violation of Section 15, Article II of Republic Act No.
(R.A.) 9165, or The Comprehensive Dangerous Drugs Act of 2002, by the Graft Investigation and
Prosecution Officer of the Office of the Ombudsman - Visayas, in an Information3 dated 14 February
2006, which reads:

That on or about the 31st day of January 2006, at Cebu City, Philippines, and within the jurisdiction
of this Honorable Court, the abovenamed accused, JAIME D. DE LA CRUZ, a public officer, having
been duly appointed and qualified to such public position as Police Officer 2 of the Philippine
National Police (PNP) assigned in the Security Service Group of the Cebu City Police Office, after
having beenarrested by agents of the National Bureau of Investigation (NBI) in an entrapment
operation, was found positive for use of METHAMPHETAMINE HYDROCHLORIDEcommonly
known as "Shabu", the dangerous drug after a confirmatory test conducted on said accused.

CONTRARY TO LAW.

When arraigned, petitioner, assisted by counsel de parte, pleaded not guilty to the charge. The
records do not reveal whether De la Cruz was likewise charged for extortion.

VERSION OF THE PROSECUTION

The evidence of the prosecution reveals that at 8:00 a.m. of 31 January 2006, the agents and
special investigators of the National Bureau of Investigation, Central Visayas Regional Office (NBI-
CEVRO) or simply NBI, received a Complaint from Corazon Absin (Corazon) and Charito Escobido
(Charito). The complainants claimed that at 1:00 a.m. of that same day, Ariel Escobido (Ariel), the
live-in partner of Corazon and son of Charito, was picked up by several unknown male persons
believed to be police officers for allegedly selling drugs. An errand boy gave a number to the
complainants, and when the latter gave the number a ring, they were instructed to proceed to the
Gorordo Police Office located along Gorordo Avenue, Cebu City. In the said police office, they met
"James" who demanded from them P100,000, later lowered to P40,000, in exchange for the release
of Ariel. After the meeting, the complainants proceeded to the NBI-CEVRO to file a complaint and
narrate the circumstances of the meeting to the authorities. While at the NBI-CEVRO, Charitoeven
received calls supposedly from "James" instructing her to bring the money as soon as possible.

The special investigators at the NBI-CEVRO verified the text messages received by the
complainants. A team was immediately formed to implement an entrapment operation, which took
1âwphi 1

place inside a Jollibee branch at the corner of Gen. Maxilom and Gorordo Avenues, Cebu City. The
officers were able to nab Jaime dela Cruz by using a pre-marked 500 bill dusted with fluorescent
powder, which was made part of the amount demanded by "James" and handed by Corazon.
Petitioner was later brought to the forensic laboratory of the NBI-CEVRO where forensic examination
was done by forensic chemist Rommel Paglinawan. Petitioner was required to submit his urine for
drug testing. It later yielded a positive result for presence of dangerous drugs as indicated in the
confirmatory test result labeled as Toxicology (DangerousDrugs) Report No. 2006-TDD-2402 dated
16 February 2006.

VERSION OF THE DEFENSE

The defense presented petitioner as the lone witness. He denied the charges and testified that while
eating at the said Jollibee branch, he was arrested allegedly for extortion by NBI agents. When he
was at the NBI Office, he was required to extract urine for drug examination, but he refused saying
he wanted it to be done by the Philippine National Police (PNP) Crime Laboratory and not by the
NBI. His request was, however, denied. He also requested to be allowed to call his lawyer prior to
the taking of his urine sample, to no avail.

THE RULING OF THE RTC

The Regional Trial Court (RTC) Branch 58 of Cebu City, in its Decision4 dated 6 June 2007, found
the accused guilty beyond reasonable doubt of violating Section 15, Article II of R.A. 9165 and
sentenced him to suffer the penalty of compulsory rehabilitation for a period of not less than six (6)
months at the Cebu Center for the Ultimate Rehabilitation of Drug Dependents located at Salinas,
Lahug, Cebu City.5

Petitioner filed an appeal assigning as error the RTC’s validation of the result of the urine test
despite its dubiousness having been admitted in spite of the lack of legal basis for itsadmission.
First, he alleges that the forensic laboratory examination was conducted despite the fact that he was
not assisted by counsel, in clear violation of his constitutional right. Secondly, he was allegedly held
guilty beyond reasonable doubt notwithstanding the lack of sufficient basis to convict him.

THE RULING OF THE CA

The CA found the appeal devoid of merit and affirmed the ruling of the RTC.

Petitioner filed a timely Motion for Reconsideration. He argued that the CA overlooked prevailing
jurisprudence, which states that drug testing conducted under circumstancessimilar to his would
violate a person’s right to privacy. The appellate court nevertheless denied the motion.

Petitioner thus filed the present Petition for Review on certiorari. He assigns as errors the use of
hearsay evidence as basis for his conviction and the questionable circumstances surrounding his
arrest and drug test.

Respondent, through the Office of the Solicitor General, filed its Comment,6 saying that "petitioner’s
arguments cannot be the subject of a petition for review on certiorariunder Rule 45, as they involve
questions of facts which may not be the subject thereof; after his arraignment, he can no longer
contest the validity of his arrest, less so at this stage of the proceedings; his guilt has been
adequately established by direct evidence; and the manner in which the laboratory examination was
conducted was grounded on a valid and existing law.

THE ISSUE
We deem it proper to give due course to this Petition by confronting head-on the issue of whether or
not the drug test conducted upon the petitioner is legal.

OUR RULING

We declare that the drug testconducted upon petitioner is not grounded upon any existing law or
jurisprudence.

We gloss over petitioner’s non-compliance with the Resolution7 ordering him to submit clearly legible
duplicate originals or certified true copies of the assailed Decision and Resolution. Petitioner was
charged with use of dangerous drugs in violation of the law, the pertinent provision of which reads:

Section 15. Use of Dangerous Drugs. – A person apprehended or arrested, who is found to be
positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a
minimum of six (6) months rehabilitation in a government center for the first offense, subject to the
provisions of Article VIII of this Act. If apprehended using any dangerous drug for the second time,
he/she shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve
(12) years and a fine ranging from Fifty thousand pesos (P50,000.00) to Two hundred thousand
pesos (P200,000.00): Provided,That this Section shall not be applicable where the person tested is
also found to have in his/her possession such quantity of any dangerous drug provided for under
Section 11 of this Act, in which case the provisions stated therein shall apply.8

The RTC subsequently convicted petitioner, ruling that the following elements of Section 15 were
established: (1) the accused was arrested; (2) the accused was subjected to drug test; and (3) the
confirmatory test shows that he used a dangerous drug.

Disregarding petitioner’s objection regarding the admissibility of the evidence, the lower court also
reasoned that "a suspect cannot invoke his right to counsel when he is required to extract urine
because, while he is already in custody, he is not compelled to make a statement or testimony
against himself. Extracting urine from one’s body is merely a mechanical act, hence, falling outside
the concept of a custodial investigation."

We find the ruling and reasoning of the trial court, as well as the subsequent affirmation by the CA,
erroneous on three counts.

The drug test in Section 15 does not cover persons apprehended or arrested for any unlawful act,
but only for unlawful acts listed under Article II of R.A. 9165.

First, "[a] person apprehended orarrested" cannot literally mean any person apprehended or
arrested for any crime.The phrase must be read in context and understood in consonance with R.A.
9165. Section 15 comprehends persons arrested or apprehended for unlawful acts listed under
Article II of the law.

Hence, a drug test can be made upon persons who are apprehended or arrested for, among others,
the "importation,"9 "sale, trading, administration, dispensation, delivery, distribution and
transportation",10"manufacture"11 and "possession"12 of dangerous drugs and/or controlled precursors
and essential chemicals; possession thereof "during parties, social gatherings or meetings"13 ; being
"employees and visitors of a den, dive or resort";14 "maintenance of a den, dive or resort";15 "illegal
chemical diversion of controlled precursors and essential chemicals"16 ; "manufacture or delivery"17 or
"possession"18 of equipment, instrument, apparatus, and other paraphernalia for dangerous drugs
and/or controlled precursors and essential chemicals; possession of dangerous drugs "during
parties, social gatherings or meetings"19 ; "unnecessary"20 or "unlawful"21 prescription thereof;
"cultivation or culture of plantsclassified as dangerous drugs or are sources thereof";22 and
"maintenance and keeping of original records of transactions on dangerous drugs and/orcontrolled
precursors and essential chemicals."23 To make the provision applicable to all persons arrested or
apprehended for any crime not listed under Article II is tantamount to unduly expanding its meaning.
Note thataccused appellant here was arrested in the alleged act of extortion.

A charge for violation of Section 15 of R.A. 9165 is seen as expressive of the intent of the law to
rehabilitate persons apprehended or arrested for the unlawful acts enumerated above instead of
charging and convicting them of other crimes with heavier penalties. The essence of the provision is
more clearly illustrated in People v. Martinez24 as follows:

On a final note, this Court takes the opportunity to be instructive on Sec. 11 (Possession of
Dangerous Drugs) and Sec. 15 (Use of Dangerous Drugs) of R.A. No. 9165, withregard 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 withthe intent of the law to file charges under
Sec. 15 instead in order to rehabilitate first time offenders of drug use, provided thatthere 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 isimprisonment 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 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). Sec. 14 provides that the maximum penalty under Sec.
12(Possession of Equipment, 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 facieevidence 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 isonly 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. (Emphasis supplied)

Furthermore, making the phrase "a person apprehended or arrested" in Section 15 applicable to all
persons arrested or apprehended for unlawful acts, not only under R.A. 9165 but for all other crimes,
is tantamount to a mandatory drug testing of all persons apprehended or arrested for any crime. To
overextend the application of thisprovision would run counter to our pronouncement in Social Justice
Society v. Dangerous Drugs Board and Philippine Drug Enforcement Agency,25 to wit:
x x x [M]andatory drug testing can never be random and suspicionless. The ideas of randomness
and being suspicionless are antithetical to their being made defendants in a criminal complaint. They
are not randomly picked; neither are they beyond suspicion. When persons suspected of committing
a crime are charged, they are singled out and are impleaded against their will. The persons thus
charged, by the bare fact of being haled before the prosecutor’s office and peaceably submitting
themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone
waive their right to privacy. To impose mandatory drug testing on the accused is a blatant attempt to
harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA
6195. Drug testing in this case would violate a person’s right to privacy guaranteed under Sec. 2,
Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate
themselves. (Emphasis supplied)

The drug test is not covered by allowable non-testimonial compulsion.

We find that petitioner never raisedthe alleged irregularity of his arrest before his arraignment and
raises the issue only now before this tribunal; hence, he is deemed to have waived his right to
question the validity of his arrest curing whatever defect may have attended his arrest.26 However, "a
waiver of an illegal warrantless arrest does not mean a waiver of the inadmissibility of evidence
seized during an illegal warrantless arrest."27

We are aware of the prohibition against testimonial compulsion and the allowable exceptions to such
proscription. Cases where non-testimonial compulsion has been allowed reveal, however, that the
pieces of evidence obtained were all material to the principal cause of the arrest.

The constitutional right of an accused against self-incrimination proscribes the use of physical or
moral compulsion to extort communications from the accused and not the inclusion of his body in
evidence when it may be material. Purely mechanical acts are not included in the prohibition as the
accused does not thereby speak his guilt, hence the assistance and guiding hand ofcounsel is not
required. (People vs. Olvis, 238 Phil. 513 [1987]) The essence of the right against selfincrimination is
testimonial compulsion, that is, the giving of evidence against himself through a testimonial act.
(People vs. Casinillo, 213 SCRA 777 [1992]; People vs. Tranca, 235 SCRA 455 [1994]; People vs.
Rondero, 378 Phil. 123 [1999]) Hence,it has been held that a woman charged with adultery may be
compelled to submit to physical examination to determine her pregnancy; (Villaflor vs. Summers, 41
Phil. 62 [1920]) and an accused may be compelled to submit to physical examination and to have a
substance taken from his body for medical determination as to whether he was suffering from
gonorrhea which was contracted by his victim;(U.S. vs. Tan Teng, 23 Phil. 145 [1912]) to expel
morphine from his mouth; (U.S. vs. Ong Siu Hong, 36 Phil. 735 [1917]) to have the outline of his foot
traced todetermine its identity with bloody footprints; (U.S. vs. Salas, 25 Phil. 337 [1913]; U.S. vs.
Zara, 42 Phil. 308 [1921]) and to be photographed or measured, or his garments or shoes removed
or replaced, or to move his body to enable the foregoing things to be done.(People vs. Otadora, 86
Phil. 244 [1950])28 (Emphasis supplied)

In the instant case, we fail to see howa urine sample could be material to the charge of
extortion. The RTC and the CA, therefore, both erred when they held that the extraction of
1âwphi 1

petitioner’s urine for purposes of drug testing was "merely a mechanical act, hence, falling outside
the concept of a custodial investigation."

We note a case where a urine sample was considered as admissible. In Gutang v. People,29 the
petitioner therein and his companions were arrested in connection with the enforcement of a search
warrant in his residence. A PNP-NARCOM team found and confiscated shabu materials and
paraphernalias. The petitioner and his companions in that case were also asked to give urine
samples, which yielded positive results. Later, the petitioner therein was found guilty of the crime of
illegal possession and use of prohibited drugs. Gutang claimed that the latter’s urine sample was
inadmissible in evidence, since it was derived in effect from an uncounselled extrajudicial
confession.

In the Gutang et al.case, the Court clarified that "what the Constitution prohibits is the use of physical
or moral compulsion to extort communication from the accused, but not an inclusion of his body in
evidence, when it may be material." The situation in Gutangwas categorized as falling among the
exemptions under the freedom from testimonial compulsion since what was sought tobe examined
came from the body of the accused. The Court said:

This was a mechanical act the accused was made to undergo which was not meant to unearth
undisclosedfacts but to ascertain physical attributes determinable by simple observation. In fact, the
record shows that petitioner and his co-accused were not compelled to give samples of their urine
but they in fact voluntarily gave the same when they were requested to undergo a drug test.

Assuming arguendothat the urine samples taken from the petitioner are inadmissible in evidence, we
agree with the trial court that the record is replete with other pieces of credible evidence including
the testimonial evidence of the prosecution which point to the culpability of the petitioner for the
crimes charged.

We emphasize that the circumstances in Gutangare clearly different from the circumstances of
petitioner in the instant case. First, Gutang was arrested in relation to a drug case. Second, he
1aw p++i1

volunteered to give his urine. Third, there were other pieces of evidence that point to his culpability
for the crimes charged. In the present case, though, petitioner was arrested for extortion; he resisted
having his urine sample taken; and finally, his urine sample was the only available evidencethat was
used as basis for his conviction for the use of illegal drugs.

The drug test was a violation of petitioner’s right to privacy and right against self-incrimination.

It is incontrovertible that petitioner refused to have his urine extracted and tested for drugs. He also
asked for a lawyer prior to his urine test. He was adamant in exercising his rights, but all of his
efforts proved futile, because he was still compelled to submit his urine for drug testing under those
circumstances.

The pertinent provisions in Article III of the Constitution are clear:

Section 2. The right of the people to be securein 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.

Section 17. No person shall be compelled to be a witness against himself.

In the face of these constitutional guarantees, we cannot condone drug testing of all arrested
persons regardless of the crime or offense for which the arrest is being made.

While we express our commendation of law enforcement agents as they vigorously track down
offenders intheir laudable effort to curb the pervasive and deleterious effects of dangerous drugs on
our society, they must, however, be constantly mindful of the reasonable limits of their authority,
because it is not unlikely that in their clear intent to purge society of its lawless elements, they may
be knowingly or unknowingly transgressing the protected rights of its citizens including even
members of its own police force.

WHEREFORE, premises considered, the assailed Decision dated 22 June 2011 issued by the
Twentieth Division, and the Resolution dated 2 February 2012 issued by the former Twentieth
Division of the Court of Appeals, in CA-G.R. C.R. No. 00670 are SET ASIDE. Petitioner is hereby
ACQUITTED.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Chief Justice, Chairperson

WE CONCUR:

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

LUCAS P. BERSAMIN MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

BIENVENIDO L. REYES
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

THIRD DIVISION

G.R. No. 218578, August 31, 2016

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ENRICO BRIONES BADILLA, Accused-Appellant.

DECISION

PERALTA, J.:

This is an appeal from the Decision1 dated March 27, 2015 of the Court of Appeals in CA-G.R. CR-HC No.
06354 affirming the Decision2 dated September 9, 2013 of the Regional Trial Court (RTC) of Caloocan City,
Branch 127, in Criminal Case No. C-84868, finding herein appellant Enrico Briones Badilla guilty beyond
reasonable doubt of Violation of Section 11, Article II of Republic Act No. (R.A. No.) 9165, otherwise known
as the Comprehensive Dangerous Drugs Act of 2002.3 chan robles law
In an Information4 dated September 9, 2010, appellant was charged with violation of Section 11, Article II
of R.A. No. 9165 which reads as follows: ChanRobles Vi rtualawl ib rary

That on or about the 6th day of September 2010 in Caloocan City, Metro Manila and within the jurisdiction of
this Honorable Court, the above-named accused, without authority of law, did then and there willfully,
unlawfully and feloniously have in his possession, custody and control One (1) small heat-sealed transparent
plastic sachet containing METHYLAMPHETAMINE HYDROCHLORIDE (Shabu) weighing 7.75 grams, which
when subjected for laboratory examination gave POSITIVE result to the test of Methyl amphetamine
Hydrochloride, a dangerous drug, in gross violation of the above-cited law.
Upon arraignment, accused pleaded not guilty5 to the offense charged. After pre-trial, trial on the merits
ensued.

The prosecution's evidence consists of the testimonies of (1) PO2 Borban Paras, the one who arrested
appellant and seized the illegal drug from him; (2) PO2 Rafael Espadero, the one who received the marked
specimen from PO2 Paras; (3) PO2 Eduardo Ronquillo, one of PO2 Paras' companions during the arrest of
accused; and (4) P/Sr. Insp. Margarita Mamotos-Libres, the forensic chemist who examined the specimen
seized from the appellant. The testimonies of PO2 Espadero, PO2 Ronquillo and P/Sr. Insp. Libres were
abbreviated due to the stipulations entered into by the prosecution and the defense.6 The evidence of the
prosecution may be summed up as follows: On September 6, 2010, around 10:15 p.m., PO2 Paras received
a phone call from a concerned citizen informing him that someone was indiscriminately firing a gun at BMBA
Compound, 4th Avenue, Caloocan City. PO2 Paras and his companions, PO2 Ronquillo, PO3 Baldomero and
PO2 Woo, responded to the call and reached the target area around 10:25 p.m.7 There they saw a male
person, later identified as appellant Enrico Briones Badilla, standing along the alley. Appellant was
suspiciously in the act of pulling or drawing something from his pocket; thus, as a precautionary measure,
and thinking that a concealed weapon was inside his pocket, PO2 Paras immediately introduced himself as a
police officer, held appellant's arm, and asked the latter to bring out his hand from his pocket.8 It turned out
that appellant was holding a plastic sachet with white crystalline substance. PO2 Paras confiscated the
plastic sachet from appellant, informed him of his constitutional rights, and arrested him. Appellant and the
confiscated plastic sachet were brought to the Station Anti-Illegal Drags-Special Operation Task Group
(SAID-SOTG) Office where PO2 Paras marked the plastic sachet with "BP/EBB 07 Sept 2010."9 chanrob leslaw

Thereafter, PO2 Paras turned-over appellant and the seized item to PO2 Espadero who placed the seized
item in a much bigger plastic sachet which the latter marked with "SAID-SOTG EVIDENCE 07-Sept
2010."10 PO2 Espadero then prepared a Request for Laboratory Examination11 of the seized item, dated
September 7, 2010, and another request for drug test on the urine sample taken from appellant. These
requests were both signed by P/Chief Insp. Bartolome Tarnate. PO2 Espadero transmitted the requests and
the specimen to the Northern Police District Crime Laboratory Office, where duty desk officer PO1 Pataweg
received and recorded the same in his logbook. PO1 Pataweg, in the presence of PO2 Espadero, turned-over
the requests and the specimen to P/Sr. Insp. Libres for laboratory examination.12 chanrobles law

The white crystalline substance was found positive for methylamphetamine hydrochloride, a dangerous drag,
per Physical Science Report No. D-246-10,13 while the urine sample taken from appellant was found positive
for methylamphetamine, per Physical Evidence Report No. DT-250-10. Upon completion of the laboratory
examination on the seized item, P/Sr. Insp. Libres marked the plastic sachet with "A" MML, countersigned it,
and placed it in a brown envelope where she also wrote her initials "MML" and placed the markings "D-246-
10,"14 then she deposited the envelope containing the seized item to the evidence custodian of their office
and later retrieved the same for presentation in court.

The defense, on the other hand, presented appellant as its sole witness and offered a different version of
what transpired on the day of the arrest. Appellant narrated that on September 6, 2010, around 10:30 in
the evening, he was walking along 4th Avenue, Caloocan City when a male person called him. Recognizing
the man as a police officer who frequented their place, he approached the man. When he got near the man,
the latter's companion poked a gun at him. By instinct, he shoved the gun away and it fell on the ground.15 c hanro bles law

According to appellant, the police officer then arrested him, shoved him aboard the police vehicle, and
brought him to 3rd Avenue, Caloocan City. When the police officers failed to see their target person at the
said place, they left and went to the police station where he was told that he would be charged with a non-
bailable offense. He only saw the plastic sachet containing shabu in court. He denied the accusations against
him and stated that he was arrested because the police officers thought he would fight back when he shoved
the police officer's gun. The police officers asked P20,000.00 from him allegedly because they knew that his
father had a junk shop business, but he refused to give them money. He questioned the positive result of
the drug test because allegedly no examination was conducted on his person.16 chan robles law

In its Decision dated September 9, 2013, the RTC held appellant guilty beyond reasonable doubt of the
offense charged. The dispositive portion of which reads: ChanRobl esVi rtua lawlib rary

WHEREFORE, premises considered, the prosecution having proved the guilt of the accused Enrico Briones
Padilla beyond reasonable doubt, he is hereby sentenced to suffer the penalty of imprisonment of Twenty
(20) years and one (1) day to life imprisonment and a fine of Four Hundred Thousand Pesos (P400,000.00)
in accordance with Section 11 sub-section 2 of Art. II, R.A. 9165, otherwise known as the "Dangerous Drugs
Act of 2002".

The drugs subject of this case is hereby ordered confiscated in favor of the government to be dealt with in
accordance with law.17 chanroblesv irtuallawl ib rary

Aggrieved, appellant appealed the aforesaid Decision to the Court of Appeals via a Notice of Appeal.

On March 27, 2015, the CA affirmed the appellant's conviction but with modification as to the penalty
imposed. The decretal portion of the Decision reads, thus: ChanRobles Vi rtualaw lib rary

ACCORDINGLY, the appeal is DENIED and the Decision dated September 9, 2013 is AFFIRMED with
MODIFICATION of the prison term which is hereby fixed at 20 years and 1 day.18 chanroblesv irt uallaw libra ry

Still unsatisfied, appellant elevated the aforesaid Decision of the CA to this Court via a Notice of Appeal.

In a Resolution19 dated July 22, 2015, this Court required the parties to simultaneously submit their
respective supplemental briefs if they so desire, but both parties manifested that they are no longer filing a
supplemental brief.

In his Brief,20 appellant raised the following assignment of errors: ChanRoble sVirtualawl ibra ry

I.

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME CHARGED
DESPITE THE EXISTING DOUBT AND PATENT ILLEGALITY WHICH ATTENDED HIS ARREST.

II.

THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE PROSECUTION'S
EVIDENCE NOTWITHSTANDING ITS FAILURE TO PROVE THE IDENTITY AND INTEGRITY OF THE ALLEGED
SEIZED SHABU.

III

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE
PROSECUTION'S FAILURE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.
On the first error, appellant argues that there was no basis for his apprehension because there was no prior
knowledge that he was the suspect in the alleged indiscriminate firing incident and that there was no
mention that he executed an overt act reflecting any intention to commit a crime. Also, there was no
testimony that he had just committed an offense, such that, it cannot be said that PO2 Paras had any
immediate justification for subjecting him to any search. Thus, the shabu may not be utilized as evidence to
sustain his conviction.

On the second error, appellant submits that the failure to mark the seized item right away is a violation of
the chain of custody rule as mandated by Section 21 of the Implementing Rules and Regulations of RA 9165.
There was no immediate conduct of a physical inventory and the seized item was not photographed in the
presence of appellant or counsel, or of a representative from the media, and the Department of Justice, and
any elected public official who shall be required to sign copies of the inventory. Appellant avers that there is
no absolute certainty that it was the same drug item that was allegedly recovered from him, and there was
also no justifiable ground warranting the exception to the chain of custody rule.

On the third error, appellant contends that failure to comply wit chain of custody rule negates the
presumption that official duties had regularly performed by the police officers.

We dismiss the appeal.

First Issue: Legality of Arrest

We stress, at the outset, that appellant failed to question the legality of his arrest before he entered his
plea. 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 court's acquisition of jurisdiction over the person of an accused
must be made before he enters his plea; otherwise, the objection is deemed waived.21 Thus, appellant is
deemed to have waived any objection thereto since he voluntarily submitted himself to the jurisdiction of
the court when he entered a plea of not guilty during the arraignment, and thereafter actively participated in
the trial. He even entered into a stipulation, during the pre-trial of the case, admitting the jurisdiction of the
trial court over his person.22 c ha nroble slaw

In any event, appellant was arrested during the commission of a crime, which instance does not require a
warrant in accordance with Section 5(a) of Rule 113 of the Revised Rules on Criminal Procedure.23 Such
arrest is commonly known as in flagrante delicto. 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 arresting officer.24 chan rob leslaw

We emphasize that the series of events that led the police officers to the place where appellant was when he
was arrested was triggered by a phone call from a concerned citizen that someone was indiscriminately
firing a gun in the said place. Under the circumstances, the police officers did not have enough time to
secure a warrant considering the "time element" involved in the process. To obtain a warrant would be
impossible to contain the crime. In view of the urgency of the matter, the police officers proceeded to the
place. There, PO2 Paras saw appellant, alone in an alley which used to be a busy place,25 suspiciously in cralaw red

the act of pulling something from his pocket. Appellant's act of pulling something from his pocket constituted
an overt manifestation in the mind of PO2 Paras that appellant has just committed or is attempting to
commit a crime. There was, therefore, sufficient probable cause for PO2 Paras to believe that appellant was,
then and there, about to draw a gun from his pocket considering the report he received about an
indiscriminate firing in the said place. Probable cause means an actual belief or reasonable ground of
suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe
that a crime has been committed or about to be committed.26 chan roble slaw

Thus, thinking there was a concealed weapon inside appellant's pocket and as precautionary measure, PO2
Paras (who was three or four meters away from appellant)27 immediately introduced himself as a police
officer, held appellant's arm, and asked the latter to pull his hand out. Incidentally, appellant was holding a
plastic sachet containing white crystalline substance. PO2 Paras then confiscated the plastic sachet from
appellant, informed him of his constitutional rights, and arrested him. 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.28 And considering that appellant's arrest was legal, the search and seizure that resulted from it
were likewise lawful.29c han robles law

Therefore, We agree with the CA when it adopted the People's disquisition: Cha nRobles Vi rtua lawlib rary

The police officers are completely justified for being at the BMBA compound when appellant was arrested,
since they were merely performing their regular duty of responding to a reported crime. When appellant
was found alone, acting suspiciously in the reported area, PO2 Paras instinctively thought that
appellant was about to pull out a gun or a weapon from his pocket due to a previous report of
indiscriminate firing, that he approached him as a precautionary measure.

xxxx

In the course of the performance of their official duties, the police officers inadvertently recovered from
appellant a plastic sachet of shabu which was voluntarily given by appellant himself. Clearly, the item
recovered from appellant was not a product of illegal search and seizure, because appellant voluntarily
surrendered the drugs in his possession. In short, appellant was not forced or coerced to bring out the
contents of his pocket, thus, the recovery of evidence was appellant's own volition.

Accordingly, appellant was arrested because he was caught in flagrante delicto of the crime of illegal
possession of dangerous drugs, given that mere possession of a prohibited drug already constitutes a
criminal offense.

Appellant's arrest, therefore, was completely justified pursuant to Section 5 (a) of Rule 113 of the Revised
Rules on Criminal Procedure which provides that a person may be arrested without a warrant when in a
presence of the arresting officer, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense.30 chan roblesv irtuallaw lib rary

Second Issue: Compliance with the Chain of Custody Rule

We likewise find untenable the contention of appellant that since the provision of Section 21, Article II of
Republic Act No. 9165 was not strictly complied with, the prosecution failed to prove the identity and
integrity of the seized prohibited drug.

Section 21, paragraph 1, of Article II of Republic Act No. 9165 reads: ChanRobles Vi rtua lawlib rary

Section 21. Custody and disposition of Confiscated, Seized and/or Surrendered Drags, Plant Sources of
Dangerous Drags, controlled precursors and Essentials Chemicals, Instruments/Paraphernalia and/or
Laboratory Equipment. - The PDEA shall take charge and have custody of all dangerous drags, plant sources
of dangerous drags, 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 officer/team having initial custody and control of the drugs shall immediately, after
chanRoble svirtual Lawlib ra ry

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.
Further, Section 21 (a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165
similarly provides that: ChanRobles Vi rt ualawlib ra ry

(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: xxx 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.
In the prosecution of illegal possession of dangerous drugs, the dangerous drug itself constitutes the
very corpus delicti of the offense and, in sustaining a conviction therefor, the identity and integrity of
the corpus delicti must definitely be shown to have been preserved. This requirement necessarily arises from
the illegal drug's unique characteristic that renders it indistinct, not readily identifiable, and easily open to
tampering, alteration or substitution either by accident or otherwise. Thus, to remove any doubt or
uncertainty on the identity and integrity of the seized drug, evidence must definitely show that the illegal
drug presented in court is the same illegal drug actually recovered from the accused-appellant; otherwise,
the prosecution for illegal possession of dangerous drugs under R.A. No. 9165 fails.31 In this regard, the
aforesaid provisions outline the procedure to be observed by the apprehending officers in the seizure and
custody of dangerous drugs.

Under the same proviso, however, 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.32 While
nowhere in the prosecution's evidence would show the "justifiable ground" which may excuse the police
operatives involved from making the physical inventory and taking of photograph of the drug confiscated
and/or seized, such omission shall not render appellant's arrest illegal or the items seized/confiscated from
him as inadmissible in evidence. Said "justifiable ground" will remain unknown in the light of the apparent
failure of appellant to specifically challenge the custody and safekeeping or the issue of disposition and
preservation of the subject drug before the trial court. He cannot be allowed too late in the day to question
the police officers' alleged non-compliance with Section 21 for the first time on appeal.33 chanrobles law

Moreover, the rule on chain of custody under the foregoing enactments expressly demands the identification
of the persons who handled the confiscated items for the purpose of duly monitoring the authorized
movements of the illegal drugs from the time they are seized from the accused until the time they are
presented in court.34 The chain of custody requirement performs the function of ensuring that the integrity
and evidentiary value of the seized items are preserved, so much so that unnecessary doubts as to the
identity of the evidence are removed. To be admissible, the prosecution must show by records or testimony,
the continuous whereabouts of the exhibit at least between the time it came into possession of the police
officers until it was tested in the laboratory to determine its composition up to the time it was offered in
evidence.35 cha nro bleslaw
Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002, implementing R.A. No. 9165,
defines chain of custody as follows: ChanRob les Virtualawl ibra ry

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 use in court as evidence, and the final disposition.
In the case at bench, after PO2 Paras confiscated the plastic sachet with white crystalline substance from
appellant, the same remained in PO2 Paras' possession until appellant and the seized item were brought to
the SAID-SOTG office. Upon reaching the office, PO2 Paras marked the plastic sachet with his initials
"BP/EBB 07 Sept 2010" and turned it over to police investigator PO2 Espadero who, in turn, placed it in a
much bigger plastic sachet and marked the bigger plastic sachet with "SAID-SOTG EVIDENCE 07 Sept
2010". Then, PO2 Espadero prepared a Request for Laboratory Examination dated September 7,
2010.36 Later, PO2 Espadero brought the plastic sachet and the request to the PNP Northern Police District
Crime Laboratory Office where PO1 Pataweg, the duty desk officer, received the same. Thereafter, PO1
Pataweg, in the presence of PO2 Espadero, turned over the requests and specimen for laboratory
examination to P/Sr. Insp. Libres, a forensic chemist. Per Physical Science Report No. D-246-10, the white
crystalline substance was found positive for methylamphetamine hydrochloride, a dangerous drug, while,
per Physical Evidence Report No. DT-250-10, the urine sample taken from appellant was found positive for
methylamphetamine. Upon completion of the laboratory examination on the seized item, P/Sr. Insp. Libres
marked the plastic sachet with "A" MML, countersigned it, and placed it in a brown envelope where she also
wrote her initials "MML" and marked the envelope with "D-246-10". She then deposited the envelope
containing the seized item to the evidence custodian of their office. She later retrieved the same from the
evidence custodian for presentation in court. The Chemistry Report and the subject specimen were
presented in court as evidence, and were properly identified by prosecution witnesses.

Hence, the prosecution was able to demonstrate that the integrity and evidentiary value of the confiscated
drug had not been compromised because it established the crucial link in the chain of custody of the seized
item from the time it was first discovered until it was brought to the court for examination.37 The chain of
custody rule requires the identification of the persons who handled the confiscated items for the purpose of
duly monitoring the authorized movements of the illegal drugs and/or paraphernalia from the time they
were seized from the accused until the time they are presented in court.38 chan robles law

In this case, the facts persuasively proved that the sachet of shabu presented in court was the same item
seized from appellant. The integrity and evidentiary value thereof were duly preserved. The marking and the
handling of the specimen were testified to by PO2 Paras and PO2 Espadero.39During the trial, the
prosecution and the defense entered imto a stipulation that witnesses PO2 Espadero and P/Sr. Insp. Libres
(the forensic chemist) could identify the subject specimen as well as the documents they prepared.40 The
aforesaid witnesses testified about every link in the chain, from the moment the seized item was picked up
to the time it was offered into evidence in court.

To reiterate, We discussed in the case of Mallillin v. People41 how the chain of custody of seized items should
be established, thus: ChanRobles Vi rtua lawlib rary

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
witness1 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 and no opportunity for someone not in the chain to have
possession of the same.42 chanroble svirtual lawlib ra ry

However, while the procedure on the chain of custody should be perfect and unbroken, in reality, it is almost
always impossible to obtain an unbroken chain.43 Thus, failure to strictly comply with Section 21(1), Article
II of R.A. No. 9165 does not necessarily render an accused's arrest illegal or the items seized or confiscated
from him inadmissible. The most important factor is the preservation of the integrity and evidentiary value
of the seized item.44
c han robles law

In a number of leases,45 We held that with the implied judicial recognition of the difficulty of complete
compliance with, the chain of custody requirement, substantial compliance is sufficient as long as the
integrity and evidentiary value of the seized item are properly preserved by the apprehending officers. We
ruled that the marking and inventory of the seized items at the police station immediately after the arrival
thereat of the police officers, as in this case, were in accordance with the law, its implementing rules and
regulations, and relevant jurisprudence. Also, the failure to photograph and conduct physical inventory of
the seized items is not fatal to the case against the accused and does not ipso facto render inadmissible in
evidence the items seized. What is important is that the seized item marked at the police station is identified
as the same item produced in court.46 chanrob leslaw

Therefore, in this case, even though the prosecution failed to submit in evidence the physical inventory and
photograph of the seized drug nor mark the same immediately after seizure, these will not render
appellant's arrest illegal or the items seized from him inadmissible. There is substantial compliance by the
police officers as to the required procedure on the custody and control of the confiscated item. The
succession of events established by evidence and the overall handling of the seized item by the prosecution
witnesses all show that the item seized was the same evidence subsequently identified and testified to in
open court.47chanro bles law

Specifically, in People v. Padua,48 We stated that the purpose of the procedure outlined in the implementing
rules is centered on the preservation of the integrity and evidentiary value of the seized items. We also
reiterated in People v. Hernandez, et al.49 that non-compliance with Section 21 would not render an
accused's arrest illegal or the items seized/confiscated from him inadmissible. 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.

Third Issue: Defense of Alibi

For the prosecution of illegal possession of dangerous drugs, the following facts must be proved: (a) the
accused was in possession of dangerous drugs; (b) such possession was not authorized by law; and, (g) the
accused was freely and consciously aware of being in possession of dangerous drugs.50All these elements
were adequately proven by the prosecution. Appellant was found to have in his possession 7.75 grans
of shabu, a dangerous drug. He could not present any proof or justification that he was fully authorized by
law to possess the same. The mere possession of a prohibited drug constitutes prima facie evidence of
knowledge or animus possidendi (intent to possess) sufficient to convict an accused in the absence of any
satisfactory explanation.51 chanrobleslaw

Appellant's mere denial cannot prevail over the positive and categorical identification and declarations of the
police officers. The defense of denial, frame-up or extortion, like alibi, has been invariably viewed by the
courts with disfavor for it can easily be concocted and is a common and standard defense ploy in most cases
involving violation of the Dangerous Drugs Act.52 As evidence that is both negative and self-serving, this
defense of alibi cannot attain more credibility than the testimony of the prosecution witness who testified
clearly, providing thereby positive evidence on the crime committed.53 One such positive evidence, in this
case, is the result off the laboratory examination conducted on the drug recovered from the appellant which
revealed that the confiscated plastic sachet tested positive for the presence of "shabu".54
chanroble slaw

Furthermore, the defense of frame-up or denial in drug cases requires strong and convincing evidence
because of the presumption that the law enforcement agencies acted in the regular performance of their
official duties. The presumption that official duty has been regularly performed can only be overcome
through clear and convincing evidence showing either of two things: (1) that they were not properly
performing their duty, or (2) that they were inspired by any improper motive.55 In the present case,
appellant failed to overcome such presumption. The bare denial of the appellant cannot prevail over the
positive testimony of the prosecution witnesses for failing to present any corroborative evidence.56 As
correctly ruled by the trial court, when accused testified that he came from a drugstore in Monumento in the
evening of his arrest and allegedly bought medicine, accused should have presented to the police officers
the item he bought, or any receipt, to prove that he was not at the place when the alleged indiscriminate
firing occurred.57 chan roble slaw

Settled is the rule that, unless some facts or circumstances of weight and influence have been overlooked or
the significance of which has been misinterpreted, the findings and conclusions of the trial court on the
credibility of witnesses are entitled to great respect and will not be disturbed because it has the advantage
of hearing the witnesses and observing their deportment and manner of testifying.58 The rule finds an even
more stringent application where said findings are sustained by the CA as in this case.59 Hence, We find no
compelling reason to deviate from the CA's findings that, indeed, the appellant's guilt was sufficiently proven
by the prosecution beyond reasonable doubt.
Turning now to the imposable penalty, We sustain the penalty imposed by the CA. Section 11 of Republic
Act No. 9165 provides for the penalty for the illegal possession of dangerous drugs: ChanRobles Vi rtualaw lib rary

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:

chanRoble svirtual Lawlib ra ry xxxx

Otherwise, if the quantity involved is less than the foregoing quantities, the penalties shall be graduated as
follows:

chanRoble svirtual Lawlib ra ry xxxx

(2) Imprisonment of twenty (20) years and one (1) day to life imprisonment and a fine ranging
from Four Hundred Thousand Pesos (P400,000.00) to Five Hundred Thousand Pesos
(P500,000.00), if the quantities of dangerous drugs are five (5) grams or more but less than ten (10)
grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin
oil, methamphetamine hydrochloride or "shabu", or other dangerous drags 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 three hundred (300) grams or more but less than five hundred (500) grams of
marijuana.60 chanroble svirtual lawlib rary

The aforesaid provision clearly states that the imposable penalty for illegal possession of any dangerous
drug, like shabu, with a quantity of five (5) grams or more but less than ten (10) grams, is imprisonment of
twenty (20) years and one (1) day to life imprisonment and a fine ranging from P400,000.00 to
P500,000.00.

Thus, for the illegal possession of shabu in the amount of 7.75 grams, as in this case, the CA correctly
imposed the penalty of imprisonment of twenty (20) years and one (1) day and a fine of Four Hundred
Thousand Pesos (P400,000.00). The Indeterminate Sentence Law finds no application in this case because
the penalty of imprisonment provided for illegal possession of five (5) grams or more but less than ten (10)
grams of shabu is indivisible.61 chan robles law

All told, We find no reason to modify or set aside the Decision of the Court of Appeals.

WHEREFORE, the appeal is DISMISSED and the Decision of the Court of Appeals dated March 27, 2015 in
CA-G.R. CR-HC No. 06354 is AFFIRMED.

SO ORDERED. chanRoblesvirt ual Lawlib rary

Velasco, Jr., (Chairperson), Perez, Reyes, and Perlas-Bernabe,*JJ., concur.

Endnotes:

*
Designated Additional Member in lieu of Associate Justice Francis H. Jardeleza, per Raffle dated July 15,
2015.

1
Penned by Associate Justice Amy C. Lazaro-Javier, with Associate Justices Romeo F. Barza and Melchor Q.
C. Sadang, concurring; rollo, pp. 2-21.

2
CA rollo, pp. 29-41-a.

3
Id. at 41-a.

4
Id. at 3.

5
Id.

6
CA rollo, pp. 30-32.
Id. at 33.
7

Id.
8

9
Exhibit "C-2," id. at 35.

10
Exhibit "C-1," id.

11
Exhibit "A," id.

12
CA rollo, p. 32.

13
Exhibit "B," id. at 35.

14
Exhibit "C," id.

15
CA rollo, pp. 36-37.

16
Id.

17
Id. at 41-a.

18
Rollo, p. 21. (Emphasis in the original)

19
Id. at 26-27.

20
CA rollo, pp. 14-16.

21
Zalameda v. People, 614 Phil. 710, 741 (2009).

22
CA rollo, p. 68.

23
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant,
arrest a person: ChanRobles Virtualawl ibra ry

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 cralawlawl ibra ry

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.
24
People v. Pavia, G.R. No. 202687, January 14, 2015, 746 SCRA 216, 221.

25
cralaw red CA rollo, p. 39, referring to the TSN dated December 3, 2012, p. 7.

People v. Aruta, G.R. No. 120915, April 3, 1998, 288 SCRA 626; People v. Tangliben, G.R. No. 63630, April
26

6, 1990, 184 SCRA 220; People v. Claudio, G.R. No. 72664, April 15, 1998, 160 SCRA 646.

27
CA rollo, p. 33.

28
People v. Pavia, supra note 24, at 222.

29
People v. Hindoy, 410 Phil. 6, 21 (2001); Dr. De Jesus v. Guerrero III, et al., 614 Phil. 520 (2009).

30
Rollo, pp. 9-10. (Emphasis supplied)

31
Fajardo, et al. v. People, 691 Phil. 752, 758-759 (2012); People v. Alcuizar, 662 Phil. 794, 801 (2011).

32
People v. Ventura, 619 Phil. 536, 552 (2009).
 Amado I. Saraum v. People, G.R. No. 205472, January 25, 2016, citing People v. Campomanes, et al., 641
33

Phil. 610, 623 (2010).

People v. Bautista, 682 Phil. 487, 501 (2012).

34

People v. Dela Rosa, 655 Phil. 630, 650 (2011).

35

36
PO2 Espadero also prepared a request for a drug test on the urine sample taken from appellant.

People v. Pavia, supra note 24, at 224.

37

People v. Alivio, et al., 664 Phil. 565, 577-578 (2011).

38

39
CA rollo, p. 70.

40
Id. at 69-70.

41
576 Phil. 576 (2008).

Mallillin v. People, supra, at 587. (Citations omitted)

42

Zalameda v. People, 614 Phil. 710, 741 (2009).

43

Id.
44

People v. Morate, G.R. No. 201156, January 29, 2014, 715 SCRA 115; People v. Cerdon, G.R. No. 201111,
45

August 6, 2014, 732 SCRA 335.

People v. Yable, G.R. No. 200358, April 7, 2014, 721 SCRA 91, 99.
46

Amado I. Saraum v. People of the Philippines, G.R. No. 205472, January 25, 2016; People v. Dela Rosa,
47

supra note 35, at 650.

48
639 Phil. 235, 248 (2010).

49
607 Phil. 617, 638 (2009).

Valencia v. People, 725 Phil. 268, 277 (2014); People v. Abedin, 685 Phil. 552, 563 (2012); Asiatico v.
50

People, 673 Phil. 74, 81 (2011).

People v. Tancinco, 736 Phil. 610, 623 (2014); Asiatico v. People, supra, at 451.
51

52
People v. Mariano, 698 Phil. 772, 785 (2012); Ambre v. People, 692 Phil. 681, 697 (2012); People v.
Villahermosa, 665 Phil. 399, 418 (2011); Zalameda v. People, 614 Phil. 710, 729 and 733 (2009).

People v. Nicart, et al., 690 Phil. 263 (2012).

53

People v. Pavia, supra note 24.

54

Miclat, Jr. v. People, 672 Phil. 191, 210 (2011); People v. Pagkalinawan, 628 Phil. 101, 118 (2010).
55

People v. Mariano, supra note 52; People v. Villahermosa, supra note 52.
56

57
CA rollo, pp. 78-79.

58
People v. Villahermosa, supra note 52, at 420; People v. Campomanes, 641 Phil. 621, 622 (2010); People
v. Canaya, G.R. No. 212173, February 25, 2015 (Third Division Resolution).

People v. Villahermosa, supra note 52, at 420.

59

Emphasis supplied.
60
 People v. Dela Rosa, supra note 35, at 656; People v. Tancinco, supra note 51, at 624.
61

G.R. No. 189833 February 5, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
JAVIER MORILLA Y AVELLANO, Accused-Appellant.

RESOLUTION

PEREZ, J.:

Before us is an appeal filed by accused-appellant Javier Morilla y Avellano (Morilla) from the
Decision1 of the Court of Appeals which affirmed his conviction and that of his co-accused Ronnie
Mitra y Tena (Mayor Mitra) by the trial court, sentencing them2 to suffer the penalty of life
imprisonment and to pay a fine of P10,000,000.00 each.

The Regional Trial Court Judgment

On 15 October 2001, Morilla, Mayor Mitra, Willie Yang y Yao (Yang) and Ruel Dequilla y Regodan
(Dequilla) were charged in a criminal information as follows:

That on or about October 13, 2001, in Barangay Kiloloran, Municipality of Real, Province of Quezon,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, one of
them an incumbent mayor of the Municipality of Panukulan, Quezon Province, who all belong to an
organized/syndicate crime group as they all help one another, for purposes of gain in the transport of
illegal drugs, and in fact, conspiring and confederating together and mutually aiding and abetting one
another, did then and there wilfully, unlawfully, and feloniously transport by means of two (2) motor
vehicles, namely a Starex van bearing plate number RWT-888 with commemorative plate to read
"Mayor" and a municipal ambulance of Panukulan, Quezon Province, methamphetamine
hydrochloride, a regulated drug which is commonly known as shabu, and with an approximate
weight of five hundred three point sixty eight (503.68) kilos, without authority whatsoever.3

After trial, the Regional Trial Court of Quezon City4 on 1 August 2007 convicted Morilla and his co-
accused Mayor Mitra, then incumbent Mayor of Panukulan, Quezon, of illegal transport5 of
methamphetamine hydrochloride, commonly known as shabu, with an approximate weight of five
hundred three point sixty eight (503.68) kilos. However, it absolved Dequilla and Yang due to the
prosecution’s failure to present sufficient evidence to convict them of the offense charged. The
dispositive of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered finding accused Ronnie Mitra y
Tena and Javier Morilla y Avellana GUILTY beyond reasonable doubt of the offense charged.
Accordingly, both accused are hereby sentenced to suffer the penalty of life imprisonment and to
pay a fine of P10,000,000.00 each. Accused Willie Yang y Yao and Ruel Dequilla y Regodan are
hereby ACQUITTED for failure of the prosecution to prove their guilt beyond reasonable doubt and
are ordered immediately released from custody unless held for some other lawful cause.
The methamphetamine hydrochloride ordered retained by the Court as representative sample which
is still in the custody of the PNP Crime Laboratory is ordered turned over to the Philippine Drug
Enforcement Agency for proper disposition.6

The trial court found valid the search conducted by police officers on the vehicles driven by Mayor
Mitra and Morilla, one with control number 888 and the other an ambulance with plate number SFK-
372, as the police officers have already acquired prior knowledge that the said vehicles were
suspected to be used for transportation of dangerous drugs. During the checkpoint in Real, Quezon,
the information turned out to be accurate and indeed, the two accused had in their motor vehicles
more than five hundred kilos of methamphetamine hydrochloride.7

The trial court dismissed the arguments of Mayor Mitra that he was without any knowledge of the
contents of the sacks and that he was merely requested to transport them to Manila on board his
Starex van. He explained that he only accommodated the request of a certain Ben Tan because the
latter bought his fishing boat. It likewise dismissed the defense of ambulance driver Morilla of lack of
knowledge of the illegality of the contents. Morilla insisted that he thought that he was just
transporting wooden tiles and electronic spare parts together with Dequilla. The other passenger of
the ambulance, Yang, in his defense, did not bother to inquire about the contents of the vehicle as
he was merely an accommodated passenger of the ambulance.

The court rejected the defenses presented by Morilla and Mayor Mitra as they were caught in
flagrante delicto of transporting dangerous drugs in two vehicles driven by each of them. Absent any
convincing circumstance to corroborate their explanations, the validity of their apprehension was
sustained.8

The ruling of conspiracy between Mayor Mitra and Morilla was based on the testimonies of the four
accused themselves. It was found by the trial court that the two vehicles, the Starex van driven by
Mayor Mitra and the ambulance van driven by Morilla, left Infanta, Quezon en route to Manila. The
Starex van which was ahead of the ambulance was able to pass the checkpoint set up by the police
officers. However, the ambulance driven by Morilla was stopped by police officers. Through the
untinted window, one of the police officers noticed several sacks inside the van. Upon inquiry of the
contents, Morilla replied that the sacks contained narra wooden tiles.

Unconvinced, the police officers requested Morilla to open the rear door of the car for further
inspection. When it was opened, the operatives noticed that white crystalline granules were
scattered on the floor, prompting them to request Morilla to open the sacks. At this moment, Morilla
told the police officers that he was with Mayor Mitra in an attempt to persuade them to let him
pass.9 His request was rejected by the police officers and upon inspection, the contents of the sacks
turned out to be sacks of methamphetamine hydrochloride.10 This discovery prompted the operatives
to chase the Starex van of Mayor Mitra. The police officers were able to overtake the van and Mayor
Mitra was asked to stop. They then inquired if the mayor knew Morilla. On plain view, the operatives
noticed that his van was also loaded with sacks like the ones found in the ambulance. Thus, Mayor
Mitra was also requested to open the door of the vehicle for inspection. At this instance, Mayor Mitra
offered to settle the matter but the same was rejected. Upon examination, the contents of the sacks
were likewise found to contain sacks of methamphetamine hydrochloride.11

The two other accused in this case, Dequilla and Yang, were acquitted by the trial court for failure on
the part of the prosecution to establish their guilt beyond reasonable doubt. The court ruled that
Dequilla’s and Yang’s mere presence inside the vehicle as passengers was inadequate to prove that
they were also conspirators of Mayor Mitra and Morilla.12

The Court of Appeals Decision

On 13 July 2009, the appellate court affirmed the ruling of the trial court. It upheld the finding of
conspiracy between Mayor Mitra and Morilla in their common intent to transport several sacks
containing methamphetamine hydrochloride on board their respective vehicles. The singularity of
their intent to illegally transport methamphetamine hydrochloride was readily shown when Morilla
agreed to drive the ambulance van from Infanta, Quezon to Manila together with Mayor Mitra, who
drove the lead vehicle, the Starex van.13

The appellate court likewise dismissed the argument of lack of knowledge of the illegal contents of
the sacks. The claim that the sacks were loaded with wooden tiles was implausible due to the
obvious disparity of texture and volume.14

Court’s Ruling

We affirm the ruling but modify the penalty imposed.

In his supplemental brief, Morilla raised the issues: (1) whether he may be convicted for conspiracy
to commit the offense charged sans allegation of conspiracy in the Information, and (2) whether the
prosecution was able to prove his culpability as alleged in the Information.15

We dismiss his arguments.

Morilla primarily cites the provision on Sec. 1(b), Rule 115 of the Rules on Criminal Procedure16 to
substantiate his argument that he should have been informed first of the nature and cause of the
accusation against him. He pointed out that the Information itself failed to state the word conspiracy
but instead, the statement "the above-named accused, one of them an incumbent mayor of the
Municipality of Panukulan, Quezon Province, who all belong to an organized/syndicated crime group
as they all help one another, did then and there wilfully, unlawfully and feloniously transport x x x."
He argued that conspiracy was only inferred from the words used in the Information.17

Even assuming that his assertion is correct, the issue of defect in the information, at this point, is
deemed to have been waived due to Morilla’s failure to assert it as a ground in a motion to quash
before entering his plea.18

Further, it must be noted that accused Morilla participated and presented his defenses to contradict
the allegation of conspiracy before the trial and appellate courts. His failure or neglect to assert a
right within a reasonable time warrants a presumption that the party entitled to assert it either has
abandoned it or declined to assert it.19

The finding of conspiracy by both courts is correct.

A conspiracy exists when two or more persons come to an agreement concerning the commission of
a felony and decide to commit it.20 To determine conspiracy, there must be a common design to
commit a felony.21

Morilla argues that the mere act of driving the ambulance on the date he was apprehended is not
sufficient to prove that he was part of a syndicated group involved in the illegal transportation of
dangerous drugs.

This argument is misplaced.

In conspiracy, it need not be shown that the parties actually came together and agreed in express
terms to enter into and pursue a common design. The assent of the minds may be and, from the
secrecy of the crime, usually inferred from proof of facts and circumstances which, taken together,
indicate that they are parts of some complete whole.22 In this case, the totality of the factual
circumstances leads to a conclusion that Morilla conspired with Mayor Mitra in a common desire to
transport the dangerous drugs. Both vehicles loaded with several sacks of dangerous drugs, were
on convoy from Quezon to Manila. Mayor Mitra was able to drive through the checkpoint set up by
the police operatives. When it was Morilla’s turn to pass through the checkpoint, he was requested
to open the rear door for a routinary check. Noticing white granules scattered on the floor, the police
officers requested Morilla to open the sacks. If indeed he was not involved in conspiracy with Mayor
Mitra, he would not have told the police officers that he was with the mayor.

His insistence that he was without any knowledge of the contents of the sacks and he just obeyed
the instruction of his immediate superior Mayor Mitra in driving the said vehicle likewise bears no
merit.

Here, Morilla and Mayor Mitra were caught in flagrante delicto in the act of transporting the
dangerous drugs on board their vehicles. "Transport" as used under the Dangerous Drugs Act
means "to carry or convey from one place to another."23 It was well established during trial that
Morilla was driving the ambulance following the lead of Mayor Mitra, who was driving a Starex van
going to Manila. The very act of transporting methamphetamine hydrochloride is malum prohibitum
since it is punished as an offense under a special law. The fact of transportation of the sacks
containing dangerous drugs need not be accompanied by proof of criminal intent, motive or
knowledge.24

In a similar case of People v. Libnao,25 this Court upheld the conviction for illegal transportation of
marijuana of Libnao and Nunga, who were caught carrying a bag full of marijuana leaves when they
were flagged down on board a passing tricycle at a checkpoint.

However, we modify the penalty imposed by the trial court as affirmed by the Court of Appeals.

Originally, under Section 15 of Republic Act No. 6425,26 the penalty for illegal transportation of
methamphetamine hydrochloride was imprisonment ranging from six years and one day to twelve
years and a fine ranging from six thousand to twelve thousand pesos. Pursuant to Presidential
Decree No. 1683,27 the penalty was amended to life imprisonment to death and a fine ranging from
twenty to thirty thousand pesos. The penalty was further amended in Republic Act No. 7659,28 where
the penalty was changed to reclusion perpetua to death and a fine ranging from five hundred
thousand pesos to ten million pesos.

From the foregoing, we sustain the imposed penalty of fine of P10,000,00.00 to be paid by each of
the accused but amend the penalty to reclusion perpetua following the provisions of Republic Act
No. 7659 and the principle of retroactive application of lighter penalty. Reclusion perpetua entails
imprisonment for at least thirty (30) years after which the convict becomes eligible for pardon. It also
carries with it accessory penalties, namely: perpetual special disqualification, etc. Life imprisonment,
on the other hand, does not appear to have any definite extent or duration and carries no accessory
penalties.29

The full particulars are in Ho Wai Pang v. People,30 thus:

As to the penalties imposed by the trial court and as affirmed by the appellate court, we find the
same in accord with law and jurisprudence. It should be recalled that at the time of the commission
of the crime on September 6, 1991, Section 15 of R.A. No. 6425 was already amended by
Presidential Decree No. 1683. The decree provided that for violation of said Section 15, the penalty
of life imprisonment to death and a fine ranging from P20,000.00 to P30,000.00 shall be imposed.
Subsequently, however, R.A. No. 7659 further introduced new amendments to Section 15, Article III
and Section 20, Article IV of R.A. No. 6425, as amended. Under the new amendments, the penalty
prescribed in Section 15 was changed from "life imprisonment to death and a fine ranging
from P20,000.00 to P30,000.00" to "reclusion perpetua to death and a fine ranging
from P500,000.00 to P10 million." On the other hand, Section 17 of R.A. No. 7659 amended Section
20, Article IV of R.A. No. 6425 in that the new penalty provided by the amendatory law shall be
applied depending on the quantity of the dangerous drugs involved.

The trial court, in this case, imposed on petitioner the penalty of reclusion perpetua under R.A. No.
7659 rather than life imprisonment ratiocinating that R.A. No. 7659 could be given retroactive
application, it being more favorable to the petitioner in view of its having a less stricter punishment. 1âwphi 1

We agree. In People v. Doroja, we held:

"In People v. Martin Simon (G.R. No. 93028, 29 July 1994) this Court ruled (a) that the amendatory
law, being more lenient and favorable to the accused than the original provisions of the Dangerous
Drugs Act, should be accorded retroactive application, x x x."

And, since "reclusion perpetua is a lighter penalty than life imprisonment, and considering the rule
that criminal statutes with a favorable effect to the accused, have, as to him, a retroactive effect," the
penalty imposed by the trial court upon petitioner is proper. Consequently, the Court sustains the
penalty of imprisonment, which is reclusion perpetua, as well as the amount of fine imposed by the
trial court upon petitioner, the same being more favorable to him.31

WHEREFORE, premises considered, the petition is DENIED and the assailed 13 July 2009 Decision
of the Court of Appeals in CA-G.R. CR-H.C. 02967 is AFFIRMED WITH MODIFICATION with
respect to the penalty to be imposed as Reclusion Perpetua instead of Life Imprisonment and
payment of fine of P10,000,000.00 by each of the accused.

SO ORDERED.

SECOND DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 192235

Appellee,

Present:

CARPIO, J., Chairperson,

 LEONARDO-DE CASTRO, *

- versus - BRION,

PEREZ, and

SERENO, JJ.

ROLANDO LAYLO y CEPRES, Promulgated:

Appellant. July 6, 2011

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

DECISION

CARPIO, J.:

The Case

Before the Court is an appeal assailing the Decision dated 28 January 2010 of the
1

Court of Appeals (CA) in CA-G.R. CR-H.C. No. 03631. The CA affirmed the
Decision dated 16 September 2008 of the Regional Trial Court (RTC) of Binangonan,
2
Rizal, Branch 67, in Criminal Case No. 06-017, convicting appellant
Rolando Laylo y Cepres (Laylo) of violation of Section 26(b), Article II (Attempted
Sale of Dangerous Drugs) of Republic Act No. 9165 (RA 9165) or the
3 4

Comprehensive Dangerous Drugs Act of 2002.

The Facts

On 21 December 2005, two separate Informations against

appellant Laylo and Melitona Ritwal (Ritwal) were filed with the RTC
of Binangonan, Rizal, Branch 67, docketed as Criminal Case Nos. 06-017 and 06-018,
respectively. The information against Laylo states:

Criminal Case No. 06-017

That on or about the 17th day of December, 2005, in the Municipality
of Binangonan, Province of Rizal, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, not being authorized
by law to sell any dangerous drug, did then and there willfully,
unlawfully, and knowingly attempt to sell, deliver, and give
away shabu to PO1 Angelito G. Reyes, 0.04 gram of white crystalline
substance contained in two (2) heat-sealed transparent plastic sachets
which were found positive to the test
for Methylamphetamine Hydrochloride, also known as shabu, a
dangerous drug, thus commencing the commission of the crime of illegal
sale but did not perform all the acts of execution which would produce
such crime by reason of some cause or accident other than
the accuseds own spontaneous desistance, that is, said PO1 Angelito G.
Reyes introduced himself as policeman, arrested the accused and
confiscated the two (2) above-mentioned sachets from the latter.

CONTRARY TO LAW. 5
Upon arraignment, both accused pleaded not guilty. Joint trial on the merits ensued.
However, during the trial, Ritwal jumped bail and was tried in absentia.
Thus, Ritwal was deemed to have waived the presentation of her evidence and the
case was submitted for decision without any evidence on her part.

The prosecution presented two witnesses: Police Officer 1 (PO1) Angelito G. Reyes
(PO1 Reyes) and PO1 Gem A. Pastor (PO1 Pastor), the poseur-buyers in the
attempted sale of illegal drugs.

The prosecution summed up its version of the facts: In the afternoon of 17 December
2005, PO1 Reyes and PO1 Pastor, both wearing civilian clothes, were conducting
anti-drug surveillance operations at Lozana Street, Calumpang, Binangonan, Rizal.
While the police officers were in front of a sari-sari store at around 5:40 p.m.,
appellant Laylo and his live-in partner, Ritwal, approached them and
asked, Gusto mong umiskor ng shabu? PO1 Reyes
replied, Bakit mayroon ka ba? Laylo then brought out two plastic bags
containing shabu and told the police officers, Dos (P200.00) ang isa. Upon hearing
this, the police officers introduced themselves as cops. PO1 Reyes immediately
arrested Laylo. Ritwal, on the other, tried to get away but PO1 Pastor caught up with
her. PO1 Pastor then frisked Ritwal and found another sachet of shabu in a SIM card
case which Ritwal was carrying.

PO1 Reyes and PO1 Pastor marked the three plastic sachets of shabu recovered
from Laylo and Ritwal and forwarded them to the Philippine National Police Crime
Laboratory for forensic testing. Forensic Chemist Police
Inspector Yehla C. Manaog conducted the laboratory examination on the specimens
submitted and found the recovered items positive
for methylamphetamine hydrochloride or shabu, a dangerous drug.
The police officers charged Laylo for attempted sale of illegal drugs and used the two
plastic sachets containing shabu as basis while Ritwal was charged for possession of
illegal drugs using as basis the third sachet containing 0.02 grams of shabu.

The defense, on the other hand, presented different versions of the facts. The
witnesses presented were: appellant Laylo; Laylos three neighbors namely
Rodrigo Panaon, Jr., Marlon de Leon, and TeresitaMarquez.

Laylo testified that while he and his common-law wife, Ritwal, were walking on the
street, two men grabbed them. The two men, who they later identified as PO1 Reyes
and PO1 Pastor, dragged them to their house. Once inside, the police officers placed
two plastic sachets in each of their pockets. Afterwards, they were brought to the
police station where, despite protests and claims that the drugs were planted on them,
they were arrested and charged.

To corroborate Laylos testimony, the defense presented Laylos three neighbors.

Marlon de Leon (de Leon), also a close friend of the couple, testified that he was
taking care of the Laylo and Ritwals child when he heard a commotion. He saw men,
whom de Leon identified as assets, holding the couple and claimed that he saw one of
them put something, which he described as plastic, in the left side of Laylosjacket.

Rodrigo Panaon, Jr. (Panaon) narrated that on 17 December 2005, at around 5:00 or
6:00 p.m., he was on his way home when he saw Laylo arguing with three men in an
alley. He overheard Laylo uttering, Bakit ba? Bakit ba? Later, Panaon saw a
commotion taking place at Laylos backyard. The three men arrested Laylo while the
latter shouted, Mga kapitbahay, tulungan ninyo kami, kamiy dinadampot.
Then Panaon saw someone place something inside the jacket of Laylo as he
heard Laylo say, Wala kayong makukuha dito.
Teresita Marquez (Marquez) testified that while she was fetching water from the well
on 17 December 2005, at around 5:00 or 6:00 p.m., she heard Laylos son
shouting, Amang, Amang. Marquez then saw the child run to his father, who was with
several male companions. Then someone pulled Laylos collar and frisked him.
Marquez overheard someone uttering, Wala po, wala po. Marquez went home after
the incident. At around 9:00 in the evening, Ritwals daughter visited her and
borrowed money for Laylo and Ritwals release. Marquez then
accompanied Ritwals daughter to the municipal hall, where a man
demanded P40,000.00 for the couples release.

In its Decision dated 16 September 2008, the RTC found Laylo and Ritwal guilty
beyond reasonable doubt of violations of RA 9165. The RTC gave credence to the
testimonies of the police officers, who were presumed to have performed their duties
in a regular manner. The RTC stated that Reyes and Pastor were straightforward and
candid in their testimonies and unshaken by cross-examination. Their testimonies
were unflawed by inconsistencies or contradictions in their material points. The RTC
added that the denial of appellant Laylo is weak and self-serving and his allegation of
planting of evidence or frame-up can be easily concocted. Thus, Laylos defense
cannot be given credence over the positive and clear testimonies of the prosecution
witnesses. The dispositive portion of the decision states:

We thus find accused Rolando Laylo GUILTY beyond reasonable doubt

of violating Section 26(b) of R.A. No. 9165 and sentence him to suffer a
penalty of life imprisonment and to pay a fine of P500,000.00. We also
find accused Melitona Ritwal GUILTY beyond reasonable doubt of
violating Section 11 of R.A. No. 9165 and illegally possessing a total of
0.02 grams of Methylamphetamine Hydrochloride or shabu and
accordingly sentence her to suffer an indeterminate penalty of 12 years
and one day as minimum to 13 years as maximum and to pay a fine
of P300,000.00.
 Let the drug samples in this case be forwarded to the Philippine Drug
Enforcement Agency (PDEA) for proper disposition. Furnish PDEA
with a copy of this Decision per OCA Circular No. 70-2007.

SO ORDERED. 6

Laylo filed an appeal with the CA. Laylo imputed the following errors on the RTC:

I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE

ACCUSED-APPELLANT OF THE OFFENSE CHARGED DESPITE
THE PROSECUTION WITNESS PATENTLY FABRICATED
ACCOUNTS.

II. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE

ACCUSED-APPELLANT OF THE OFFENSE CHARGED WHEN HIS
GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.

III. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE

ACCUSED-APPELLANT DESPITE THE APPREHENDING
OFFICERS FAILURE TO PRESERVE THE INTEGRITY OF THE
ALLEGED SEIZED SHABU. 7

The Ruling of the Court of Appeals

In a Decision dated 28 January 2010, the CA affirmed the decision of the RTC. The
dispositive portion of the decision states:
WHEREFORE, premises considered, the appeal is DISMISSED for lack of
merit. The challenged decision of the court a quo is AFFIRMED. Costs
against the accused-appellant.

SO ORDERED. 8

Hence, this appeal.

The Ruling of the Court

The appeal lacks merit.

The elements necessary for the prosecution of illegal sale of drugs are: (1) the identity
of the buyer and seller, the object, and the consideration; and (2) the delivery of the
thing sold and the payment. 9

In the present case, PO1 Reyes narrated in court the circumstances of the illegal sale:
PROS. ARAGONES:
Q: What time did you proceed to that place of surveillance?
A: 5:40 p.m., Maam.

Q: And what happened when you and PO1 Gem Pastor went there?
A: When we were making standby at a nearby store there was a man
talking with a woman, the man asked me if we want to have a shot
of shabu.
Q: What was your reply?
A: Bakit, meron ka ba?

Q: How did that other person react to that question, what did he tell you,
if any?
A: Gusto mong umiskor ng shabu?

Q: What happened after that?

A: I replied, Bakit meron ka ba? then he showed me two small plastic
bags containing shabu, Maam.

Q: How big is that bag, Mr. Witness?

A: Small, Maam.

Q: Can you tell us the size?

A: (Demonstrating) Almost one inch the size of a cigarette, Maam.

COURT: It was in a plastic not in foil?

A: Yes, your Honor.

PROS. ARAGONES:
Q: After showing you two plastic bags, what happened?
A: I introduced myself as a police officer then I caught this man and
confiscated the two small plastic bag containing shabu.

Q: How about the lady?

A: My partner caught the woman because she was intending to run away
and he got from her right hand Smart SIM card case containing one
small plastic.
10
PO1 Pastor corroborated the testimony of PO1 Reyes:

PROS. ARAGONES:
Q: Mr. Witness, while you were conducting surveillance on December
17, 2005, what happened?
A: While we were conducting surveillance
at Lozana Street, Calumpang, Binangonan, Rizal, while we were at the
store, two (2) persons approached us, one male and one female, Maam.

Q: Who were those persons? Did you come to know the name of those
persons?
A: At that time I dont know the names but when they were brought to
the police station I came to know their names, Maam.

Q: What are the names of these two persons?

A: Rolando Laylo and Melitona Ritwal, Maam.

Q: At that time they approached you during the time you were
conducting surveillance at Lozana Street, what happened?
A: The male person approached PO1 Reyes and asked if iiskor, Maam.

Q: What was the reply of PO1 Reyes?

A: He answered Bakit meron ka ba?

Q: When that answer was given by Reyes, what did that male person do?
A: He produced two (2) small plastic sachets containing
allegedly shabu and he said dos ang isa.

COURT: What do you mean by dos ang isa?

A: Php 200.00, Your Honor.
 PROS. ARAGONES:
Q: Where were you when that male person produced two (2) small
plastic sachets?
A: I was beside PO1 Reyes, Maam.

Q: After he showed the plastic sachets containing drugs, what happened

next?
A: We introduced ourselves as policemen, Maam.

Q: After you introduced yourselves, what happened next?

A: PO1 Reyes arrested the male person while I arrested the female
person, Maam.

Q: Why did you arrest the woman?

A: At that time, she was about to run I confiscated from her a SIM card
case, Maam.

COURT: What was the contents of the SIM card case?

A: One (1) piece of alleged shabu, Your Honor. 11

From the testimonies given, PO1 Reyes and PO1 Pastor testified that they were the
poseur-buyers in the sale. Both positively identified appellant as the seller of the
substance contained in plastic sachets which were found to be positive for shabu. The
same plastic sachets were likewise identified by the prosecution witnesses when
presented in court. Even the consideration of P200.00 for each sachet had been made
known by appellant to the police officers. However, the sale was interrupted when the
police officers introduced themselves as cops and immediately arrested appellant and
his live-in partner Ritwal. Thus, the sale was not consummated but merely attempted.
Thus, appellant was charged with attempted sale of dangerous drugs. Section 26(b),
Article II of RA 9165 provides:
 Section 26. Attempt or Conspiracy. Any attempt or conspiracy to commit
the following unlawful acts shall be penalized by the same penalty
prescribed for the commission of the same as provided under this Act:
xxx
(b) Sale, trading, administration, dispensation, delivery, distribution and
transportation of any dangerous drug and/or controlled precursor and
essential chemical;
xxx

Here, appellant intended to sell shabu and commenced by overt acts the commission
of the intended crime by showing the substance to PO1 Reyes and PO1 Pastor. The 12

sale was aborted when the police officers identified themselves and placed appellant
and Ritwal under arrest. From the testimonies of the witnesses, the prosecution was
able to establish that there was an attempt to sell shabu. In addition, the plastic sachets
were presented in court as evidence of corpus delicti. Thus, the elements of the crime
charged were sufficiently established by evidence.

Appellant claims that he was a victim of a frame up. However, he failed to

substantiate his claim. The witnesses presented by the defense were not able to
positively affirm that illegal drugs were planted on appellant by the police officers
when they testified that they saw someone place something inside appellants
jacket. In Quinicot v. People, we held that allegations of frame-up and extortion by
13

police officers are common and standard defenses in most dangerous drugs cases.
They are viewed by the Court with disfavor, for such defenses can easily be concocted
and fabricated.

Appellant asserts that it is unbelievable that he would be so foolish and reckless to

offer to sell shabu to strangers. In People v. de Guzman, we have ruled that peddlers
14

of illicit drugs have been known, with ever increasing casualness and recklessness, to
offer and sell their wares for the right price to anybody, be they strangers or not. What
matters is not the existing familiarity between the buyer and the seller, or the time and
venue of the sale, but the fact of agreement as well as the act constituting the sale and
delivery of the prohibited drugs.

Further, appellant did not attribute any ill-motive on the part of the police officers.
The presumption of regularity in the performance of the police officers official duties
should prevail over the self-serving denial of appellant.
15

In sum, we see no reason to disturb the findings of the RTC and CA. Appellant was
correctly found to be guilty beyond reasonable doubt of violating Section 26(b),
Article II of RA 9165.

WHEREFORE, we DISMISS the appeal. We AFFIRM the Decision dated 28

January 2010 of the Court of Appeals in CA-G.R. CR-H.C. No. 03631.

SO ORDERED.

FIRST DIVISION

FRANCISCO SALVADOR B. G.R. No. 156643

ACEJAS III,
Petitioner, Present:

Panganiban, CJ,
Chairman,
- versus - Ynares-Santiago,
Austria-Martinez,
Callejo, Sr., and
Chico-Nazario, JJ

PEOPLE OF THE PHILIPPINES,

Respondent.

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

VLADIMIR S. HERNANDEZ, G.R. No. 156891

Petitioner,

- versus -

Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. June 27, 2006
 x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x

DECISION

PANGANIBAN, CJ:

T
his Court defers to the Sandiganbayans evaluation of the factual issues. Not
having heard any cogent reasons to justify an exception to this rule, the
Court adopts the anti-graft courts findings. In any event, after meticulously
reviewing the records, we find no ground to reverse the Sandiganbayan.

The Case

Before us are consolidated Petitions for Review[1] assailing the March

8, 2002 Decision,[2] and the January 3[3] and 14, 2003[4] Resolutions of the
Sandiganbayan in Criminal Case No. 20194. Francisco SB. Acejas III and
Vladimir S. Hernandez were found guilty beyond reasonable doubt of
direct bribery penalized under Article 210 of the Revised Penal Code.

Vladimir S. Hernandez, Victor D. Conanan, SPO3 Expedito S.

Perlas, Francisco SB. Acejas III and Jose P. Victoriano were charged
on February 8, 1994, in an Information that reads thus:
That on or about January 12, 1994, or sometime prior thereto
in the City of Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused VLADIMIR S.
HERNANDEZ and VICTOR CONANAN, being then employed both
as Immigration officers of the Bureau of Immigration and
Deportation, Intramuros, Manila, hence are public officers, taking
advantage of their official positions and committing the offense in
relation to office, conspiring and confederating with Senior Police
Officer 3 EXPEDITO S. PERLAS of the Western Police District
Command, Manila, together with co-accused Atty. FRANCISCO SB.
ACEJAS III, of the LUCENARIO, MARGATE, MOGPO, TIONGCO &
ACEJAS LAW OFFICES, and co-accused JOSE P. VICTORIANO, a
private individual, did then and there, willfully, unlawfully and
feloniously demand, ask, and/or extort One Million (P1,000,000.00)
PESOS from the spouses BETHEL GRACE PELINGON and
Japanese TAKAO AOYAGI and FILOMENO PELINGON, JR., in
exchange for the return of the passport of said Japanese Takao
Aoyagi confiscated earlier by co-accused Vladimir S. Hernandez and
out of said demand, the complainants Bethel Grace Pelingon, Takao
Aoyagi and Filomeno Pelingon, Jr. produced, gave and delivered the
sum of Twenty Five Thousand (P25,000.00) Pesos in marked money
to the above-named accused at a designated place at the Coffee
Shop, Ground Floor, Diamond Hotel, Ermita, Manila, causing
 damage to the said complainants in the aforesaid amount
of P25,000.00, and to the prejudice of government service.[5]

After trial, all the accused -- except Victoriano -- were convicted. The
challenged Decision disposed as follows:

WHEREFORE, premises considered, accused Vladimir S.

Hernandez, Victor D. Conanan, Expedito S. Perlas and Francisco
SB. Acejas III are hereby found GUILTY beyond reasonable doubt of
the crime of Direct Bribery, and are sentenced to suffer the
indeterminate penalty of four (4) years, nine (9) months and ten (10)
days of prision correccional, as minimum, to seven (7) years and
four (4) months of prision mayor, as maximum, and to pay a fine of
three million pesos (P3,000,000.00). Accused Vladimir S. Hernandez
and Victor D. Conanan shall also suffer the penalty of special
temporary disqualification. Costs against the accused.

On ground of reasonable doubt, accused Jose P. Victoriano is

hereby ACQUITTED of the crime charged. The surety bond he
posted for his provisional liberty is cancelled.The Hold Departure
Order against him embodied in this Courts Order dated July 24,
2000 is recalled.[6]
 The first Resolution acquitted Conanan and denied reconsideration
of the other accused. The second Resolution denied
Petitioner Acejas Motion for New Trial.

Hence, petitioners now seek recourse in this Court.[7]

The Facts

The facts[8] are narrated by the Sandiganbayan as follows:

At around 4:00 to 5:00 p.m. of December 17, 1993, accused

Bureau of Immigration and Deportation (BID) Intelligence Agent
Vladimir Hernandez, together with a reporter, went to the house of
Takao Aoyagi and Bethel Grace Pelingon-Aoyagi at 27 Pacific Drive,
Grand Villa, Sto. Nio, Paraaque, Metro Manila. His purpose was to
serve Mission Order No. 93-04-12 dated December 13, 1993, issued
by BID Commissioner Zafiro Respicio against Takao Aoyagi, a
Japanese national. Hernandez told Takao Aoyagi, through his wife,
Bethel Grace, that there were complaints against him in Japan and
that he was suspected to be a Yakuza big boss, a drug dependent
and an overstaying alien.

To prove that he had done nothing wrong, Takao Aoyagi

showed his passport to Hernandez who issued an undertaking (Exh.
B) which Aoyagi signed. The undertaking stated that Takao Aoyagi
promised to appear in an investigation at the BID on December 20,
1993, and that as a guarantee for his appearance, he was entrusting
his passport to Hernandez. Hernandez acknowledged receipt of the
passport.

On December 18, 1993, Bethel Grace Aoyagi called accused

Expedito Dick Perlas[9] and informed him about the taking of her
husbands passport by Hernandez. Perlas told her he would refer
their problem to his brother-in-law, Atty. Danton Lucenario of the
Lucenario, Margate, Mogpo, Tiongco and Acejas III Law Firm. It was
at the Sheraton Hotel that Perlas introduced the Aoyagis to Atty.
Lucenario. They discussed the problem and Atty. Lucenario told the
Aoyagis not to appear before the BID on December 20, 1993.

As advised by Atty. Lucenario, Takao Aoyagi did not appear before

the BID. Instead, Atty. Rufino M. Margate of the Lucenario Law Firm
filed with the BID an Entry of Appearance (Exh. 6 Acejas). Atty.
Margate requested for copies of any complaint-affidavit against
Takao Aoyagi and asked what the ground was for the confiscation of
x x x Aoyagis passport.

Hernandez prepared a Progress Report (Exh. 5 Hernandez) which

was submitted to Ponciano M. Ortiz, the Chief of Operations and
Intelligence Division of the BID. Ortiz recommended that Takao
Aoyagi, who was reportedly a Yakuza and a drug dependent, be
placed under custodial investigation.

In the evening of December 22, 1993 at the Diamond Hotel, the

Aoyagis met accused Atty. Francisco Acejas III who was then
accompanied by Perlas. Atty. Acejas informed them that it would be
he who would handle their case. A Contract for Legal Services (Exh.
D) dated December 22, 1993 was entered into by Takao Aoyagi and
Atty. Acejas, who represented the Lucenario Law Firm.

In the morning of December 23, 1993, Perlas and Atty. Acejas

accompanied the Aoyagis to the Domestic Airport as the latter were
going to Davao. It was here that Takao Aoyagi paid Atty.
Acejas P40,000.00, P25,000 of which is 50% of the acceptance fee,
and the P15,000.00 is for filing/docket fee (Exh. O). The Aoyagis
were able to leave only in the afternoon as the morning flight was
postponed.

On December 24, 1993, while attending a family reunion, Bethel

Grace Pelingon-Aoyagi informed her brother, Filomeno Jun
Pelingon, Jr., about her husbands passport.

On January 2, 1994, Jun Pelingon talked to BID Commissioner

Zafiro Respicio in Davao and told the latter of Takao Aoyagis
problem with the BID. Respicio gave Pelingon his calling card and
told Pelingon to call him up in his office. That same day, Jun
Pelingon and Mr. and Mrs. Aoyagi flew back to Manila.

On January 5, 1994, Jun Pelingon, Dick Perlas, Atty. Acejas,

Vladimir Hernandez, Vic Conanan and Akira Nemoto met at the
Aristocrat Restaurant in Roxas Boulevard.

Another meeting was arranged at the Manila Nikko Hotel

in Makati on January 8, 1994 with Jun Pelingon, Perlas, Atty. Acejas
and Hernandez attending.
 On January 11, 1994, on account of the alleged demand of P1
million for the return of Takao Aoyagis passport, Jun Pelingon called
up Commissioner Respicio. The latter referred him to Atty. Angelica
Somera, an NBI Agent detailed at the BID. It was Atty. Carlos
Saunar, also of the NBI, and Atty. Somera who arranged the
entrapment operation.

On January 12, 1994, Vladimir Hernandez returned the passport to

Takao Aoyagi at the Coffee Shop of the Diamond Hotel. The NBI
Team headed by Attorneys Saunar and Somera arrested Dick
Perlas, Atty. Acejas and Jose Victoriano after the latter picked up the
brown envelope containing marked money representing the amount
being allegedly demanded. Only Perlas, Acejas and Victoriano were
brought to the NBI Headquarters.[10]

Version of the Prosecution

Testifying for the prosecution were Bethel Grace Pelingon Aoyagi,

Filomeno Jun Basaca Pelingon, Jr., and Carlos Romero Saunar.[11]

The prosecution evidence showed that it was during a meeting on

January 5, 1994, when P1 million as consideration for the passport was
demanded. Conanan averred that Aoyagi was a drug trafficker and Yakuza
member. The money was to be used to settle the alleged problem and to
facilitate the processing of a permanent visa. When Pelingon negotiated to
lower the amount demanded, Conanan stated that there were many of
them in the Bureau of Immigration and Deportation (BID).[12]

During the second meeting held at Hotel Nikko, Pelingon was

informed that the press and government enforcers were after
Aoyagi. Hernandez asked for a partial payment of P300,000, but Pelingon
said that the whole amount would be given at just one time to avoid
another meeting.[13]

After talking to Commissioner Respicio on January 11,

1994,[14] Pelingon called up Dick Perlas to schedule the exchange.

Regarding the involvement of Petitioner Acejas, the Office of the

Solicitor General (OSG) adds the following facts:

1.2. On 5 January 1994, [Acejas] and Perlas met Pelingon at

the Aristocrat Restaurant. [Acejas] informed Pelingon that he would
file a P1 million lawsuit against the BID agents who confiscated the
passport of Takao Aoyagi. [Acejas] showed Pelingon several
papers, which allegedly were in connection with the intended
lawsuit. However, when Hernandez and Conanan arrived at the
Aristocrat Restaurant, [Acejas] never mentioned to the BID agents
the P1 million lawsuit. [Acejas] just hid the papers he earlier showed
to Pelingon inside his [Acejas] bag.
 1.3. [Acejas] was present when Hernandez proposed that
Takao Aoyagi pay the amount of P1 million in exchange for the help
he would extend to him (Takao) in securing a permanent visa in the
Philippines. [Acejas], who was Aoyagis lawyer, did nothing.

1.4. On 10 January 1994, [Acejas], Pelingon, Perlas and

Hernandez met at the Hotel Nikko. Thereat, Hernandez informed the
group that certain government officials and even the press were after
Takao Aoyagi. Hernandez said that Takao Aoyagi can make a
partial payment of P300,000.00. Pelingon however, assured the
group that Takao Aoyagi would pay in full the amount of P1 million
so as not to set another meeting date. [Acejas] kept quiet throughout
the negotiations.

xxxxxxxxx

1.5.a. [Acejas] was present during the entrapment that took

place at the Diamond Hotel. Hernandez handed the passport to
[Acejas], who handed it then to Perlas and thereafter to Takao
Aoyagi. After Takao Aoyagi went over his confiscated passport,
Bethel Grace handed to Hernandez the envelope[15] containing the
supposed P1 million.Hernandez refused and motioned that [Acejas]
be the one to receive it. [Acejas] willingly got the envelope and
placed it beside him and Perlas.

x x x before Hernandez handed out Aoyagis pass- port, he

reminded the group of their earlier agreement of kaliwaan, i.e., that
after the passport is released, the Aoyagis should give the P1
million.[16]
 Version of the Defense

Vladimir S. Hernandez, Expedito S. Perlas, Francisco SB. Acejas III, Victor

D. Conanan and Ponciano M. Ortiz testified for the defense.[17]

To the Sandiganbayans narration, Hernandez adds:

6. x x x [Hernandez], an intelligence agent of the Bureau of

Immigration and Deportation (BID), went to the house of Private
Respondents Takao and Bethel Grace Aoyagi to enforce and serve
a Mission Order issued and assigned to him by BID Commissioner
Zafiro Respicio on December 13, 1993, for the arrest of Takao
Aoyagi.

7. When Bethel Grace showed [Hernandez] her husbands

passport, [Hernandez] found out that the latters [authority] to stay
had already been duly extended. He invited private respondents to
go with him to the BID office. They declined, but made a written
undertaking to appear at the BID office for investigation
on December 20, 1993. As security for said undertaking, Bethel
Grace Aoyagi entrusted to [Hernandez] her husbands passport,
receipt of which [Hernandez], in return, acknowledge[d] in the same
instrument.
 8. On January 19, 1994, [Hernandez] signified that the record
of Aoyagi has been cleared and that he can pick up his passport at
the BID office. In connection therewith, [Hernandez] was invited by
Perlas to make the return at a lunchtime meeting to be held at the
Diamond Hotel Coffee Shop. Upon arrival thereat, [Hernandez] gave
the passport to Atty. Acejas, Aoyagis counsel, and within less than
ten minutes, he left the coffee shop.[18]

In his Petition, Acejas narrates some more occurrences as follows:

1. 18th December 1993 The law firm of Lucenario Margate Mogpo

Tiongco & Acejas was engaged by the spouses Takao Aoyagi and
Bethel Grace Pelingon Aoyagi. x x x.

xxxxxxxxx

3. 22nd December 1993

a) The managing partner of the law firm, Atty. Lucenario, briefed

[Acejas] about the facts regarding the confiscation by agents of the
BID of the passport belonging to a Japanese client. x x x.

b) Thereafter, [Acejas] was tasked by Atty. Lucenario to meet his

brother-in-law Mr. Expedito Perlas, who happened to be a policeman
and a friend of Mr. Takao Aoyagi. Thus, [Acejas] met Mr. Perlas for
the first time in the afternoon of this date.
c) Also, for the first time, [Acejas] met the clients, spouses Aoyagis,
at the Diamond Hotel, where they were staying. x x x [Acejas]
advised them that the law firm decided that the clients can file an
action for Replevin plus Damages for the recovery of the Japanese
passport.

d) The CONTRACT FOR LEGAL SERVICES was signed between

the client and the law firm, thru [Acejas] as partner thereof. x x x The
amount of Fifty Thousand Pesos (Php.50,000.00) was agreed to be
paid by way of Case Retainers/Acceptance Fees, which was
supposed to be payable upon (the) signing (t)hereof, and the sum of
Php.2,000.00 by way of appearance fee. However, the client
proposed to pay half only of the acceptance fee (Php.25,000.00),
plus the estimated judicial expenses for the filing or docket fees
(Php.15,000.00). x x x It was then further agreed that the balance of
Php.25,000.00 was supposed to be given upon the successful
recovery of the Japanese passport.

e) The clients informed [Acejas] that they are supposed to leave for
Davao the following day on the 23rd because they will spend their
Christmas in Davao City; but they promised that they will be back on
the 26th, which is a Sunday, so that on the 27th, which is a Monday,
the complaint against the BID officers will have to be filed in Court.

xxxxxxxxx

6. 27th December 1993 (T)he law office received word from Mr.
Perlas that the Japanese did not come back on the
26th (December), x x x so that the case cannot be filed on the
27th instead (it has) to wait for clients instruction.
7. 4th January 1994 In the late afternoon, the law firm received a
telephone call from Mr. Perlas informing (it) that the Japanese is
already in Manila and he was requesting for an appointment with
any of the lawyer of the law firm on January 5, 1994.

8. 5th January 1994 [Acejas] met for the first time Mr. Filomeno
Pelingon Jr. including a certain Nimoto Akira.

x x x.

b) [Acejas] told Mr. Pelingon Jr. that all the pleadings are ready for
filing but, of course, the Japanese client and the wife should first
read the complaint and sign if they want to pursue the filing of the
complaint against the BID agents.

c) For the first time, Mr. Pelingon advised against the intended filing
of the case. x x x He instead suggested that he wants to directly
negotiate with the BID agents.

d) Thereafter, Mr. Pelingon instructed Mr. Dick Perlas to contact the

BID agent who confiscated the Japanese passport. Mr. Perlas and
Mr. Pelingon were able to contact the BID agent.

e) For the first time [Acejas] saw Mr. Hernandez, when the latter
arrived and also accused Victor Conanan. In the course of the
meeting, a confrontation ensued between [Acejas] and [Hernandez]
concerning the legal basis for the confiscation of the
passport. [Acejas] demanded for the return of the Japanese
passport x x x. Mr. Hernandez said that if there are no further
derogatory report concerning the Japanese client, then in a matter of
week (from January 5 to 12), he will return the passport.
f) [Acejas] gave an ultimatum to Mr. Hernandez that if the Japanese
passport will not be returned in one (1) weeks time, then (the law
firm) will pursue the filing of the replevin case plus the damage suit
against him including the other BID agents.

g) x x x Mr. Pelingon Jr. for the second time advised against the
filing thereof saying that his Japanese brother-in-law would like to
negotiate or in his own words magbibigay naman [i.e. will give
money anyway].

9. 8th January 1994

a) Again, Mr. Perlas called the law office and informed x x x that the
Japanese client is now in Manila. Petitioner attended the meeting
they arranged in (Makati) and meet Dick Perlas, Vladimir Hernandez
and Pelingon Jr. x x x.

b) x x x according to Pelingon Jr., the Japanese does not want to

meet with anybody because anyway they are willing to pay or
negotiate.

c) [Hernandez was also] present at the meeting and [Acejas] met

him for the second time. x x x [Acejas] said that if [Hernandez] will
not be able to return the passport on or before January 12, 1994,
then the law firm will have no choice but to file the case against
him x x x. Again, for the third time Mr. Pelingon warned against the
filing of the case because he said that he would directly negotiate
with the BID agents.
d) The Makati meeting ended up with the understanding that Mr.
Hernandez will have to undertake the return [of] the Japanese
passport on or before January 12, 1994.

10. 12th January 1994

a) Mr. Perlas called up the law office informing that the Japanese
client was already in Manila and was requesting for an appointment
with the lawyers at lunchtime of January 12 at the Diamond Hotel
where he was billeted.

xxxxxxxxx

c) x x x x x x x x x

At this meeting, the Japanese was inquiring on the status of the

case and he was wondering why the Japanese passport is not yet
recovered when according to him he has already paid for the
attorney fees. And so, [Acejas] explained to him that the case has to
be filed and they still have to sign the complaint, the Special Power
of Attorney and the affidavit relative to the filing of replevin case. But
the Japanese would not fully understand. So, Pelingon Jr. again
advised against the filing of the case saying that since there is no
derogatory record of Mr. Aoyagi at the BID office, then the BID
agents should return the Japanese passport.

xxxxxxxxx
e) Thereafter, Pelingon, Jr. and Dick Perlas x x x tried to contact Mr.
Hernandez. Since, they were able to contact the latter, we waited
until around 2:00 p.m.. When Mr. Hernandez came, he said that the
Japanese client is cleared at the BID office and so, he can return the
Japanese passport and he gave it to [Acejas]. x x x When [Acejas]
received the Japanese passport, (he) checked the authenticity of the
documents and finding that it was in good order, (he) attempted to
give it to the Japanese client.

Very strangely when [Acejas] tried to hand-over the Japanese

passport to the Japanese across the table, the Japanese was
motioning and wanted to get the passport under the
table. x x x [Acejas] found it strange. (He) x x x thought that it was a
Japanese custom to receive things like that under the table. But
nonetheless, [Acejas] did not give it under the table and instead
passed it on to Mr. Dick Perlas who was seated at (his) right. And
so, it was Mr. Dick Perlas who took the passport from [Acejas] and
finally handed it over to Mr. Aoyagi. x x x. After that, there was a little
chat between Mr. Hernandez and the client, and Mr. Hernandez did
not stay for so long and left.

Still, thereafter, (w)hen the Japanese passport was received, Bethel

Grace Aoyagi and [Acejas] were talking and she said since the
Japanese passport had been recovered, they are now willing to pay
the Php.25,000.00 balance of the acceptance fee.

Mrs. Aoyagi was giving [Acejas] a brown envelope but she want[ed]
Mr. Hernandez to receive it while Mr. Hernandez was still around
standing. But Mr. Hernandez did not receive it.

Since, the payment is due to the law firm, [Acejas] received the
brown envelope.
 xxxxxxxxx

Not long after, [Acejas] saw his companion, accused Mr.

Victoriano, who was signaling something as if there was a sense of
urgency. [Acejas] immediately stood up and left hurriedly. When
[Acejas] approached Mr. Victoriano, he said that the car which
[Acejas] parked in front of the Diamond Hotel gate, somebody took
the car. [Acejas] went out and checked and realized that it was valet
parking so it was the parking attendant who took the car and
transferred the car to the parking area. [Acejas] requested Mr.
Victoriano to get (the) envelope and the coat, at the table.

g) When [Acejas] went out, [Acejas] already looked for the

parking attendant to get the car. When the car arrived, [Acejas] just
saw from the doors of the Diamond Hotel Mr.Jose Victoriano and Mr.
Dick Perlas coming out already in handcuffs and collared by the NBI
agents. They then were taken to the NBI, except the accused
Vladimir Hernandez.[19]

Ruling of the Sandiganbayan

The Sandiganbayan ruled that the elements of direct bribery,[20] as well as

conspiracy in the commission of the crime,[21] had been proven. Hernandez
and Conanan demanded money;[22] Perlas negotiated and dealt with the
complainants;[23] and Acejas accepted the payoff and gave it to Perlas.[24]
 Victoriano was acquitted on reasonable doubt.[25] Although he had
picked up the envelope containing the payoff, this act did not sufficiently
show that he had conspired with the other accused.[26]

The Sandiganbayan did not give credence to the alleged belief

of Acejas that the money was the balance of the law firms legal fees.[27] If
he had indeed believed that the money was payable to him, he should have
kept and retained it. The court then inferred that he had merely been
pretending to protect his clients rights when he threatened to file a suit
against Hernandez.[28]

The January 3, 2003 Resolution acquitted Conanan and denied the Motions
for Reconsideration of Hernandez, Acejas and Perlas. According to the
Sandiganbayan, Conanan was not shown to be present during the meetings
on January 8 and 12, 1994.[29] His presence during one of those meetings,
on January 5, 1994, did not conclusively show his participation as a co-
conspirator.
 The January 14, 2003 Resolution denied Acejas Supplemental
Motion, which prayed for a new trial.

The Issues

Petitioner Hernandez raises the following issues:

I. Whether or not respondent court erred in ruling that [Hernandez]

was part of the conspiracy to extort money from private
respondents, despite lack of clear and convincing evidence.

II. Whether or not the Honorable Sandiganbayan gravely abused its

discretion when it overlooked the fact that the legal requisites
of the crime are not completely present as to warrant
[Hernandez] complicity in the crime charged.

III. Whether or not respondent Sandiganbayan, 5th Division, ruled

erroneously when it relied solely on the naked and
uncorroborated testimonies of the late Filomeno Jun Pelingon,
Jr. in order to declare the existence of a conspiracy to commit
bribery, as well as the guilt of the accused.

IV. Whether or not [respondent] courts acquittal of co-accused Victor

Conanan and its conviction of [Hernandez] for the offense as
charged effectively belies the existence of a conspiracy.
 V. Whether or not the respondent Sandiganbayan committed grave
abuse of discretion amounting to lack of, or in excess of
jurisdiction when it found [Hernandez] guilty beyond
reasonable doubt of the crime of direct bribery.[30]

On the other hand, Petitioner Acejas simply enumerates the

following points:

1. The Conspiracy Theory

2. The presence of lawyer-client relationship; duty to clients cause;

lawful performance of duties

3. Instigation not entrapment

4. Credibility of witness and testimony

5. Affidavit of desistance; effect: creates serious doubts as to the

liability of the accused

6. Elements of bad faith

7. Elements of the crime (direct bribery)

8. Non-presentation of complaining victim tantamount to suppression

of evidence[31]
 In the main, petitioners are challenging the finding of guilt against
them. The points they raised are therefore intertwined and will be discussed
jointly.

The Courts Ruling

The Petitions have no merit.

Main Issue:
Finding of Guilt

The crime of direct bribery exists when a public officer 1)

agrees to perform an act that constitutes a crime in consideration of any
offer, promise, gift or present; 2) accepts the gift in consideration of the
execution of an act that does not constitute a crime; or 3) abstains from the
performance of official duties.[32]
 Petitioners were convicted under the second kind of direct bribery,
which contained the following elements: 1) the offender was a public
officer, 2) who received the gifts or presents personally or through another,
3) in consideration of an act that did not constitute a crime, and 4) that act
related to the exercise of official duties.[33]

Hernandez claims that the prosecution failed to show his involvement in

the crime. Allegedly, he was merely implementing Mission Order No. 93-
04-12, which required him to investigate Takao Aoyagi.[34] The passport
was supposed to have been voluntarily given to him as a guarantee to
appear at the BID office, but he returned it upon the instruction of his
superior.[35]

The chain of circumstances, however, contradicts the contention of

Hernandez. It was he who had taken the passport of Takao Aoyagi.[36] On
various dates,[37] he met with Takao and Bethel Grace Aoyagi, and
also Pelingon, regarding the return of the passport. Hernandez then asked
for a down payment on the payoff,[38] during which he directed Bethel
Grace to deliver the money to Acejas.[39]

Bethel Grace Aoyagis testimony, which was confirmed by the other

witnesses, proceeded as follows:
PROSECUTOR MONTEMAYOR:

Q: When Vlademir Hernandez arrived, what happened?

A: He got the passport from his pocket and passed it on to

Atty. Acejas, sir.

Q: What happened after he gave the passport to Atty. Acejas?

A: [Acejas] gave the passport to Mr. Expedito Perlas, sir.

Q: After that, what happened?

A: Then, [Perlas] gave it to Mr. Aoyagi, sir.

Q: The passport?

A: Yes, sir.

Q: And when Mr. Aoyagi received the passport, what did you
do or what did Mr. Aoyagi do?

A: He checked all the pages and he kept it, sir.

xxxxxxxxx

Q: What did you do with that money after Mr. Aoyagi received
the passport?

A: Because our agreement is that after giving the passport we

would give the money so when Mr. Perlas handed to my
husband the passport, I gave the money placed on my
 lap to my husband and he passed it to Mr. Hernandez
who refused the same.

ATTY. ACEJAS:

Your Honor, please, may I just make a clarification that when the
witness referred to the money it pertains to the brown envelope
which allegedly contains the money x x x .

AJ ESCAREAL:

Noted.

PROSECUTOR MONTEMAYOR:

Q: Did Mr. Hernandez got hold or touched the envelope?

A: No, sir.

Q: When he [did] not want to receive the envelope, what did

your husband do?

A: When Mr. Vlademir Hernandez refused to receive the

money, he pointed to Atty. Acejas so my husband
handed it to Atty. Acejas who received the same and
later on passed it to Mr. Perlas.

Q: When Mr. Hernandez pointed to Atty. Acejas, did he say

anything?

A: None, sir, he just motioned like this.

INTERPRETER:

Witness motioning by [waving] her two (2) hands, left and

right.

PROSECUTOR MONTEMAYOR:

Q: And at the same time pointed to Atty. Acejas?

A: Yes, sir.

Q: And your husband gave the envelope to Atty. Acejas?

A: Yes, sir.

Q: And Atty. Acejas, in turn, handed the said envelope to

whom?

A: Expedito Perlas, sir.

Q: Did Expedito Perlas [receive] that envelope?

A: Yes, sir.

Q: After that, what happened?

A: Mr. Perlas put the money on his side in between him and
Atty. Acejas, sir.
 Q: And then, what happened?

A: After the money was placed where it was, we were

surprised, I think, it happened in just seconds[.] Mr.
Vlademir Hernandez immediately left and then all of a
sudden somebody came and picked up the envelope,
sir.[40]

Significantly, Hernandez does not address the lingering questions about

why Takao Aoyagi or his representatives had to negotiate for the retrieval
of the passport during the meetings held outside the BID. Ponciano Ortiz,
chief of the Operation and Intelligence Division of the BID, testified that it
was not a standard operating procedure to officially return withheld
passports in such locations.[41] It can readily be inferred that Hernandez had
an ulterior motive for withholding the passport for some time despite the
absence of any legal purpose.

Also, Hernandez cannot claim innocence based

on Conanans acquittal.[42] While the testimony of Pelingon was the only
evidence linking Conanan to the conspiracy,[43] there was an abundance of
evidence showing Hernandezs involvement.
Acejas, on the other hand, belies his involvement in the conspiracy. He
attacks the prosecutions version that he was silent during the negotiations
for the return of the passport.[44] According to him, he kept giving
Hernandez an ultimatum to return the passport, with threats to file a court
case.

Acejas testified that he had wanted to file a case against Hernandez, but
was prevented by Spouses Aoyagi. His supposed preparedness to file a case
against Hernandez might have just been a charade and was in fact belied
by Pelingons testimony regarding the January 5, 1994 meeting:
ATTY. VALMONTE:

Q: Who arrived first at Aristocrat Restaurant, you or Acejas?

A: Acejas arrived together with Dick Perlas[. T]hey arrived

ahead of me, sir.

xxxxxxxxx

Q: When the three (3) of you were talking that was the time
that Atty. Acejas was showing you documents that he
was going to file [a] P1 million damage suit against
Hernandez?

A: Yes, sir.
 Q: Now, is it not that when Hernandez and Cunanan arrived
and you were talking with each other, Atty. Acejas also
threatened, reiterated his threat to Hernandez that he
would file [a] P1 million damage suit should Hernandez
[fails] to return the passport?

A: When the group [was] already there, the P1 million

[damage suit] was not [anymore] mentioned, sir.[45]

Even assuming that Acejas negotiated for the return of the passport on his
clients behalf, he still failed to justify his actions during the entrapment
operation. The witnesses all testified that he had received the purported
payoff. On this point, we recount the testimony of Bethel Grace Aoyagi:

PROSECUTOR MONTEMAYOR:

xxxxxxxxx

Q: When he [did] not want to receive the envelope, what did

your husband do?

A: When Mr. Vlademir Hernandez refused to receive the

money, he pointed to Atty. Acejas so my husband
handed it to Atty. Acejas who received the same and
later on passed it to Mr. Perlas.

Q: When Mr. Hernandez pointed to Atty. Acejas, did he say

anything?
A: None, sir, he just motioned like this.

INTERPRETER:

Witness motioning by [waving] her two (2) hands, left and

right.

PROSECUTOR MONTEMAYOR:

Q: And at the same time pointed to Atty. Acejas?

A: Yes, sir.

Q: And your husband gave the envelope to Atty. Acejas?

A: Yes, sir.

Q: And Atty. Acejas, in turn, handed the said envelope to

whom?

A: Expedito Perlas, sir.

xxxxxxxxx

Q: After that, what happened?

A: Mr. Perlas put the money on his side in between him and
Atty. Acejas, sir.
 Q: And then, what happened?

WITNESS:

A: After the money was placed where it was, we were

surprised, I think, it happened in just seconds[.] Mr.
Vladimir Hernandez immediately left and then all of a
sudden somebody came and picked up the envelope,
sir.

PROSECUTOR MONTEMAYOR:

Q: Do you know the identity of that somebody who picked up

the envelope?

xxxxxxxxx

A: Victoriano, sir.[46]

Acejas failed to justify why he received the payoff money. It would be

illogical to sustain his contention that the envelope represented the balance
of his firms legal fees. That it was given to Hernandez immediately after
the return of the passport leads to the inescapable conclusion that the
money was a consideration for the return. Moreover, Acejas should have
kept the amount if he believed it to be his. The Court agrees with the
Sandiganbayans pronouncement on this point:

x x x. If he believed that the brown envelope contained the balance

of the acceptance fee, how come he passed it to Perlas? His
passing the brown envelope to Perlas only proves that the same did
not contain the balance of the acceptance fee; otherwise, he should
have kept and retained it. Moreover, the three prosecution witnesses
testified that the brown envelope was being given to Hernandez who
refused to accept the same. This further shows that the brown
envelope was not for the balance of the acceptance fee because, if it
were, why was it given to Hernandez.

xxxxxxxxx

Acejas defense was further weakened by the fact that his testimony
as to why he left immediately after the brown envelope was given to
him was uncorroborated. He should have presented accused
Victoriano to corroborate his testimony since it was the latter who
allegedly called him and caused him to leave their table. This, he did
not do. The ineluctable conclusion is that he was, indeed, in cahoots
with his co-accused.[47]

Lawyers Duty
Acejas alleges that the Sandiganbayan failed to appreciate his lawyer-client
relationship with the complainants. He was supposedly only acting in their
best interest[48] and had the right to be present when the passport was to be
returned.[49]

True, as a lawyer, it was his duty to represent his clients in dealing

with other people. His presence at Diamond Hotel for the scheduled
return of the passport was justified.This fact, however, does not support
his innocence

Acejas, however, failed to act for or represent the interests of his

clients. He knew of the payoff, but did nothing to assist or protect their
rights, a fact that strongly indicated that he was to get a share. Thus, he
received the money purporting to be the payoff,
even if he was not involved in the entrapment operation. The facts
revealed that he was a conspirator.

The Court reminds lawyers to follow legal ethics[50] when confronted by

public officers who extort money. Lawyers must decline and report the
matter to the authorities.[51] If the extortion is directed at the client, they
must advise the client not to perform any illegal act. Moreover, they must
report it to the authorities, without having to violate the attorney-client
privilege.[52] Naturally, they must not participate in the illegal act.[53]

Acejas did not follow these guidelines. Worse, he conspired with the
extortionists.

Instigation

Also futile is the contention of petitioners that Pelingon instigated the

situation to frame them into accepting the payoff.[54] Instigation is the
employment of ways and means to lure persons into the commission of an
offense in order to prosecute them.[55] As opposed to entrapment, criminal
intent originates in the mind of the instigator.[56]

There was no instigation in the present case, because the chain of

circumstances showed an extortion attempt. In other words, the criminal
intent originated from petitioners, who had arranged for the payoff.
 During the cross-examination of Bethel Grace Aoyagi, pertinent was
Associate Justice Escareal clarifying question as follows:

AJ ESCAREAL:

[Q:] Did Mr. Hernandez say anything when he returned the

passport to your husband?

A: He did not say anything except that he instructed [the]

group to abide with the agreement that upon handing of
the passport, the money would also be given
immediately (magkaliwaan).[57]

Alleged Discrepancies

According to Acejas, Pelingons testimonies given in his Complaint-

Affidavit, Supplemental-Affidavit, inquest testimony, testimony in court,
and two Affidavits of Desistance were contradictory.[58] He cites these
particular portions of Pelingons Affidavit:

5. That having been enlightened of the case, and conscious

that I might be prosecuting innocent men, I have decided on my own
 disposition, not to further testify against any of the accused in the
Sandiganbayan or in any court or tribunal, regarding the same cause
of action.

6. That this affidavit of desistance to further prosecute is

voluntarily executed, and that no reward, promise, consideration,
influence, force or threat was executed to secure this affidavit.[59]

Pelingon testified that he had executed the Affidavit of Desistance

because of a threat to his life.[60] He did not prepare the Affidavit; neither
was it explained to him.Allegedly, his true testimony was in the first
Complaint-Affidavit that he had executed.[61]

By appearing and testifying during the trial, he effectively repudiated

his Affidavit of Desistance. An affidavit of desistance must be ignored
when pitted against positive evidence given on the witness stand.[62]

Acejas has failed to identify the other material points that were
allegedly inconsistent. The Court therefore adopts the Sandiganbayans
finding that these were minor details that were not indicative of the lack of
credibility of the prosecution witnesses.[63] People v. Eligino[64] is in point:
 x x x. While witnesses may differ in their recollections of an
incident, it does not necessarily follow from their disagreement that
all of them should be disbelieved as liars and their testimony
completely discarded as worthless. As long as the mass of testimony
jibes on material points, the slight clashing statements neither dilute
the witnesses credibility nor the veracity of their testimony. Thus,
inconsistencies and contradictions referring to minor details do not,
in any way, destroy the credibility of witnesses, for indeed, such
inconsistencies are but natural and even enhance credibility as
these discrepancies indicate that the responses are honest and
unrehearsed.[65]

Suppression of Evidence

Acejas further raises the issue of suppression of evidence. Aoyagi, from

whom the money was supposedly demanded, should have been presented
by the prosecution as a witness.[66]

The discretion on whom to present as prosecution witnesses falls on the

People.[67] The freedom to devise a strategy to convict the accused belongs
to the prosecution.[68]Necessarily, its decision on which evidence, including
which witnesses, to present cannot be dictated by the accused or even by
the trial court.[69] If petitioners believed that Takao Aoyagis testimony was
important to their case, they should have presented him as their witness.[70]
 Finally, Acejas claims that his Comment/Objection to the
prosecutions Formal Offer of Evidence was not resolved by the
Sandiganbayan.[71] In that Comment/Objection, he had noted the lateness
in the filing of the Formal Offer of Evidence.

It may readily be assumed that the Sandiganbayan admitted the

prosecutions Formal Offer of Evidence upon the promulgation of its
Decision. In effect, Acejas Comment/Objection was deemed immaterial. It
could not overrule the finding of guilt. Further, it showed no prayer that
the Sandiganbayan needed to act upon.[72]

Finally we reiterate that, as a rule, factual findings of the Sandiganbayan are

conclusive upon this Court.[73] We are convinced that these were clearly
based on the evidence adduced in this case.

In sum, we find that the prosecution proved the elements of direct

bribery. First, there is no question that the offense was committed by a
public officer. BID Agent Hernandez extorted money from the Aoyagi
spouses for the return of the passport and the promise of assistance in
procuring a visa. Petitioner Acejas was his co-conspirator.Second, the
offenders received the money as payoff, which Acejas received for the
group and then gave to Perlas. Third, the money was given in consideration
of the return of the passport, an act that did not constitute a
crime. Fourth, both the confiscation and the return of the passport were
made in the exercise of official duties.

For taking direct part in the execution of the crime, Hernandez and Acejas
are liable as principals.[74] The evidence shows that the
parties conspired to extort money from Spouses Aoyagi. A conspiracy
exists even if all the parties did not commit the same act, if the participants
performed specific acts that indicated unity of purpose in accomplishing a
criminal design.[75] The act of one is the act of all.

WHEREFORE, the Petitions are DENIED, and the assailed

Decision and Resolutions AFFIRMED. Costs against petitioners.

SO ORDERED.

ARTEMIO V. PANGANIBAN
Chief Justice
Chairman, First Division

THIRD DIVISION
JESUS TORRES, G.R. No. 175074
Petitioner, Present:
VELASCO, JR., J., Chairperson,
PERALTA,
ABAD,
MENDOZA, and
- versus - SERENO,* JJ.
Promulgated:

August 31, 2011

PEOPLE OF THE PHILIPPINES,

Respondent.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

PERALTA, J.:

This is a petition for review on certiorari seeking to reverse and set aside the
Resolution[1] dated September 6, 2006 and Resolution dated October 17, 2006[2] of
the Court of Appeals (CA) in CA-G.R. CR No. 29694.
The factual and procedural antecedents are as follows:

In an Information[3] dated November 15, 1994, petitioner Jesus U. Torres

was charged with the crime of Malversation of Public Funds before the Regional
Trial Court (RTC), Branch 42, Virac, Catanduanes, the accusatory portion of
which reads:
That on or about the 27th day of April 1994, or sometime subsequent
thereto, in the Municipality of Virac, Catanduanes, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, a public officer,
being then the Principal of Viga Rural Development High School, Viga,
Catanduanes, and as such by reason of his office and duties is responsible and
 accountable for public funds entrusted to and received by him, to wit: PNB
Checks (sic) Nos. C-983182-Q for P42,033.32; C-983183-Q for P95,680.89; C-
983184-Q for P58,940.33, all dated April 26, 1994 in the total amount of ONE
HUNDRED NINETY-SIX THOUSAND SIX HUNDRED FIFTY-FOUR PESOS
and FIFTY-FOUR CENSTAVOS (P196,654.54), Philippine Currency,
representing salaries, salary differentials, additional compensation allowance and
Personal Emergency Relief Allowance from January to March 1994 of the
employees of the said school, taking advantage of his position and committing the
offense in relation to his office, encashed said checks with the Philippine National
Bank, Virac, Catanduanes Branch and once in possession of the money, did then
and there willfully, unlawfully and feloniously and with grave abuse of
confidence, misapply, misappropriate, embezzle and convert to his personal use
and benefit the aforementioned amount of money, to the damage and prejudice of
the Government.

Contrary to law.

Upon his arraignment, petitioner pleaded not guilty to the crime

charged. Consequently, trial on the merits ensued.

Evidence for the Prosecution

[Petitioner] Jesus Torres y Uchi was the principal of Viga Rural
Development High School (VRDHS). On April 26, 1994, he directed Edmundo
Lazado, the schools collection and disbursing officer, to prepare the checks
representing the teachers and employees salaries, salary differentials, additional
compensation allowance (ACA) and personal emergency relief allowance (PERA)
for the months of January to March, 1994.Lazado prepared three (3) checks in the
total amount of P196,654.54, all dated April 26, 1994, viz: PNB Check Nos. C-
983182-Q for P42,033.32; C-983183-Q for P95,680.89; C-983184-Q
for P58,940.33 (Exhs. A, B and C). The [petitioner] and Amador Borre, Head
Teacher III, signed the three (3) checks (TSN, Aug. 30, 2001, pp. 4-8).

Upon the instruction of the [petitioner], Lazado endorsed the checks and
handed them to the accused. It was the custom in the school for Lazado to endorse
the checks representing the teachers salaries and for the accused to encash them at
PNB, Virac Branch and deliver the cash to Lazado for distribution to the teachers
(Id., pp. 12-17).
 The following day, April 27, 1994, the accused encashed the three (3)
checks at PNB, Virac Branch but he never returned to the school to deliver the
money to Lazado (Id., pp. 8-9).[4]

Evidence for the Defense

The [petitioner] admitted that he encashed the subject checks at PNB,

Virac Branch in the morning of April 27, 1994 but instead of going back to the
school, he proceeded to the airport and availed of the flight to Manila to seek
medical attention for his chest pain. Two (2) days after, around 4:30 oclock in the
morning of April 29, 1994, while he and his nephew were on the road waiting for
a ride, three (3) armed men held them up and took his bag containing his personal
effects and the proceeds of the subject checks. He reported the incident to the
police authorities, but he failed to recover the money (TSN, Nov. 12, 2002, pp.
11-25).[5]

On August 31, 2005, after finding that the prosecution has established all the
elements of the offense charged, the RTC rendered a Decision[6] convicting
petitioner of the crime of Malversation of Public Funds, the decretal portion of
which reads:

WHEREFORE, the Court finds the accused Jesus Torres y Uchi GUILTY
beyond reasonable doubt of the crime of malversation of public funds as defined
and penalized under Article 217 of the Revised Penal Code, and hereby sentences
him to suffer the indeterminate penalty of imprisonment ranging from 12 years
and 1 day of reclusion temporal, as minimum, and to 18 years, 8 months and 1
day of reclusion temporal, as maximum; to suffer the penalty of perpetual special
disqualification; and to pay the fine of P196,654.54 with subsidiary imprisonment
in case of insolvency.

SO ORDERED.[7]

On September 8, 2005, petitioner filed his Notice of Appeal,[8] where it was

indicated that he was seeking recourse and appealing the decision of the RTC
before the Court of Appeals.
 On February 10, 2006, petitioner filed a Manifestation and
Motion[9] acknowledging that he filed the appeal before the wrong
tribunal. Petitioner eventually prayed, among other things, that the case be referred
to the Sandiganbayan for appropriate action.

In its Comment[10] filed on June 29, 2006, the Office of the Solicitor General
prayed that the appeal be dismissed outright, since transmittal to the proper court,
in cases of erroneous modes of appeal, are proscribed.

On September 6, 2006, the CA issued a Resolution dismissing the appeal,

the dispositive portion of which reads:

WHEREFORE, pursuant to the provisions of Section 2, Rule 50 of

the Rules and Section 4 of SC Circular No. 2-90, the instant appeal hereby is
DISMISSED OUTRIGHT for lack of jurisdiction.

SO ORDERED.[11]

Petitioner filed a Motion for Reconsideration,[12] but was denied in the

Resolution[13] dated October 17, 2006.

Hence, the petition raising the sole error:

WHETHER THE HONORABLE COURT OF APPEALS ERRED IN

DISMISSING THE PETITIONERS APPEAL OUTRIGHT INSTEAD OF
CERTIFYING THE CASE TO THE PROPER COURT.[14]
Petitioner maintains that he inadvertently filed the notice of appeal before
the Court of Appeals instead of the Sandiganbayan. Petitioner implores that the
Court exercise its sound discretion and prerogative to relax compliance to sound
procedural rules and to decide the case on the merits, considering that from the
beginning, he has been candid and straightforward about the fact that the case was
wrongfully filed with the Court of Appeals instead of the Sandiganbayan.
 The petition is without merit.

Paragraph 3, Section 4 (c) of Republic Act No. 8249 (RA 8249),[15] which
defined the jurisdiction of the Sandiganbayan, provides:

The Sandiganbayan shall exercise exclusive appellate jurisdiction over

final judgments, resolutions or orders of the regional trial courts whether in the
exercise of their own original jurisdiction or of their appellate jurisdiction as
herein provided.[16]

Hence, upon his conviction, petitioners remedy should have been an appeal
to the Sandiganbayan. There is nothing in said paragraph which can conceivably
justify the filing of petitioners appeal before the Court of Appeals instead of the
Sandiganbayan. Clearly, the Court of Appeals is bereft of any jurisdiction to
review the judgment petitioner seeks to appeal.[17]

It must be emphasized, however, that the designation of the wrong court

does not necessarily affect the validity of the notice of appeal. However, the
designation of the proper court should be made within the 15-day period to
appeal. Once made within the said period, the designation of the correct appellate
court may be allowed even if the records of the case are forwarded to the Court of
Appeals. Otherwise, Section 2, Rule 50 of the Rules of Court would apply, [18] the
relevant portion of which states:
Sec. 2. Dismissal of improper appeal to the Court of Appeals. x x x

An appeal erroneously taken to the Court of Appeals shall not be

transferred to the appropriate court, but shall be dismissed outright.[19]

In the case at bar, petitioner sought correction of the error in filing the appeal
way beyond the expiration of the period to appeal the decision. The RTC
promulgated its Decision on August 31, 2005. Petitioner filed his Notice of Appeal
on September 8, 2005. Petitioner tried to correct the error only on February 10,
2006 when he filed his Manifestation and Motion. Clearly, this is beyond the 15-
day period to appeal from the decision of the trial court. Therefore, the CA did not
commit any reversible error when it dismissed petitioners appeal for lack of
jurisdiction.

Besides, even if we look into the merits of his arguments, the case is doomed
to fail. Contrary to petitioners argument, We find that he is an accountable officer
within the contemplation of Article 217[20] of the Revised Penal Code, hence, is
untenable.
An accountable public officer, within the purview of Article 217 of the
Revised Penal Code, is one who has custody or control of public funds or property
by reason of the duties of his office.[21] The nature of the duties of the public officer
or employee, the fact that as part of his duties he received public money for which
he is bound to account and failed to account for it, is the factor which determines
whether or not malversation is committed by the accused public officer or
employee. Hence, a school principal of a public high school, such as petitioner,
may be held guilty of malversation if he or she is entrusted with public funds and
misappropriates the same.

Petitioner also posits that he could not be convicted under the allegations in
the Information without violating his constitutional right to be informed of the
accusations against him. He maintains that the Information clearly charged him
with intentional malversation and not malversation through negligence, which was
the actual nature of malversation for which he was convicted by the trial
court. This too lacks merit.

Malversation may be committed either through a positive act of

misappropriation of public funds or property, or passively through
negligence.[22] To sustain a charge of malversation, there must either be criminal
intent or criminal negligence, and while the prevailing facts of a case may not
show that deceit attended the commission of the offense, it will not preclude the
reception of evidence to prove the existence of negligence because both are equally
punishable under Article 217 of the Revised Penal Code.[23]

More in point, the felony involves breach of public trust, and whether it is
committed through deceit or negligence, the law makes it punishable and
prescribes a uniform penalty therefor. Even when the Information charges willful
malversation, conviction for malversation through negligence may still be
adjudged if the evidence ultimately proves the mode of commission of the
offense.[24] Explicitly stated

x x x [E]ven on the putative assumption that the evidence against petitioner

yielded a case of malversation by negligence, but the information was for
intentional malversation, under the circumstances of this case, his conviction
under the first mode of misappropriation would still be in order. Malversation is
committed either intentionally or by negligence. The dolo or the culpa present in
the offense is only a modality in the perpetration of the felony. Even if the mode
charged differs from mode proved, the same offense of malversation is involved
and conviction thereof is proper. x x x[25]

WHEREFORE, premises considered, the petition is DENIED. The

Resolutions dated September 6, 2006 and October 17, 2006 of the Court of
Appeals in CA-G.R. CR No. 29694 areAFFIRMED.

SO ORDERED.

DIOSDADO M. PERALTA

G.R. No. 184908 July 3, 2013

MAJOR JOEL G. CANTOS, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

VILLARAMA, JR., J.:

Petitioner Major Joel G. Cantos appeals the Decision1 of the Sandiganbayan in Criminal Case No.
SB-07-A/R-0008, which affirmed with modification the judgment2 of the Regional Trial Court (RTC) of
Manila, Branch 47, convicting him of the crime of Malversation of Public Funds under Article 217 of
the Revised Penal Code, as amended.

In an Information3 dated February 19, 2003, Major Cantos was charged as follows:

That on or about December 21, 2002 or sometime prior or subsequent thereto, in the City of Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, a public
officer, being then the Commanding Officer of the 22"d Finance Service Center, based in the
Presidential Security Group, Malacañang Park, Manila and as such is accountable for public funds
received and/or entrusted to him by reason of his office, acting in relation to his office and taking
advantage of the same, did then and there, willfully, unlawfully and feloniously take, misappropriate
and convert to his personal use and benefit the amount of THREE MILLION TWO HUNDRED
SEVENTY THOUSAND PESOS (P3,270,000.00), Philippine Currency, from such public funds
received by him by reason of his Office to the damage and prejudice of the Government in the
aforestated amount.

CONTRARY TO LAW.

Upon motion by the prosecution, the trial court issued an Order4 granting the amendment of the date
of the commission of the offense from December 21, 2002 to December 21, 2000, the error being
merely clerical. When arraigned, Major Cantos entered a plea of not guilty.5

At the trial, the prosecution presented as witness Major Eligio T. Balao, Jr.6 He testified that on
December 21, 2000, he reported for duty as Disbursing Officer at the 22nd Finance Service Unit
(FSU), Presidential Security Group (PSG), Malacañang Park, Manila. At that time, he did not notice
any unusual incident in the office. He picked up some Bureau of Internal Revenue (BIR) forms which
he filed with the BIR Office at the Port Area, Manila. He returned to the office at around 10:00 a.m.
At around 12:00 noon, his commanding officer, Major Cantos, called him to his office and informed
him that the money he (Major Cantos) was handling, the Special Duty Allowance for the month of
December, and other Maintenance Operating Expenses in the amount of more or less P3 Million
was missing from his custody. Shocked, he asked Major Cantos where he kept the money, to which
the latter replied that he placed it in the steel cabinet inside his room. He then inquired why Major
Cantos did not use the safety vault, but Major Cantos did not reply.7

Major Balao further testified that Major Cantos asked him to get a screwdriver so he went out of the
office and got one from his vehicle. He gave the screwdriver to Major Cantos, who used it to
unscrew the safety vault. Then, he left the office and handed the screwdriver to Sgt. Tumabcao.

After a few minutes, Major Cantos instructed him to go to the house of Major Conrado Mendoza in
Taguig to get the safety vault’s combination number. However, Major Mendoza was not around.
When he returned to the office at around 4:00 p.m., the National Bureau of Investigation (NBI)
personnel took his fingerprints. He learned that all the personnel of the 22nd FSU were subjected to
fingerprinting. Thereafter, Col. Espinelli tried to force him to admit that he took the money, but he
maintained that he was not the one who took it.8

In his defense, Major Cantos testified that on July 2000, he was assigned as the Commanding
Officer of the 22nd FSU of the PSG, Malacañang Park, Manila. His duty was to supervise the
disbursement of funds for the PSG personnel and to perform other finance duties as requested by
the PSG Commander, Gen. Rodolfo Diaz. On December 19, 2000, he received a check from
Director Aguas in the amount of P1,975,000 representing the Special Allowance of PSG personnel.
Accompanied by two personnel, he went to the Land Bank branch just across Pasig River and
encashed the check. He placed the money in a duffel bag and kept it inside the steel cabinet in his
office together with the P1,295,000 that was earlier also entrusted to him by Gen. Diaz. Major
Cantos added that as far as he knows, he is the only one with the keys to his office. Although there
was a safety vault in his office, he opted to place the money inside the steel cabinet because he was
allegedly previously informed by his predecessor, Major Conrado Mendoza, that the safety vault was
defective. He was also aware that all personnel of the 22nd FSU had unrestricted access to his
office during office hours.9

Major Cantos also narrated that on December 20, 2000, he arrived at the office at around 9:00 a.m.
and checked the steel filing cabinet. He saw that the money was still there. He left the office at
around 4:00 p.m. to celebrate with his wife because it was their wedding anniversary. On the
following day, December 21, 2000, he reported for work around 8:30 a.m. and proceeded with his
task of signing vouchers and documents. Between 9:00 a.m. to 10:00 a.m., he inspected the steel
cabinet and discovered that the duffel bag which contained the money was missing. He immediately
called then Capt. Balao to his office and asked if the latter saw someone enter the room. Capt. Balao
replied that he noticed a person going inside the room, but advised him not to worry because he is
bonded as Disbursing Officer.10

In a state of panic, Major Cantos asked for Capt. Balao’s help in finding the money. Capt. Balao
asked him how the money was lost and why was it not in the vault, to which he replied that he could
not put it there because the vault was defective. Capt. Balao then suggested that they should make
it appear that the money was lost in the safety vault. In pursuit of this plan, Capt. Balao went out of
the office and returned with a pair of pliers and a screwdriver. Upon his return, Capt. Balao went
directly to the vault to unscrew it. At this point, Major Cantos told him not to continue anymore as he
will just inform Gen. Diaz about the missing funds. Major Cantos was able to contact Gen. Diaz
through his mobile phone and was advised to just wait for Col. Espinelli. When Col. Espinelli arrived
at the office, Col. Espinelli conducted an investigation of the incident.11

Lt. Col. Al I. Perreras, Executive Officer of the Judge Advocate General Office (JAGO), likewise
conducted an investigation of the incident. His testimony was however dispensed with as the
counsels stipulated that he prepared the Investigation Report, and that if presented, the same would
be admitted by defense counsel.12 It likewise appears from the evidence that Police Inspector Jesus
S. Bacani of the Philippine National Police (PNP) administered a polygraph examination on Major
Cantos and the result showed that he was telling the truth.13

On April 27, 2007, the RTC rendered a decision convicting Major Cantos of the crime charged, to
wit:

WHEREFORE, in view of the foregoing premises, the Court finds the accused Major Joel G. Cantos
GUILTY beyond reasonable doubt of the crime of Malversation of Public Funds, under paragraph 4
of Article 217 of the Revised Penal Code, and, there being no mitigating or aggravating
circumstance present, hereby sentences him to an indeterminate penalty of imprisonment for a
period of ten (10) years and one (1) day of Prision Mayor, as minimum, to Eighteen (18) Years, eight
(8) months and one (1) day of Reclusion Temporal, as maximum; to reimburse the AFP Finance
Service Center, Presidential Security Group, Armed Forces of the Philippines the amount of Three
Million Two Hundred Seventy Thousand Pesos (P3,270,000.00); to pay a fine of Three Million Two
Hundred Seventy Thousand Pesos (P3,270,000.00); to suffer perpetual special disqualification from
holding any public office; and to pay the costs.

SO ORDERED.14

In rendering a judgment of conviction, the RTC explained that although there was no direct proof that
Major Cantos appropriated the money for his own benefit, Article 217 of the Revised Penal Code, as
amended, provides that the failure of a public officer to have duly forthcoming any public funds or
property with which he is chargeable, upon demand by any duly authorized officer, shall be prima
facie evidence that he has put such missing funds or property to personal uses. The RTC concluded
that Major Cantos failed to rebut this presumption.

Aggrieved, Major Cantos appealed to the Sandiganbayan questioning his conviction by the trial
court.

On July 31, 2008, the Sandiganbayan promulgated the assailed Decision, the dispositive portion of
which reads as follows:

IN VIEW OF THE FOREGOING, the Decision promulgated on May 3, 2007 in Criminal Case No. 03-
212248 of the Regional Trial Court, National Capital Judicial Region, Branch 47, Manila finding the
accused-appellant Major Joel G. Cantos GUILTY beyond reasonable doubt of the crime of
Malversation of Public Funds under Article 217 of the Revised Penal Code is hereby AFFIRMED,
with the modification that instead of being convicted of malversation through negligence, the Court
hereby convicts the accused of malversation through misappropriation. The penalty imposed by the
lower court is also likewise AFFIRMED.

SO ORDERED.15

The Sandiganbayan sustained the ruling of the RTC. It held that in the crime of malversation, all that
is necessary for conviction is proof that the accountable officer had received public funds and that he
did not have them in his possession when demand therefor was made. There is even no need of
direct evidence of personal misappropriation as long as there is a shortage in his account and
petitioner cannot satisfactorily explain the same. In this case, the Sandiganbayan found petitioner
liable for malversation through misappropriation because he failed to dispute the presumption
against him. The Sandiganbayan noted that petitioner’s claim that the money was taken by robbery
or theft has not been supported by sufficient evidence, and is at most, self-serving.

Contending that the Sandiganbayan Decision erred in affirming his convicting, Major Cantos filed a
motion for reconsideration. In its Resolution16 dated October 6, 2008, however, the Sandiganbayan
denied the motion.

Hence, the present petition for review on certiorari. Petitioner assails the Decision of the
Sandiganbayan based on the following grounds:

I.
THE HONORABLE SANDIGANBAYAN ERRED IN AFFIRMING PETITIONER'S CONVICTION FOR
MALVERSATION DESPITE ABSENCE OF EVIDENCE SHOWING THAT THE FUNDS WERE
CONVERTED TO THE PERSONAL USE OF PETITIONER.

II.

THE HONORABLE SANDIGANBAYAN ERRED IN AFFIRMING PETITIONER'S CONVICTION ON

THE BASIS OF THE MERE PRESUMPTION CREATED BY ARTICLE 217, PARAGRAPH 4, OF
THE REVISED PENAL CODE IN VIEW OF THE ATTENDANT CIRCUMSTANCES IN THE
PRESENT CASE.17

Essentially, the basic issue for our resolution is: Did the Sandiganbayan err in finding petitioner guilty
beyond reasonable doubt of the crime of malversation of public funds?

Petitioner argues that mere absence of funds is not sufficient proof of misappropriation which would
warrant his conviction. He stresses that the prosecution has the burden of establishing his guilt
beyond reasonable doubt. In this case, petitioner contends that the prosecution failed to prove that
he appropriated, took, or misappropriated, or that he consented or, through abandonment or
negligence, permitted another person to take the public funds.

On the other hand, the People, represented by the Office of the Special Prosecutor (OSP), argues
that petitioner, as an accountable officer, may be convicted of malversation of public funds even if
there is no direct evidence of misappropriation. The OSP asserts that the only evidence required is
that there is a shortage in the officer’s account which he has not been able to explain satisfactorily.

The petition must fail.

The Sandiganbayan did not commit a reversible error in its decision convicting petitioner of
malversation of public funds, which is defined and penalized under Article 217 of the Revised Penal
Code, as amended, as follows:

Art. 217. Malversation of public funds or property. – Presumption of malversation. – Any public
officer who, by reason of the duties of his office, is accountable for public funds or property, shall
appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or
negligence, shall permit any other person to take such public funds or property, wholly or partially, or
shall otherwise be guilty of the misappropriation or malversation of such funds or property shall
suffer:

xxxx

4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is
more than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount
exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion
perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total value of
the property embezzled.
The failure of a public officer to have duly forthcoming any public funds or property with which he is
chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has
put such missing funds or property to personal use. (Emphasis and underscoring supplied.)

Thus, the elements of malversation of public funds under Article 217 of the Revised Penal Code are:

1. that the offender is a public officer;

2. that he had the custody or control of funds or property by reason of the duties of his office;

3. that those funds or property were public funds or property for which he was accountable;
and

4. that he appropriated, took, misappropriated or consented or, through abandonment or

negligence, permitted another person to take them.18

We note that all the above-mentioned elements are here present. Petitioner was a public officer
occupying the position of Commanding Officer of the 22nd FSU of the AFP Finance Center, PSG. By
reason of his position, he was tasked to supervise the disbursement of the Special Duty Allowances
and other Maintenance Operating Funds of the PSG personnel, which are indubitably public funds
for which he was accountable. Petitioner in fact admitted in his testimony that he had complete
control and custody of these funds. As to the element of misappropriation, indeed petitioner failed to
rebut the legal presumption that he had misappropriated the fees to his personal use.

In convicting petitioner, the Sandiganbayan cites the presumption in Article 217 of the Revised Penal
Code, as amended, which states that the failure of a public officer to have duly forthcoming any
public funds or property with which he is chargeable, upon demand by any duly authorized officer, is
prima facie evidence that he has put such missing fund or property to personal uses. The
presumption is, of course, rebuttable. Accordingly, if petitioner is able to present adequate evidence
that can nullify any likelihood that he put the funds or property to personal use, then that
presumption would be at an end and the prima facie case is effectively negated.

In this case, however, petitioner failed to overcome this prima facie evidence of guilt. He failed to
1âwphi 1

explain the missing funds in his account and to restitute the amount upon demand. His claim that the
money was taken by robbery or theft is self-serving and has not been supported by evidence. In fact,
petitioner even tried to unscrew the safety vault to make it appear that the money was forcibly taken.
Moreover, petitioner’s explanation that there is a possibility that the money was taken by another is
belied by the fact that there was no sign that the steel cabinet was forcibly opened. We also take
note of the fact that it was only petitioner who had the keys to the steel cabinet.19 Thus, the
explanation set forth by petitioner is unsatisfactory and does not overcome the presumption that he
has put the missing funds to personal use.

Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the
offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the
mode proved, the same offense of malversation is involved and conviction thereof is proper.20 All that
is necessary for conviction is sufficient proof that the accountable officer had received public funds,
that he did not have them in his possession when demand therefor was made, and that he could not
satisfactorily explain his failure to do so. Direct evidence of personal misappropriation by the
accused is hardly necessary as long as the accused cannot explain satisfactorily the shortage in his
accounts.21 To our mind, the evidence in this case is thoroughly inconsistent with petitioner's claim of
innocence. Thus, we sustain the Sandiganbayan's finding that petitioner's guilt has been proven
beyond reasonable doubt.
WHEREFORE, the petition is DENIED. The Decision dated July 31, 2008 of the Sandiganbayan in
Criminal Case No. SB-07-A/R-0008 convicting Major Joel G. Cantos of the crime of Malversation of
Public Funds is AFFIRMED and UPHELD.

With costs against the petitioner.

SO ORDERED.

G.R. No.166680 July 7, 2014

ALOYSIUS DAIT LUMAUIG, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

DEL CASTILLO, J.:

A prior notice or demand for liquidation of cash advances is not a condition sine qua non before an
accountable public officer may be held liable under Article 2181 of the Revised Penal Code.

Before us is a Petition for Review on Certiorari filed under Rule 45 of the Rules of Court of the
September 10, 2004 Decision2 of the Sandiganbayan in Criminal Case No. 26528 and its January
11, 2005 Resolution3 denying reconsideration thereof.

The Information4 dated January 25, 2001 under which petitioner Aloysius Dait Lumauig (petitioner)
was tried and convicted has this accusatory portion:

That in or about August 1994 or immediately prior or subsequent thereto, in Alfonso Lista, Ifugao
and within the jurisdiction of this Honorable Court, the above-named accused then Municipal
Mayorof Alfonso Lista, Ifugao, and as such accountable public officer, and responsible for the
amount of P101,736.00 which the accused received by way of cashadvance for payment of the
insurance coverage of the twelve (12) motorcycle[s] purchased by the Municipality, and, hence with
the corresponding duty under the law to account for the same, did then and there, willfully and
feloniously fail to liquidate and account for the same to the damage and prejudice of the
Government.5

The facts are matters of recordor otherwise undisputed.

Sometime in January 1998, Commission on Audit (COA) Auditor Florence L. Paguirigan examined
the year-end reports involving the municipal officials of Alfonso Lista, Ifugao. During the courseof her
examination of the records and related documents of the municipality, she came across a
disbursement voucher6 for P101,736.00 prepared for petitioner, a former mayor of the municipality,
as cash advance for the payment of freight and other cargo charges for 12 units of motorcycles
supposed to be donated to the municipality. The amount was covered by Land Bank Check No.
118942007 dated August 29, 1994 wherein the payee is petitioner. Her further investigation of the
accounting records revealed that no payment intended for the charge was made to Royal Cargo
Agencies for the month of August 1994. Thus, she issued a certification8 to this effect on November
29, 2001. She likewise claimed that she prepared two letters to inform the petitioner of his
unliquidated cash advance but the same were not sent to him because she could not get his exact
address despite efforts exerted. She averred that on June 4, 2001, petitioner paid the subject cash
advance before the treasurer of the municipality, for which reason, incumbent Mayor Glenn D.
Prudenciano executed an Affidavit of Desistance.9

Petitioner admitted having obtained the cash advance of P101,736.00 during his incumbency as
municipal mayor of Alfonso Lista, Ifugao.10 This amount was intended for the payment of freight and
insurance coverage of 12 units of motorcycles to bedonated to the municipality by the City of Manila.
However, instead of motorcycles, he was able to secure two buses and five patrol cars. He claimed
that it never came to his mind to settle or liquidate the amount advanced since the vehicles were
already turned over to the municipality. He alleged that he was neither informed nor did he receive
any demand from COA to liquidate his cash advances. It was only in 2001 while he was claiming for
separation pay when he came to know that he still has an unliquidated cash advance. And so as not
toprolong the issue, he paidthe amount of P101,736.00 to the municipal treasurer on June 4, 2001.

From the same facts stemmed an Information for violation of Section 3 of Republic Act (RA) No.
301911 docketed as CriminalCase No. 26527 against petitioner for having allegedly utilized the cash
advance for a purpose other than for which it was obtained.

On September 10, 2004, after a joint trial, the Sandiganbayanrendered a consolidated

Decision12 disposing thusly:

WHEREFORE, premises consideredthe Court rules as follows:

1. In Criminal Case No. 26527, accused ALOYSIUS DAIT LUMAUIG is hereby ACQUITTED.
No civil liability shall be imposed there being no basis for its award. The cash bondposted for
his provisional liberty is ordered returned to him, subject to the usual accounting and auditing
procedure; and

2. In Criminal Case No. 26528, accused ALOYSIUS DAIT LUMAUIG is hereby CONVICTED
of the felony of Failure of Accountable Officer to Render Accounts under Article 218 of the
Revised Penal Code. He is hereby sentenced to a straight penalty of six months and one (1)
day and a fine of Php1,000.00.

SO ORDERED.13

On January 11, 2005, the Sandiganbayanpromulgated its Resolution14 denying petitioner’s

UrgentMotion for Reconsideration.15

Hence, this Petition.

After a thorough review of the records of the case and a judicious consideration of the arguments of
the petitioner, the Court does not find sufficient basis to reverse the judgment of conviction. From the
prevailing facts, we entertain no doubt on the guilt of petitioner.

The acquittal of petitioner in the anti-

graft case is not a bar to his conviction
for failure to render an account in the
present case.
Petitioner stakes the present Petition on the assertion that since the cases for which he was indicted
involve the same subject cash advance in the amount of P101,736.00, his exoneration in the anti-
graft case should likewise exculpate him from further liability in the present case.

We are not persuaded.

It is undisputed that the two charges stemmed from the same incident. "However, [we have]
consistently held thatthe same act may give rise to two or more separate and distinct
charges."16 Further, because there is a variance between the elements of the two offenses charged,
petitioner cannot safely assume that his innocence in one case will extend to the other case even if
both cases hinge on the same set of evidence.

To hold a person criminally liable under Section 3(e)of RA 3019, the following elements must be
present:

(1) That the accused is a public officer or a private person charged in conspiracy with the
former;

(2) That said public officer commitsthe prohibited acts during the performance of his or her
official duties or in relation to his or her public positions;

(3) That he or she causes undue injury toany party, whether the government or a private
party;

(4) That such injury is caused by giving unwarranted benefits, advantage or preference to
such parties; and

(5) That the public officer has acted withmanifest partiality, evident bad faith or gross
inexcusable negligence.17

On the other hand, the elements of the felony punishable under Article 218 of the Revised Penal
Code are:

(1) That the offender is a public officer whether in the service or separated therefrom;

(2) That he must be an accountable officer for public funds or property;

(3) That he is required by law or regulation to render accounts to the COA or to a provincial
auditor; and,

(4) That he fails to do so for a period oftwo months after such account should be rendered.18

The glaring differences between the elements of these two offenses necessarily imply that the
requisite evidence to establish the guilt or innocence of the accused would certainly differ in each
case. Hence, petitioner’s acquittal in the anti-graft case provides no refuge for him inthe present
case given the differences between the elements ofthe two offenses.

Prior demand to liquidate is not a

requisite for conviction under Article
218 of the Revised Penal Code.
The central aspect of petitioner’s next argument is that he was not reminded of his unliquidated cash
advances. The Office of the Special Prosecutor countered that Article 218 does not require the COA
orthe provincial auditor to first make a demand before the public officer should render an account. It
is sufficient that there is a law or regulation requiring him to render an account. The question has
been settled in Manlangit v. Sandiganbayan19where we ruled that prior demand to liquidate is not
necessary to hold an accountable officer liable for violation of Article 218 of the Revised Penal Code:

x x x [W]e are asked to resolve whether demand is necessary for a conviction of a violation of Article
218 of the Revised Penal Code.

Citing United States v. Saberon, petitioner contends that Article 218 punishes the refusal of a public
employee to render an account of funds in his charge when duly required by a competent officer. He
argues that he cannot be convicted of the crime unless the prosecution has proven that there was a
demand for him to render an account. Petitioner asserts that COA Circular No. 90-331 provides that
the public officer shall be criminally liable for failure to settle his accounts after demand had been
made. Moreover, petitioner asserts that the case had become moot and academic since he already
submitted his liquidation report.

For the People, the Office of the Special Prosecutor (OSP) counters that demand is not an element
of the offense and that it is sufficient that there is a law or regulation requiring the public officer to
render an account. The OSP insists that Executive Order No. 292, Presidential Decree No. 1445, the
COA Laws and Regulations, and even the Constitution mandate that public officers render an
account of funds in their charge. It maintains that the instant case differs from Saberonwhich
involved a violation of Act No. 1740 where prior demand was required. In this case involving a
violation of Article 218, prior demand is not required. Moreover, the OSP points out that petitioner
even admitted his failure to liquidate the funds within the prescribed period, hence, he should be
convicted of the crime.

We shall now resolve the issue at hand.

Article 218 consists ofthe following elements:

1. that the offender is a public officer, whether in the service or separated therefrom;

2. that he must be an accountable officer for public funds or property;

3. that he is required by law or regulation to render accounts to the Commission on Audit, or

to a provincial auditor; and

4. that he fails to do so for a period of two months after such accounts should be rendered.
Nowhere in the provision does it require that there first be a demand before an accountable
officer is held liable for a violation of the crime. The law is very clear. Where none is
provided, the court may not introduce exceptions or conditions, neither may it engraft into the
law qualifications not contemplated. Where the law is clear and unambiguous, it must be
taken to mean exactly what it says and the court has no choice but to see to it that its
mandate is obeyed. There is no room for interpretation, but only application.

Petitioner’s reliance on Saberonis misplaced. As correctly pointed out by the OSP, Saberoninvolved
a violation of Act No. 1740 whereas the present case involves a violation of Article 218 of the
Revised Penal Code. Article 218 merely provides that the public officer berequired by law and
regulation to render account. Statutory construction tells us that in the revision or codification of
laws, all parts and provisions of the old laws that are omitted in the revised statute or code are
deemed repealed, unless the statute or code provides otherwise.20

Petitioner is liable for violation of Article 218 of the Revised Penal Code.

Section 5 of COA Circular No. 90-331, the circular in force at the time petitioner availed of the
subject cash advance, pertinently provides:

5. LIQUIDATION OFCASH ADVANCES

5.1 The AO (Accountable Officer) shall liquidate his cash advance as follows:

xxxx

5.1.2 Petty Operating Expenses and Field Operating Expenses - within 20 days after the end of the
year; subject to replenishment during the year.

Since petitioner received the subject cash advance sometime in 1994, he was, thus, required to
liquidate the same on or before January 20, 1995. Further, to avoid liability under Article 218, he
should have liquidated the cash advance within two months from the time it was due, or on or before
March 20, 1995. In the case at bar, petitioner liquidated the subject cash advance only on June 4,
2001. Hence, as correctly found by the Sandiganbayan,petitioner was liable for violation of Article
218 because it took him over six years before settling his accounts.

The penalty imposed on petitioner should be modified.

Petitioner argues that assuming that he is liable for violation of Article 218, he should be meted a
lesser penalty considering that (1) he subsequently liquidated the subject cash advance when he
later discovered and was confronted with his delinquency, and (2) the COA did not immediately
inform him of his unliquidated cash advance.

On this point, we partially agree with petitioner.

In sentencing petitioner to a straight penalty of six months and one day of prisión correccionaland a
fine of P1,000.00, the Sandiganbayan correctly considered the mitigating circumstance of voluntary
surrender, as borne by the records,21 in favor of petitioner.However, it failed toconsider the mitigating
circumstance of return or full restitution of the funds that were previously unliquidated.

In malversation of public funds, the payment, indemnification, or reimbursement of the funds

misappropriated may be considered a mitigating circumstance being analogousto voluntary
surrender.22 Although this case does not involve malversation ofpublic funds under Article 217 of the
Revised Penal Code but rather failure to render an account under Article 218 (i.e., the succeeding
Article found in the same Chapter), the same reasoning may be applied to the return or full
restitution ofthe funds that were previously unliquidated in considering the same as a mitigating
circumstance in favor of petitioner.

The prescribed penalty for violation of Article 218 is prisión correccionalin its minimum period or six
months and one day to two years and four months, or by a fine ranging from 200to 6,000 pesos,
orboth. Considering that there are two mitigating circumstances and there are no aggravating
circumstances, under Article 64 (5)23 of the Revised Penal Code, the imposable penalty is the penalty
next lower to the prescribed penalty which, in this case, is arresto mayorin its maximum period or
four months and one day to six months. 1âwphi 1

The Indeterminate Sentence Law, under Section 2,24 is not applicable to, among others, cases where
the maximum term of imprisonment does not exceed one year. In determining "whether an
indeterminate sentence and not a straight penalty is proper, what is considered is the penalty
actually imposed by the trial court, after considering the attendant circumstances, and not the
imposable penalty."25 In the case at bar, since the maximum of the imposable penalty is six months,
then the possible maximum term that can be actually imposed is surely less than one year. Hence,
the Indeterminate Sentence Law is notapplicable to the present case. As a result, and in view of the
attendant circumstances in this case, we deem it proper to impose a straight penalty of four months
and one day of arresto mayorand delete the imposition of fine.

WHEREFORE, the Petition is GRANTED IN PART. The Decision of the Sandiganbayanin Criminal
Case No. 26528 dated September 10, 2004 convicting petitioner of the felony of Failure of
Accountable Officer to Render Accounts under Article 218 of the Revised Penal Code is
AFFIRMEDwith the following MODIFICATIONS:

1. Petitioner is sentenced to a straight penalty of four months and one day of arresto mayor, and 2.
The imposition of finein the amount of P1,000.00 is deleted.

SO ORDERED.

G.R. Nos. 147026-27

Present:
CAROLINA R. JAVIER,
Petitioner, YNARES-SANTIAGO, J.,

Chairperson,
- versus - CHICO-NAZARIO,

VELASCO, JR.,
THE FIRST DIVISION OF THE NACHURA, and
SANDIGANBAYAN and the
PEOPLE OF THE PHILIPPINES, PERALTA, JJ.
Respondents.
 Promulgated:

September 11, 2009

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

DECISION

PERALTA, J.:

Before the Court is a petition for certiorari[1] under Rule 65 of the Rules of Court
filed by petitioner Carolina R. Javier in Criminal Case Nos. 25867 and 25898,
entitled People of the Philippines, Plaintiff versus Carolina R. Javier,
Accused, seeking to nullify respondent Sandiganbayan's: (1) Order[2] dated
November 14, 2000 in Criminal Case No. 25867, which denied her Motion to
Quash Information; (2) Resolution[3] dated January 17,
2001 in Criminal Case No. 25898, which denied her Motion for Reconsideration
and Motion to Quash Information; and (3) Order[4] dated February 12, 2001,
declaring that a motion for reconsideration in Criminal Case No. 25898 would be
superfluous as the issues are fairly simple and straightforward.
The factual antecedents follow.

On June 7, 1995, Republic Act (R.A.) No. 8047,[5] or otherwise known as the Book
Publishing Industry Development Act, was enacted into law. Foremost in its policy
is the State's goal in promoting the continuing development of the book
publishing industry, through the active participation of the private sector, to
ensure an adequate supply of affordable, quality-produced books for the
domestic and export market.

To achieve this purpose, the law provided for the creation of the National Book
Development Board (NBDB or the Governing Board, for brevity), which shall be
under the administration and supervision of the Office of the President. The
Governing Board shall be composed of eleven (11) members who shall be
appointed by the President of the Philippines, five (5) of whom shall come from
the government, while the remaining six (6) shall be chosen from the nominees of
organizations of private book publishers, printers, writers, book industry related
activities, students and the private education sector.

On February 26, 1996, petitioner was appointed to the Governing Board as a

private sector representative for a term of one (1) year.[6] During that time, she
was also the President of the Book Suppliers Association of the Philippines
(BSAP). She was on a hold-over capacity in the following year. On September 14,
1998, she was again appointed to the same position and for the same period of
one (1) year.[7] Part of her functions as a member of the Governing Board is to
attend book fairs to establish linkages with international book publishing
bodies. On September 29, 1997, she was issued by the Office of the President a
travel authority to attend the Madrid International Book Fair in Spain on October
8-12, 1997.[8] Based on her itinerary of travel,[9] she was paid P139,199.00[10] as
her travelling expenses.
Unfortunately, petitioner was not able to attend the scheduled international book
fair.

On February 16, 1998, Resident Auditor Rosario T. Martin advised petitioner to

immediately return/refund her cash advance considering that her trip was
canceled.[11] Petitioner, however, failed to do so. On July 6, 1998, she was issued a
Summary of Disallowances[12] from which the balance for settlement amounted
to P220,349.00. Despite said notice, no action was forthcoming from the
petitioner.

On September 23, 1999, Dr. Nellie R. Apolonio, then the Executive Director of the
NBDB, filed with the Ombudsman a complaint against petitioner for malversation
of public funds and properties.She averred that despite the cancellation of the
foreign trip, petitioner failed to liquidate or return to the NBDB her cash advance
within sixty (60) days from date of arrival, or in this case from the date of
cancellation of the trip, in accordance with government accounting and auditing
rules and regulations. Dr. Apolonio further charged petitioner with violation of
Republic Act (R.A.) No. 6713[13] for failure to file her Statement of Assets and
Liabilities.

The Ombudsman found probable cause to indict petitioner for violation of Section
3(e) of R.A. No. 3019,[14] as amended, and recommended the filing of the
corresponding information.[15] It, however, dismissed for insufficiency of evidence,
the charge for violation of R.A. No. 6713.

In an Information dated February 18, 2000, petitioner was charged with violation
of Section 3(e) of R.A. No. 3019 before the Sandiganbayan, to wit:

That on or about October 8, 1997, or for sometime prior or subsequent

thereto, in the City of Quezon, Philippines and within the jurisdiction of
 this Honorable Court, the aforenamed accused, a public officer, being
then a member of the governing Board of the National Book
Development Board (NBDB), while in the performance of her official
and administrative functions, and acting with evident bad faith or gross
inexcusable negligence, did then and there willfully, unlawfully and
criminally, without any justifiable cause, and despite due demand by
the Resident Auditor and the Executive Director of NBDB, fail and refuse
to return and/or liquidate her cash advances intended for official travel
abroad which did not materialize, in the total amount of P139,199.00 as
of September 23, 1999, as required under EO No. 248 and Sec. 5 of COA
Circular No. 97-002 thereby causing damage and undue injury to
the Government.

CONTRARY TO LAW.[16]

The case was docketed as Criminal Case No. 25867 and raffled to the First
Division.

Meanwhile, the Commission on Audit charged petitioner with Malversation of

Public Funds, as defined and penalized under Article 217 of the Revised Penal
Code, for not liquidating the cash advance granted to her in connection with her
supposed trip to Spain. During the conduct of the preliminary investigation,
petitioner was required to submit her counter-affidavit but she failed to do
so. The Ombudsman found probable cause to indict petitioner for the crime
charged and recommended the filing of the corresponding information against
her. [17]

Thus, an Information dated February 29, 2000 was filed before the
Sandiganbayan, which was docketed as Criminal Case No. 25898, and raffled to
the Third Division, the accusatory portion of which reads:
 That on or about and during the period from October 8, 1997 to
February 16, 1999, or for sometime prior or subsequent thereto, in
Quezon City, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, a high ranking officer, being a
member of the Governing Board of the National Book Development
Board and as such, is accountable for the public funds she received as
cash advance in connection with her trip to Spain from October 8-12,
1997, per LBP Check No. 10188 in the amount of P139,199.00, which
trip did not materialize, did then and there willfully, unlawfully and
feloniously take, malverse, misappropriate, embezzle and convert to
her own personal use and benefit the aforementioned amount
of P139,199.00, Philippine currency, to the damage and prejudice of the
government in the aforesaid amount.

CONTRARY TO LAW.[18]

During her arraignment in Criminal Case No. 25867, petitioner pleaded not
guilty. Thereafter, petitioner delivered to the First Division the money subject of
the criminal cases, which amount was deposited in a special trust account during
the pendency of the criminal cases.

Meanwhile, the Third Division set a clarificatory hearing in Criminal Case No.
25898 on May 16, 2000 in order to determine jurisdictional issues. On June 3,
2000, petitioner filed with the same Division a Motion for Consolidation[19] of
Criminal Case No. 25898 with Criminal Case No. 25867, pending before the First
Division. On July 6, 2000, the People filed an Urgent Ex-Parte Motion to Admit
Amended Information[20] in Criminal Case No. 25898, which was
granted. Accordingly, the Amended Information dated June 28, 2000 reads as
follows:

That on or about and during the period from October 8, 1997 to

February 16, 1999, or for sometime prior or subsequent thereto, in
Quezon City, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, a high ranking officer, being a
member of the Governing Board of the National Book Development
Board equated to Board Member II with a salary grade 28 and as such,
is accountable for the public funds she received as case advance in
connection with her trip to Spain from October 8-12, 1997, per LBP
Check No. 10188 in the amount of P139,199.00, which trip did not
materialize, did then and there willfully, unlawfully and feloniously take,
malverse, misappropriate, embezzle and convert to her own personal
use and benefit the aforementioned amount of P139,199.00, Philippine
currency, to the damage and prejudice of the government in the
aforesaid amount.

CONTRARY TO LAW.[21]

In its Resolution dated October 5, 2000, the Third Division ordered the
consolidation of Criminal Case No. 25898 with Criminal Case No. 25867. [22]

On October 10, 2000, petitioner filed a Motion to Quash

Information,[23] averring that the Sandiganbayan has no jurisdiction to hear
Criminal Case No. 25867 as the information did not allege that she is a public
official who is classified as Grade 27 or higher. Neither did the information charge
her as a co-principal, accomplice or accessory to a public officer committing an
offense under the Sandiganbayan's jurisdiction. She also averred that she is not a
public officer or employee and that she belongs to the Governing Board only as a
private sector representative under R.A. No. 8047, hence, she may not be charged
under R.A. No. 3019 before the Sandiganbayan or under any statute which covers
public officials. Moreover, she claimed that she does not perform public functions
and is without any administrative or political power to speak of that she is serving
the private book publishing industry by advancing their interest as participant in
the government's book development policy.
In an Order[24] dated November 14, 2000, the First Division[25] denied the
motion to quash with the following disquisition:

The fact that the accused does not receive any compensation in terms
of salaries and allowances, if that indeed be the case, is not the sole
qualification for being in the government service or a public official. The
National Book Development Board is a statutory government agency
and the persons who participated therein even if they are from the
private sector, are public officers to the extent that they are performing
their duty therein as such.

Insofar as the accusation is concerned herein, it would appear that

monies were advanced to the accused in her capacity as Director of the
National Book Development Board for purposes of official travel. While
indeed under ordinary circumstances a member of the board remains a
private individual, still when that individual is performing her functions
as a member of the board or when that person receives benefits or
when the person is supposed to travel abroad and is given government
money to effect that travel, to that extent the private sector
representative is a public official performing public functions; if only for
that reason, and not even considering situation of her being in
possession of public funds even as a private individual for which she
would also covered by provisions of the Revised Penal Code, she is
properly charged before this Court.
 On November 15, 2000, the First Division accepted the consolidation of the
criminal cases against petitioner and scheduled her arraignment on November 17,
2000, for Criminal Case No. 25898. On said date, petitioner manifested that she is
not prepared to accept the propriety of the accusation since it refers to the same
subject matter as that covered in Criminal Case No. 25867 for which the
Sandiganbayan gave her time to file a motion to quash. On November 22, 2000,
petitioner filed a Motion to Quash the Information[26] in Criminal Case No. 25898,
by invoking her right against double jeopardy. However, her motion was denied in
open court. She then filed a motion for reconsideration.
On January 17, 2001, the Sandiganbayan issued a Resolution[27] denying
petitioners motion with the following disquisition:

The accused is under the jurisdiction of this Court because Sec. 4

(g) of P.D. 1606 as amended so provides, thus:

Sec. 4. Jurisdiction. The Sandiganbayan shall exercise

exclusive original jurisdiction in all cases involving:

xxxx

(g) Presidents, directors or trustees, or managers of

government-owned or controlled corporations, state
universities or educational institutions or foundations;

xxxx
 The offense is office-related because the money for her travel
abroad was given to her because of her Directorship in the National
Book Development Board.

Furthermore, there are also allegations to hold the accused liable

under Article 222 of the Revised Penal Code which reads:

Art. 222. Officers included in the preceding

provisions. The provisions of this chapter shall apply
to private individuals who, in any capacity whatever, have
charge of any insular, provincial or municipal funds,
revenues, or property and to any administrator or
depository of funds or property attached , seized or
deposited by public authority, even if such property
belongs to a private individual.

Likewise, the Motion to Quash the Information in Criminal Case

No. 25898 on the ground of litis pendencia is denied since in this
instance, these two Informations speak of offenses under different
statutes, i.e., R.A. No. 3019 and the Revised Penal Code, neither of
which precludes prosecution of the other.

Petitioner hinges the present petition on the ground that the Sandiganbayan has
committed grave abuse of discretion amounting to lack of jurisdiction for not
quashing the two informations charging her with violation of the Anti-Graft Law
and the Revised Penal Code on malversation of public funds. She advanced the
following arguments in support of her petition, to wit: first, she is not a public
officer, and second, she was being charged under two (2) informations, which is in
violation of her right against double jeopardy.
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, or for defects which are apparent in the face of the
Information.[28]

Well-established is the rule that when a motion to quash in a criminal case is

denied, the remedy is not a petition for certiorari, but for petitioners to go to trial,
without prejudice to reiterating the special defenses invoked in their motion to
quash. Remedial measures as regards interlocutory orders, such as a motion to
quash, are frowned upon and often dismissed. The evident reason for this rule is
to avoid multiplicity of appeals in a single action.[29]

The above general rule, however admits of several exceptions, one of which is
when the court, in denying the motion to dismiss or motion to quash, acts without
or in excess of jurisdiction or with grave abuse of discretion, then certiorari or
prohibition lies. The reason is that it would be unfair to require the defendant or
accused to undergo the ordeal and expense of a trial if the court has no jurisdiction
over the subject matter or offense, or is not the court of proper venue, or if the
denial of the motion to dismiss or motion to quash is made with grave abuse of
discretion or a whimsical and capricious exercise of judgment. In such cases, the
ordinary remedy of appeal cannot be plain and adequate.[30]

To substantiate her claim, petitioner maintained that she is not a public officer and
only a private sector representative, stressing that her only function among the
eleven (11) basic purposes and objectives provided for in Section 4, R.A. No.
8047, is to obtain priority status for the book publishing industry. At the time
of her appointment to the NDBD Board, she was the President of the BSAP, a
book publishers association. As such, she could not be held liable for the crimes
imputed against her, and in turn, she is outside the jurisdiction of the
Sandiganbayan.
The NBDB is the government agency mandated to develop and support the
Philippine book publishing industry. It is a statutory government agency created by
R.A. No. 8047, which was enacted into law to ensure the full development of the
book publishing industry as well as for the creation of organization structures to
implement the said policy. To achieve this end, the Governing Board of the NBDB
was created to supervise the implementation. The Governing Board was vested
with powers and functions, to wit:
a) assume responsibility for carrying out and implementing the policies,
purposes and objectives provided for in this Act;
b) formulate plans and programs as well as operational policies and guidelines for
undertaking activities relative to promoting book development, production and
distribution as well as an incentive scheme for individual authors and writers;
c) formulate policies, guidelines and mechanisms to ensure that editors, compilers
and especially authors are paid justly and promptly royalties due them for
reproduction of their works in any form and number and for whatever purpose;
d) conduct or contract research on the book publishing industry including
monitoring, compiling and providing data and information of book production;
e) provide a forum for interaction among private publishers, and, for the purpose,
establish and maintain liaison will all the segments of the book publishing
industry;
f) ask the appropriate government authority to ensure effective implementation of
the National Book Development Plan;
g) promulgate rules and regulations for the implementation of this Act in
consultation with other agencies concerned, except for Section 9 hereof on
incentives for book development, which shall be the concern of appropriate
agencies involved;
h) approve, with the concurrence of the Department of Budget and Management
(DBM), the annual and supplemental budgets submitted to it by the Executive
director;
i) own, lease, mortgage, encumber or otherwise real and personal property for the
attainment of its purposes and objectives;
j) enter into any obligation or contract essential to the proper administration of its
affairs, the conduct of its operations or the accomplishment of its purposes and
objectives;
k) receive donations, grants, legacies, devices and similar acquisitions which shall
form a trust fund of the Board to accomplish its development plans on book
publishing;
l) import books or raw materials used in book publishing which are exempt from
all taxes, customs duties and other charges in behalf of persons and enterprises
engaged in book publishing and its related activities duly registered with the
board;
 m) promulgate rules and regulations governing the matter in which the general
affairs of the Board are to be exercised and amend, repeal, and modify such rules
and regulations whenever necessary;
n) recommend to the President of the Philippines nominees for the positions of the
Executive Officer and Deputy Executive Officer of the Board;
o) adopt rules and procedures and fix the time and place for holding meetings:
Provided, That at least one (1) regular meeting shall be held monthly;
p) conduct studies, seminars, workshops, lectures, conferences, exhibits, and other
related activities on book development such as indigenous authorship, intellectual
property rights, use of alternative materials for printing, distribution and others;
and
q) exercise such other powers and perform such other duties as may be required
by the law.[31]

A perusal of the above powers and functions leads us to conclude that they
partake of the nature of public functions. A public office is the right, authority and
duty, created and conferred by law, by which, for a given period, either fixed by
law or enduring at the pleasure of the creating power, an individual is invested
with some portion of the sovereign functions of the government, to be
exercised by him for the benefit of the public. The individual so invested is a
public officer.[32]

Notwithstanding that petitioner came from the private sector to sit as a member
of the NBDB, the law invested her with some portion of the sovereign functions of
the government, so that the purpose of the government is achieved. In this case,
the government aimed to enhance the book publishing industry as it has a
significant role in the national development. Hence, the fact that she was
appointed from the public sector and not from the other branches or agencies of
the government does not take her position outside the meaning of a public
office. She was appointed to the Governing Board in order to see to it that the
purposes for which the law was enacted are achieved. The Governing Board acts
collectively and carries out its mandate as one body. The purpose of the law for
appointing members from the private sector is to ensure that they are also
properly represented in the implementation of government objectives to cultivate
the book publishing industry.
Moreover, the Court is not unmindful of the definition of a public officer pursuant
to the Anti-Graft Law, which provides that a public officer includes elective and
appointive officials and employees, permanent or temporary, whether in the
classified or unclassified or exempt service receiving compensation, even nominal,
from the government.[33]
Thus, pursuant to the Anti-Graft Law, one is a public officer if one has been
elected or appointed to a public office. Petitioner was appointed by the President
to the Governing Board of the NDBD.Though her term is only for a year that does
not make her private person exercising a public function. The fact that she is not
receiving a monthly salary is also of no moment. Section 7, R.A. No. 8047 provides
that members of the Governing Board shall receive per diem and such allowances
as may be authorized for every meeting actually attended and subject to
pertinent laws, rules and regulations. Also, under the Anti-Graft Law, the nature
of one's appointment, and whether the compensation one receives from the
government is only nominal, is immaterial because the person so elected or
appointed is still considered a public officer.
On the other hand, the Revised Penal Code defines a public officer as any person
who, by direct provision of the law, popular election, popular election or
appointment by competent authority, shall take part in the performance of public
functions in the Government of the Philippine Islands, or shall perform in said
Government or in any of its branches public duties as an employee, agent, or
subordinate official, of any rank or classes, shall be deemed to be a public
officer.[34]
Where, as in this case, petitioner performs public functions in pursuance of the
objectives of R.A. No. 8047, verily, she is a public officer who takes part in the
performance of public functions in the government whether as an employee,
agent, subordinate official, of any rank or classes. In fact, during her tenure,
petitioner took part in the drafting and promulgation of several rules and
regulations implementing R.A. No. 8047. She was supposed to represent the
country in the canceled book fair in Spain.
In fine, We hold that petitioner is a public officer. The next question for the Court
to resolve is whether, as a public officer, petitioner is within the jurisdiction of the
Sandiganbayan.
Presently,[35] the Sandiganbayan has jurisdiction over the following:

Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive

original jurisdiction in all cases involving:

A. Violations of Republic Act No. 3019, as

amended, other known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII, Book II of the Revised Penal Code,
where one or more of the accused are officials occupying
the following positions in the government, whether in a
permanent, acting or interim capacity, at the time of the
commission of the offense:

(1) Officials of the executive branch occupying the positions of

regional director and higher, otherwise classified as Grade 27 and
higher, of the Compensation and Position Classification Act of
989 (Republic Act No. 6758), specifically including:
xxxx

(2) Members of Congress and officials thereof classified as Grade Grade

'27' and up under the Compensation and Position Classification Act of
1989;

(3) Members of the judiciary without prejudice to the provisions of the

Constitution;

(4) Chairmen and members of Constitutional Commission,

without prejudice to the provisions of the Constitution; and

(5) All other national and local officials classified

as Grade Grade '27' and higher under the Compensation and
Position Classification Act of 1989.

xxxx
Notably, the Director of Organization, Position Classification and Compensation
Bureau, of the Department of Budget and management provided the following
information regarding the compensation and position classification and/or rank
equivalence of the member of the Governing Board of the NBDB, thus:

Per FY 1999 Personal Services Itemization, the Governing Board of

NDBD is composed of one (1) Chairman (ex-officio), one (1) Vice-
Chairman (ex-officio), and nine (9) Members, four (4) of whom are ex-
officio and the remaining five (5) members represent the private
sector. The said five members of the Board do not receive any salary and
as such their position are not classified and are not assigned any salary
grade.

For purposes however of determining the rank equivalence of said

positions, notwithstanding that they do not have any salary grade
assignment, the same may be equated to Board Member II, SG-28.[36]
Thus, based on the Amended Information in Criminal Case No. 25898, petitioner
belongs to the employees classified as SG-28, included in the phrase all other
national and local officials classified as Grade 27' and higher under the
Compensation and Position Classification Act of 1989.

Anent the issue of double jeopardy, We can not likewise give in to the contentions
advanced by petitioner. She argued that her right against double jeopardy was
violated when the Sandiganbayan denied her motion to quash the two informations
filed against her.

We believe otherwise. Records show that the Informations in Criminal Case Nos.
25867 and 25898 refer to offenses penalized by different statues, R.A. No. 3019
and RPC, respectively. It is elementary that for double jeopardy to attach, the case
against the accused must have been dismissed or otherwise terminated without his
express consent by a court of competent jurisdiction, upon valid information
sufficient in form and substance and the accused pleaded to the charge. [37] In the
instant case, petitioner pleaded not guilty to the Information for violation of the
Anti-Graft Law.She was not yet arraigned in the criminal case for malversation of
public funds because she had filed a motion to quash the latter information. Double
jeopardy could not, therefore, attach considering that the two cases remain pending
before the Sandiganbayan and that herein petitioner had pleaded to only one in the
criminal cases against her.

It is well settled that for a claim of double jeopardy to prosper, the following
requisites must concur: (1) there is a complaint or information or other formal
charge sufficient in form and substance to sustain a conviction; (2) the same
is filed before a court of competent jurisdiction; (3) there is a valid arraignment or
plea to the charges; and (4) the accused is convicted or acquitted or the case is
otherwise dismissed or terminated without his express consent.[38] The third and
fourth requisites are not present in the case at bar.

In view of the foregoing, We hold that the present petition does not fall under the
exceptions wherein the remedy of certiorari may be resorted to after the denial of
one's motion to quash the information. And even assuming that petitioner may
avail of such remedy, We still hold that the Sandiganbayan did not commit grave
abuse of discretion amounting to lack of or in excess of jurisdiction.
WHEREFORE, the Petition is DISMISSED. The questioned Resolutions and
Order of the Sandiganbayan are AFFIRMED. Costs against petitioner.
SO ORDERED.

DIOSDADO M. PERALTA

Associate Justice

RUPERTO A. AMBIL, JR., G.R. No. 175457

Petitioner,

- versus -
SANDIGANBAYAN and PEOPLE OF
THE PHILIPPINES,
Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

ALEXANDRINO R. APELADO, SR., G.R. No. 175482

Petitioner,
Present:

CORONA, C.J.,
Chairperson,
- versus - 
CARPIO,
BERSAMIN,
DEL CASTILLO, and
VILLARAMA, JR., JJ.
PEOPLE OF THE PHILIPPINES, Promulgated:
Respondent.
July 6, 2011
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
VILLARAMA, JR., J.:

Before us are two consolidated petitions for review on certiorari filed by petitioner
Ruperto A. Ambil, Jr.[1] and petitioner Alexandrino R. Apelado Sr.[2] assailing the
Decision[3] promulgated on September 16, 2005 and Resolution[4] dated November
8, 2006 of the Sandiganbayan in Criminal Case No. 25892.

The present controversy arose from a letter[5] of Atty. David B. Loste, President of
the Eastern Samar Chapter of the Integrated Bar of the Philippines (IBP), to the
Office of the Ombudsman, praying for an investigation into the alleged transfer of
then Mayor Francisco Adalim, an accused in Criminal Case No. 10963 for murder,
from the provincial jail of Eastern Samar to the residence of petitioner, then
Governor Ruperto A. Ambil, Jr. In a Report[6] dated January 4, 1999, the National
Bureau of Investigation (NBI) recommended the filing of criminal charges against
petitioner Ambil, Jr. for violation of Section 3(e)[7] of Republic Act (R.A.) No.
3019, otherwise known as the Anti-Graft and Corrupt Practices Act, as
amended. On September 22, 1999, the new President of the IBP, Eastern Samar
Chapter, informed the Ombudsman that the IBP is no longer interested in pursuing
the case against petitioners. Thus, he recommended the dismissal of the complaint
against petitioners.[8]

Nonetheless, in an Information[9] dated January 31, 2000, petitioners Ambil, Jr. and
Alexandrino R. Apelado, Sr. were charged with violation of Section 3(e) of R.A.
No. 3019, together with SPO3 Felipe A. Balano. Upon reinvestigation, the Office
of the Ombudsman issued a Memorandum[10] dated August 4, 2000, recommending
the dismissal of the complaint as regards Balano and the amendment of the
Information to include the charge of Delivering Prisoners from Jail under Article
156[11] of the Revised Penal Code, as amended, (RPC) against the remaining
accused. The Amended Information[12] reads:
That on or about the 6th day of September 1998, and for
sometime prior [or] subsequent thereto, [in] the Municipality of
Borongan, Province of Eastern Samar, Philippines, and within the
jurisdiction of this Honorable Court, [the] above-named accused,
Ruperto A. Ambil, Jr.[,] being then the Provincial Governor of Eastern
Samar, and Alexandrino R. Apelado, being then the Provincial Warden
of Eastern Samar, both having been public officers, duly elected,
appointed and qualified as such, committing the offense in relation to
office, conniving and confederating together and mutually helping x x x
each other, with deliberate intent, manifest partiality and evident bad
faith, did then and there wilfully, unlawfully and criminally order and
cause the release from the Provincial Jail of detention prisoner Mayor
Francisco Adalim, accused in Criminal Case No. 10963, for Murder, by
virtue of a warrant of Arrest issued by Honorable Arnulfo P. Bugtas,
Presiding Judge, RTC-Branch 2, Borongan, Eastern Samar, and
thereafter placed said detention prisoner (Mayor Francisco Adalim)
under accused RUPERTO A. AMBIL, JR.s custody, by allowing said
Mayor Adalim to stay at accused Ambils residence for a period of
Eighty-Five (85) days, more or less which act was done without any
court order, thus accused in the performance of official functions had
given unwarranted benefits and advantage to detainee Mayor Francisco
Adalim to the prejudice of the government.

CONTRARY TO LAW.

BAIL BOND RECOMMENDED: P30,000.00 each.[13]

On arraignment, petitioners pleaded not guilty and posted bail.

At the pre-trial, petitioners admitted the allegations in the Information. They

reason, however, that Adalims transfer was justified considering the imminent
threats upon his person and the dangers posed by his detention at the provincial
jail. According to petitioners, Adalims sister, Atty. Juliana A. Adalim-White, had
sent numerous prisoners to the same jail where Mayor Adalim was to be held.

Consequently, the prosecution no longer offered testimonial evidence and rested its
case after the admission of its documentary exhibits. Petitioners filed a Motion for
Leave to File Demurrer to Evidence with Reservation to Present Evidence in Case
of Denial[14] but the same was denied.

At the trial, petitioners presented three witnesses: petitioner Ambil, Jr., Atty.
Juliana A. Adalim-White and Mayor Francisco C. Adalim.

Petitioner Ambil, Jr. testified that he was the Governor of Eastern Samar from
1998 to 2001. According to him, it was upon the advice of Adalims lawyers that he
directed the transfer of Adalims detention to his home. He cites poor security in the
provincial jail as the primary reason for taking personal custody of Adalim
considering that the latter would be in the company of inmates who were put away
by his sister and guards identified with his political opponents.[15]

For her part, Atty. White stated that she is the District Public Attorney of Eastern
Samar and the sister of Mayor Adalim. She recounted how Mayor Adalim was
arrested while they were attending a wedding in Sulat, Eastern Samar, on
September 6, 1998. According to Atty. White, she sought the alternative custody of
Gov. Ambil, Jr. after Provincial Warden and herein petitioner Apelado, Sr. failed
to guarantee the mayors safety.[16]

Meanwhile, Francisco Adalim introduced himself as the Mayor of Taft, Eastern

Samar. He confirmed his arrest on September 6, 1998 in connection with a murder
case filed against him in the Regional Trial Court (RTC) of Borongan, Eastern
Samar. Adalim confirmed Atty. Whites account that he spotted inmates who served
as bodyguards for, or who are associated with, his political rivals at the provincial
jail. He also noticed a prisoner, Roman Akyatan, gesture to him with a raised
clenched fist. Sensing danger, he called on his sister for help. Adalim admitted
staying at Ambil, Jr.s residence for almost three months before he posted bail after
the charge against him was downgraded to homicide.[17]

Petitioner Apelado, Sr. testified that he was the Provincial Jail Warden of Eastern
Samar. He recalls that on September 6, 1998, SPO3 Felipe Balano fetched him at
home to assist in the arrest of Mayor Adalim. Allegedly, Atty. White was
contesting the legality of Mayor Adalims arrest and arguing with the jail guards
against booking him for detention. At the provincial jail, petitioner was confronted
by Atty. White who informed him that he was under the governor, in the latters
capacity as a provincial jailer. Petitioner claims that it is for this reason that he
submitted to the governors order to relinquish custody of Adalim.[18]

Further, petitioner Apelado, Sr. described the physical condition of the jail to be
dilapidated and undermanned. According to him, only two guards were incharge of
looking after 50 inmates. There were two cells in the jail, each housing 25 inmates,
while an isolation cell of 10 square meters was unserviceable at the time. Also,
there were several nipa huts within the perimeter for use during conjugal visits.[19]

On September 16, 2005, the Sandiganbayan, First Division, promulgated the

assailed Decision[20] finding petitioners guilty of violating Section 3(e) of R.A. No.
3019. The court ruled that in moving Adalim to a private residence, petitioners
have conspired to accord him unwarranted benefits in the form of more
comfortable quarters with access to television and other privileges that other
detainees do not enjoy. It stressed that under the Rules, no person under detention
by legal process shall be released or transferred except upon order of the court or
when he is admitted to bail.[21]

The Sandiganbayan brushed aside petitioners defense that Adalims transfer was
made to ensure his safety. It observed that petitioner Ambil, Jr. did not personally
verify any actual threat on Adalims life but relied simply on the advice of Adalims
lawyers. The Sandiganbayan also pointed out the availability of an isolation cell
and nipa huts within the 10-meter-high perimeter fence of the jail which could
have been used to separate Adalim from other prisoners. Finally, it cited petitioner
Ambil, Jr.s failure to turn over Adalim despite advice from Assistant Secretary
Jesus Ingeniero of the Department of Interior and Local Government.
Consequently, the Sandiganbayan sentenced petitioner Ambil, Jr. to an
indeterminate penalty of imprisonment for nine (9) years, eight (8) months and one
(1) day to twelve (12) years and four (4) months. In favor of petitioner Apelado,
Sr., the court appreciated the incomplete justifying circumstance of obedience to a
superior order and sentenced him to imprisonment for six (6) years and one (1)
month to nine (9) years and eight (8) months.

Hence, the present petitions.

Petitioner Ambil, Jr. advances the following issues for our consideration:
I

WHETHER OR NOT SECTION 3(e) REPUBLIC ACT NO. 3019, AS

AMENDED, APPLIES TO PETITIONERS CASE BEFORE THE
SANDIGANBAYAN.

II

WHETHER OR NOT A PUBLIC OFFICER SUCH AS PETITIONER

IS A PRIVATE PARTY FOR PURPOSES OF SECTION 3(e),
REPUBLIC ACT NO. 3019, AS AMENDED.

III

WHETHER OR NOT PETITIONER ACTED WITH DELIBERATE

INTENT, MANIFEST PARTIALITY, EVIDENT BAD FAITH OR
GROSS INEXCUSABLE NEGLIGENCE IN THE CONTEXT OF
SAID SECTION 3(e).

IV

WHETHER OR NOT PETITIONER AS PROVINCIAL GOVERNOR

AND JAILER UNDER SECTIONS 1730 AND 1733, ARTICLE III,
CHAPTER 45 OF THE ADMINISTRATIVE CODE OF 1917 AND
SECTION 61, CHAPTER V, REPUBLIC ACT 6975 HAS THE
AUTHORITY TO TAKE CUSTODY OF A DETENTION PRISONER.

V
 WHETHER OR NOT PETITIONER IS ENTITLED TO THE
JUSTIFYING CIRCUMSTANCE OF FULFILLMENT OF A DUTY
OR THE LAWFUL EXERCISE OF A RIGHT OR OFFICE.

VI

WHETHER OR NOT PETITIONER SHOULD HAVE BEEN

ACQUITTED BECAUSE THE PROSECUTION EVIDENCE DID
NOT ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT.[22]

For his part, petitioner Apelado, Sr. imputes the following errors on the
Sandiganbayan:
I
THERE WAS MISAPPREHENSION OF FACTS AND/OR
MISAPPLICATION OF THE LAW AND JURISPRUDENCE IN
CONVICTING ACCUSED APELADO, EITHER AS PRINCIPAL OR
IN CONSPIRACY WITH HIS CO-ACCUSED AMBIL.
II
IN THE ABSENCE OF COMPETENT PROOF BEYOND
REASONABLE DOUBT OF CONSPIRACY BETWEEN ACCUSED
AMBIL AND HEREIN PETITIONER, THE LATTER SHOULD BE
ACCORDED FULL CREDIT FOR THE JUSTIFYING
CIRCUMSTANCE UNDER PARAGRAPH 6, ARTICLE 11 OF THE
REVISED PENAL CODE.
III
THE COURT A QUOS BASIS IN CONVICTING BOTH ACCUSED
AMBIL AND HEREIN PETITIONER OF HAVING GIVEN MAYOR
ADALIM UNWARRANTED BENEFITS AND ADVANTAGE TO
THE PREJUDICE x x x OF THE GOVERNMENT IS, AT THE MOST,
SPECULATIVE.[23]

The issues raised by petitioner Ambil, Jr. can be summed up into three: (1)
Whether he is guilty beyond reasonable doubt of violating Section 3(e), R.A. No.
3019; (2) Whether a provincial governor has authority to take personal custody of a
detention prisoner; and (3) Whether he is entitled to the justifying circumstance of
fulfillment of duty under Article 11(5)[24] of the RPC.
Meanwhile, petitioner Apelado, Sr.s assignment of errors can be condensed into
two: (1) Whether he is guilty beyond reasonable doubt of violating Section 3(e),
R.A. No. 3019; and (2) Whether he is entitled to the justifying circumstance of
obedience to an order issued by a superior for some lawful purpose under Article
11(6)[25] of the RPC.

Fundamentally, petitioner Ambil, Jr. argues that Section 3(e), R.A. No. 3019 does
not apply to his case because the provision contemplates only transactions of a
pecuniary nature. Since the law punishes a public officer who extends unwarranted
benefits to a private person, petitioner avers that he cannot be held liable for
extending a favor to Mayor Adalim, a public officer. Further, he claims good faith
in taking custody of the mayor pursuant to his duty as a Provincial Jailer under
the Administrative Code of 1917. Considering this, petitioner believes himself
entitled to the justifying circumstance of fulfillment of duty or lawful exercise of
duty.

Petitioner Apelado, Sr., on the other hand, denies allegations of conspiracy

between him and petitioner Ambil, Jr. Petitioner Apelado, Sr. defends that he was
merely following the orders of a superior when he transferred the detention of
Adalim. As well, he invokes immunity from criminal liability.

For the State, the Office of the Special Prosecutor (OSP) points out the absence of
jurisprudence that restricts the application of Section 3(e), R.A. No. 3019 to
transactions of a pecuniary nature. The OSP explains that it is enough to show that
in performing their functions, petitioners have accorded undue preference to
Adalim for liability to attach under the provision. Further, the OSP maintains that
Adalim is deemed a private party for purposes of applying Section 3(e), R.A. No.
3019 because the unwarranted benefit redounded, not to his person as a mayor, but
to his person as a detention prisoner accused of murder. It suggests further that
petitioners were motivated by bad faith as evidenced by their refusal to turn over
Adalim despite instruction from Asst. Sec. Ingeniero. The OSP also reiterates
petitioners lack of authority to take custody of a detention prisoner without a court
order. Hence, it concludes that petitioners are not entitled to the benefit of any
justifying circumstance.
After a careful review of this case, the Court finds the present petitions bereft of
merit.

Petitioners were charged with violation of Section 3(e) of R.A. No. 3019 or
the Anti-Graft and Corrupt Practices Act which provides:
Section. 3. Corrupt practices of public officers. - In addition to
acts or omissions of public officers already penalized by existing law,
the following shall constitute corrupt practices of any public officer and
are hereby declared to be unlawful:

xxxx

(e) Causing any undue injury to any party, including the

Government, or giving any private party any unwarranted benefits,
advantage or preference in the discharge of his official, administrative or
judicial functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant
of licenses or permits or other concessions.

In order to hold a person liable under this provision, the following elements must
concur: (1) the accused must be a public officer discharging administrative,
judicial or official functions; (2) he must have acted with manifest partiality,
evident bad faith or gross inexcusable negligence; and (3) his action caused any
undue injury to any party, including the government, or gave any private party
unwarranted benefits, advantage or preference in the discharge of his functions.[26]

As to the first element, there is no question that petitioners are public officers
discharging official functions and that jurisdiction over them lay with the
Sandiganbayan. Jurisdiction of the Sandiganbayan over public officers charged
with violation of the Anti-Graft Law is provided under Section 4 of Presidential
Decree No. 1606,[27] as amended by R.A. No. 8249.[28] The pertinent portions of
Section 4, P.D. No. 1606, as amended, read as follows:
SEC. 4. Jurisdiction.The Sandiganbayan shall exercise exclusive
original jurisdiction in all cases involving:
 a. Violations of Republic Act No. 3019, as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act, Republic Act No.
1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal
Code, where one or more of the accused are officials occupying the
following positions in the government, whether in a permanent, acting or
interim capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the

positions of regional director and higher, otherwise classified as
Grade 27 and higher, of the Compensation and Position
Classification Act of 1989 (Republic Act No. 6758), specifically
including:

(a) Provincial governors, vice-governors, members of

the sangguniang panlalawigan and provincial treasurers,
assessors, engineers and other provincial department
heads[;]

xxxx

In cases where none of the accused are occupying positions

corresponding to Salary Grade 27 or higher, as prescribed in the said
Republic Act No. 6758, or military and PNP officers mentioned above,
exclusive original jurisdiction thereof shall be vested in the proper
regional trial court, metropolitan trial court, municipal trial court, and
municipal circuit trial court, as the case may be, pursuant to their
respective jurisdiction as provided in Batas Pambansa Blg. 129, as
amended.

xxxx

Thus, the jurisdiction of the Sandiganbayan over petitioner Ambil, Jr. is beyond
question. The same is true as regards petitioner Apelado, Sr. As to him, a
Certification[29] from the Provincial Government Department Head of the HRMO
shows that his position as Provincial Warden is classified as Salary Grade
22. Nonetheless, it is only when none of the accused are occupying positions
corresponding to salary grade 27 or higher shall exclusive jurisdiction be vested in
the lower courts. Here, petitioner Apelado, Sr. was charged as a co-principal with
Governor Ambil, Jr., over whose position the Sandiganbayan has
jurisdiction. Accordingly, he was correctly tried jointly with said public officer in
the proper court which had exclusive original jurisdiction over them the
Sandiganbayan.

The second element, for its part, describes the three ways by which a violation of
Section 3(e) of R.A. No. 3019 may be committed, that is, through manifest
partiality, evident bad faith or gross inexcusable negligence.

In Sison v. People,[30] we defined partiality, bad faith and gross negligence as

follows:
Partiality is synonymous with bias which excites a disposition to
see and report matters as they are wished for rather than as they are. Bad
faith does not simply connote bad judgment or negligence; it imputes a
dishonest purpose or some moral obliquity and conscious doing of a
wrong; a breach of sworn duty through some motive or intent or ill will;
it partakes of the nature of fraud. Gross negligence has been so defined
as negligence characterized by the want of even slight care, acting or
omitting to act in a situation where there is a duty to act, not
inadvertently but wilfully and intentionally with a conscious indifference
to consequences in so far as other persons may be affected. It is the
omission of that care which even inattentive and thoughtless men never
fail to take on their own property. x x x[31]

In this case, we find that petitioners displayed manifest partiality and evident bad
faith in transferring the detention of Mayor Adalim to petitioner Ambil, Jr.s
house. There is no merit to petitioner Ambil, Jr.s contention that he is authorized to
transfer the detention of prisoners by virtue of his power as the Provincial Jailer of
Eastern Samar.

Section 28 of the Local Government Code draws the extent of the power of local
chief executives over the units of the Philippine National Police within their
jurisdiction:
SEC. 28. Powers of Local Chief Executives over the Units of the
Philippine National Police.The extent of operational supervision and
control of local chief executives over the police force, fire protection
unit, and jail management personnel assigned in their respective
jurisdictions shall be governed by the provisions of Republic Act
 Numbered Sixty-nine hundred seventy-five (R.A. No. 6975), otherwise
known as The Department of the Interior and Local Government Act of
1990, and the rules and regulations issued pursuant thereto.

In particular, Section 61, Chapter 5 of R.A. No. 6975 [32] on the Bureau of Jail
Management and Penology provides:
Sec. 61. Powers and Functions. - The Jail Bureau shall exercise
supervision and control over all city and municipal jails. The provincial
jails shall be supervised and controlled by the provincial
governmentwithin its jurisdiction, whose expenses shall be subsidized
by the National Government for not more than three (3) years after the
effectivity of this Act.

The power of control is the power of an officer to alter or modify or set aside what
a subordinate officer had done in the performance of his duties and to substitute the
judgment of the former for that of the latter.[33] An officer in control lays down the
rules in the doing of an act. If they are not followed, he may, in his discretion,
order the act undone or re-done by his subordinate or he may even decide to do it
himself.[34]

On the other hand, the power of supervision means overseeing or the authority of
an officer to see to it that the subordinate officers perform their duties. [35] If the
subordinate officers fail or neglect to fulfill their duties, the official may take such
action or step as prescribed by law to make them perform their duties. Essentially,
the power of supervision means no more than the power of ensuring that laws are
faithfully executed, or that subordinate officers act within the law. [36] The
supervisor or superintendent merely sees to it that the rules are followed, but he
does not lay down the rules, nor does he have discretion to modify or replace
them.[37]

Significantly, it is the provincial government and not the governor alone which has
authority to exercise control and supervision over provincial jails. In any case,
neither of said powers authorizes the doing of acts beyond the parameters set by
law. On the contrary, subordinates must be enjoined to act within the bounds of
law. In the event that the subordinate performs an act ultra vires, rules may be laid
down on how the act should be done, but always in conformity with the law.

In a desperate attempt to stretch the scope of his powers, petitioner Ambil, Jr. cites
Section 1731, Article III of the Administrative Code of 1917 on Provincial jails in
support. Section 1731 provides:
SEC. 1731. Provincial governor as keeper of jail.The governor
of the province shall be charged with the keeping of the provincial
jail, and it shall be his duty to administer the same in accordance
with law and the regulations prescribed for the government of
provincial prisons. The immediate custody and supervision of the jail
may be committed to the care of a jailer to be appointed by the
provincial governor. The position of jailer shall be regarded as within the
unclassified civil service but may be filled in the manner in which
classified positions are filled, and if so filled, the appointee shall be
entitled to all the benefits and privileges of classified employees, except
that he shall hold office only during the term of office of the appointing
governor and until a successor in the office of the jailer is appointed and
qualified, unless sooner separated. The provincial governor shall,
under the direction of the provincial board and at the expense of the
province, supply proper food and clothing for the prisoners; though
the provincial board may, in its discretion, let the contract for the feeding
of the prisoners to some other person. (Emphasis supplied.)

This provision survived the advent of the Administrative Code of 1987. But again,
nowhere did said provision designate the provincial governor as the provincial
jailer, or even slightly suggest that he is empowered to take personal custody of
prisoners. What is clear from the cited provision is that the provincial governors
duty as a jail keeper is confined to the administration of the jail and the
procurement of food and clothing for the prisoners. After all, administrative acts
pertain only to those acts which are necessary to be done to carry out legislative
policies and purposes already declared by the legislative body or such as are
devolved upon it[38] by the Constitution. Therefore, in the exercise of his
administrative powers, the governor can only enforce the law but not supplant it.

Besides, the only reference to a transfer of prisoners in said article is found in

Section 1737[39] under which prisoners may be turned over to the jail of the
neighboring province in case the provincial jail be insecure or insufficient to
accommodate all provincial prisoners. However, this provision has been
superseded by Section 3, Rule 114 of the Revised Rules of Criminal Procedure, as
amended. Section 3, Rule 114 provides:
SEC. 3. No release or transfer except on court order or bail.-No
person under detention by legal process shall be released or transferred
except upon order of the court or when he is admitted to bail.

Indubitably, the power to order the release or transfer of a person under detention
by legal process is vested in the court, not in the provincial government, much less
the governor. This was amply clarified by Asst. Sec. Ingeniero in his
communication[40] dated October 6, 1998 addressed to petitioner Ambil, Jr. Asst.
Sec. Ingeniero wrote:
06 October 1996

GOVERNOR RUPERTO AMBIL

Provincial Capitol
Borongan, Eastern Samar

Dear Sir:

This has reference to the letter of Atty. Edwin B. Docena, and the
reports earlier received by this Department, relative to your alleged
action in taking into custody Mayor Francisco Aising Adalim of Taft,
that province, who has been previously arrested by virtue by a warrant of
arrest issued in Criminal Case No. 10963.

If the report is true, it appears that your actuation is not in accord with
the provision of Section 3, Rule 113 of the Rules of Court, which
mandates that an arrested person be delivered to the nearest police
station or jail.

Moreover, invoking Section 61 of RA 6975 as legal basis in taking

custody of the accused municipal mayor is misplaced. Said section
merely speaks of the power of supervision vested unto the provincial
governor over provincial jails. It does not, definitely, include the power
to take in custody any person in detention.
 In view of the foregoing, you are hereby enjoined to conduct yourself
within the bounds of law and to immediately deliver Mayor Adalim to
the provincial jail in order to avoid legal complications.

Please be guided accordingly.

Very truly yours,

(SGD.)
JESUS I. INGENIERO
Assistant Secretary

Still, petitioner Ambil, Jr. insisted on his supposed authority as a provincial

jailer. Said petitioners usurpation of the court's authority, not to mention his open
and willful defiance to official advice in order to accommodate a former political
party mate,[41] betray his unmistakable bias and the evident bad faith that attended
his actions.

Likewise amply established beyond reasonable doubt is the third element of the
crime. As mentioned above, in order to hold a person liable for violation of Section
3(e), R.A. No. 3019, it is required that the act constituting the offense consist of
either (1) causing undue injury to any party, including the government, or (2)
giving any private party any unwarranted benefits, advantage or preference in the
discharge by the accused of his official, administrative or judicial functions.

In the case at hand, the Information specifically accused petitioners of giving

unwarranted benefits and advantage to Mayor Adalim, a public officer charged
with murder, by causing his release from prison and detaining him instead at the
house of petitioner Ambil, Jr. Petitioner Ambil, Jr. negates the applicability of
Section 3(e), R.A. No. 3019 in this case on two points. First, Section 3(e) is not
applicable to him allegedly because the last sentence thereof provides that the
provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses, permits or other concessions and
he is not such government officer or employee. Second, the purported unwarranted
benefit was accorded not to a private party but to a public officer.
However, as regards his first contention, it appears that petitioner Ambil, Jr. has
obviously lost sight, if he is not altogether unaware, of our ruling in Mejorada v.
Sandiganbayan[42] where we held that a prosecution for violation of Section 3(e) of
the Anti-Graft Law will lie regardless of whether or not the accused public officer
is charged with the grant of licenses or permits or other concessions. Following is
an excerpt of what we said in Mejorada,
Section 3 cited above enumerates in eleven subsections the corrupt
practices of any public officers (sic) declared unlawful. Its reference to
any public officer is without distinction or qualification and it specifies
the acts declared unlawful. We agree with the view adopted by the
Solicitor General that the last sentence of paragraph [Section 3] (e) is
intended to make clear the inclusion of officers and employees of
officers (sic) or government corporations which, under the ordinary
concept of public officers may not come within the term. It is a strained
construction of the provision to read it as applying exclusively to public
officers charged with the duty of granting licenses or permits or other
concessions.[43] (Italics supplied.)

In the more recent case of Cruz v. Sandiganbayan,[44] we affirmed that a

prosecution for violation of said provision will lie regardless of whether the
accused public officer is charged with the grant of licenses or permits or other
concessions.[45]

Meanwhile, regarding petitioner Ambil, Jr.s second contention, Section 2(b) of

R.A. No. 3019 defines a public officer to include elective and appointive officials
and employees, permanent or temporary, whether in the classified or unclassified
or exemption service receiving compensation, even nominal from the
government. Evidently, Mayor Adalim is one. But considering that Section 3(e) of
R.A. No. 3019 punishes the giving by a public officer of unwarranted benefits to a
private party, does the fact that Mayor Adalim was the recipient of such benefits
take petitioners case beyond the ambit of said law?

We believe not.

In drafting the Anti-Graft Law, the lawmakers opted to use private party rather
than private person to describe the recipient of the unwarranted benefits, advantage
or preference for a reason. The term party is a technical word having a precise
meaning in legal parlance[46] as distinguished from person which, in general usage,
refers to a human being.[47] Thus, a private person simply pertains to one who is not
a public officer. While a private party is more comprehensive in scope to mean
either a private person or a public officer acting in a private capacity to protect his
personal interest.

In the present case, when petitioners transferred Mayor Adalim from the provincial
jail and detained him at petitioner Ambil, Jr.s residence, they accorded such
privilege to Adalim, not in his official capacity as a mayor, but as a detainee
charged with murder. Thus, for purposes of applying the provisions of Section
3(e), R.A. No. 3019, Adalim was a private party.

Moreover, in order to be found guilty under the second mode, it suffices that the
accused has given unjustified favor or benefit to another in the exercise of his
official, administrative or judicial functions.[48] The word unwarranted means
lacking adequate or official support; unjustified; unauthorized or without
justification or adequate reason. Advantage means a more favorable or improved
position or condition; benefit, profit or gain of any kind; benefit from some course
of action. Preference signifies priority or higher evaluation or desirability; choice
or estimation above another.[49]

Without a court order, petitioners transferred Adalim and detained him in a place
other than the provincial jail. The latter was housed in much more comfortable
quarters, provided better nourishment, was free to move about the house and watch
television. Petitioners readily extended these benefits to Adalim on the mere
representation of his lawyers that the mayors life would be put in danger inside the
provincial jail.

As the Sandiganbayan ruled, however, petitioners were unable to establish the

existence of any risk on Adalims safety. To be sure, the latter would not be alone
in having unfriendly company in lockup. Yet, even if we treat Akyatans gesture of
raising a closed fist at Adalim as a threat of aggression, the same would still not
constitute a special and compelling reason to warrant Adalims detention outside
the provincial jail. For one, there were nipa huts within the perimeter fence of the
jail which could have been used to separate Adalim from the rest of the prisoners
while the isolation cell was undergoing repair. Anyhow, such repair could not have
exceeded the 85 days that Adalim stayed in petitioner Ambil, Jr.s house. More
importantly, even if Adalim could have proven the presence of an imminent peril
on his person to petitioners, a court order was still indispensable for his transfer.

The foregoing, indeed, negates the application of the justifying circumstances

claimed by petitioners.

Specifically, petitioner Ambil, Jr. invokes the justifying circumstance of

fulfillment of duty or lawful exercise of right or office. Under paragraph 5, Article
11 of the RPC, any person who acts in the fulfillment of a duty or in the lawful
exercise of a right or office does not incur any criminal liability. In order for this
justifying circumstance to apply, two requisites must be satisfied: (1) the accused
acted in the performance of a duty or in the lawful exercise of a right or office; and
(2) the injury caused or the offense committed be the necessary consequence of
the due performance of duty or the lawful exercise of such right or office. [50] Both
requisites are lacking in petitioner Ambil, Jr.s case.

As we have earlier determined, petitioner Ambil, Jr. exceeded his authority when
he ordered the transfer and detention of Adalim at his house. Needless to state, the
resulting violation of the Anti-Graft Law did not proceed from the due
performance of his duty or lawful exercise of his office.

In like manner, petitioner Apelado, Sr. invokes the justifying circumstance of

obedience to an order issued for some lawful purpose. Under paragraph 6, Article
11 of the RPC, any person who acts in obedience to an order issued by a superior
for some lawful purpose does not incur any criminal liability. For this justifying
circumstance to apply, the following requisites must be present: (1) an order has
been issued by a superior; (2) such order must be for some lawful purpose; and (3)
the means used by the subordinate to carry out said order is lawful. [51] Only the
first requisite is present in this case.

While the order for Adalims transfer emanated from petitioner Ambil, Jr., who was
then Governor, neither said order nor the means employed by petitioner Apelado,
Sr. to carry it out was lawful. In his capacity as the Provincial Jail Warden of
Eastern Samar, petitioner Apelado, Sr. fetched Mayor Adalim at the provincial jail
and, unarmed with a court order, transported him to the house of petitioner Ambil,
Jr. This makes him liable as a principal by direct participation under Article
17(1)[52] of the RPC.

An accepted badge of conspiracy is when the accused by their acts aimed at the
same object, one performing one part of and another performing another so as to
complete it with a view to the attainment of the same object, and their acts
although apparently independent were in fact concerted and cooperative, indicating
closeness of personal association, concerted action and concurrence of
sentiments.[53]

Conspiracy was sufficiently demonstrated by petitioner Apelado, Sr.s willful

cooperation in executing petitioner Ambil, Jr.s order to move Adalim from jail,
despite the absence of a court order.Petitioner Apelado, Sr., a law graduate, cannot
hide behind the cloak of ignorance of the law. The Rule requiring a court order to
transfer a person under detention by legal process is elementary.Truth be told, even
petitioner governor who is unschooled in the intricacies of the law expressed
reservations on his power to transfer Adalim. All said, the concerted acts of
petitioners Ambil, Jr. and Apelado, Sr. resulting in the violation charged, makes
them equally responsible as conspirators.

As regards the penalty imposed upon petitioners, Section 9(a) of R.A. No. 3019
punishes a public officer or a private person who violates Section 3 of R.A. No.
3019 with imprisonment for not less than six (6) years and one (1) month to not
more than fifteen (15) years and perpetual disqualification from public
office. Under Section 1 of the Indeterminate Sentence Law or Act No. 4103, as
amended by Act No. 4225, if the offense is punished by a special law, the court
shall sentence the accused to an indeterminate sentence, the maximum term of
which shall not exceed the maximum fixed by said law and the minimum shall not
be less than the minimum term prescribed by the same.

Thus, the penalty imposed by the Sandiganbayan upon petitioner Ambil, Jr. of
imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12)
years and four (4) months is in accord with law. As a co-principal without the
benefit of an incomplete justifying circumstance to his credit, petitioner Apelado,
Sr. shall suffer the same penalty.
WHEREFORE, the consolidated petitions are DENIED. The Decision of the
Sandiganbayan in Criminal Case No. 25892 is AFFIRMED WITH
MODIFICATION. We find petitioners Ruperto A. Ambil, Jr. and Alexandrino R.
Apelado, Sr. guilty beyond reasonable doubt of violating Section 3(e), R.A. No.
3019. Petitioner Alexandrino R. Apelado, Sr. is, likewise, sentenced to an
indeterminate penalty of imprisonment for nine (9) years, eight (8) months and one (1)
day to twelve (12) years and four (4) months.

With costs against the petitioners.

SO ORDERED.