FIRST DIVISION
THE PEOPLE OF THE G.R. NO. 170837
Appellee,
Present:
PANGANIBAN, C.J., Chairperson,
- versus - YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO,
JJ.
DEXTER
TORRES y DELA
CRUZ,
Appellant. Promulgated:
x-----------------------------------------------------------------------------------------x
CALLEJO, SR., J.:
Dexter
Torres was charged with violation of Section 8, Article II of Republic Act (R.A.)
No. 6425, as amended, for unlawful possession of 831.91 grams of marijuana
fruiting tops, a prohibited drug; as well as Section 16, Article
The indictment in Criminal Case No. 08-1334
for violation of Section 8, Article II of R.A. No. 6425 reads:
That on or about
CONTRARY
TO LAW.[1]
Upon the other hand, the accusatory
portion of the Information in Criminal Case No. 08-1344 for violation of
Section 16, Article
That on or about
CONTRARY TO LAW.[2]
The two (2) criminal cases were
jointly tried at the Regional Trial Court (
The case for the prosecution is as
follows:
In the early afternoon of
Just before searching Dexter’s house,
That same afternoon, Kagawads Edward and Ernesto both signed
a certification[6] as to
the conduct of the search, certifying, among others, that it was conducted in
an orderly and peaceful manner; no unnecessary force was employed; nobody was
hurt; and nothing was taken without proper receipt. Henny, however, refused to
sign the certification.
SPECIMEN SUBMITTED:
Exh “A” – one
(1) brick of suspected Marijuana fruiting tops with weight of 831.91 grams wrapped with newspaper print and
masking tape with markings and further placed
in one (1) brown long envelope with description. xxx
Exh “B-B1” – Two (2) small heat-sealed transparent
plastic sachets wrapped with masking tape with markings, containing white
crystalline substances with total
weight of 0.26 gm and further placed in one (1) cellophane with description. xxx
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of prohibited and/or
regulated drugs. xxx
F I N D I N G S:
Qualitative examination conducted on the above-stated
specimen gave the following results:
Exh “A” – gave
POSITIVE result to the test for Marijuana, a prohibited drug. xxx
Exh “B-B1” – gave POSITIVE result to the test for
Methamphetamine Hydrochloride, a regulated drug. xxx
C O N C L U S I O N:
Exh
“A” – contains Marijuana, a prohibited drug.
xxx
Exh “B-B1” – contains Methamphetamine Hydrochloride,
a regulated drug. xxx[7]
On
Dexter, through counsel, objected to
the offer of evidence on the ground that the same were “confiscated not from
[his] possession as he was then staying in
The defense consists of the
testimonies of Dexter himself, his sister Henny Gatchalian, and his relative, Kagawad Ernesto, are predicated on
denial and frame-up.
The defense version is as follows:
Thirty-eight-year
old Dexter eked out a living as a carpenter.
He averred that weeks before his house was searched, he was already in
Gabu,
Kagawad Ernesto, aged 65 years, Dexter’s kin,
narrated that on
Henny, aged 35 years, recounted that
at about
drawers. Meanwhile, she remained confined in the room, without a clue as to
what was taking place. After the search, the policemen brought her out of the
house and showed to her the shabu and
marijuana which the police claimed to have found inside the house. She denied
signing anything save the search warrant. Henny, however, told the court that
it was Dexter’s mistress, not his wife, that her brother brought to Gabu,
On
WHEREFORE, the Court finds
accused Dexter Torres y De La Cruz “GUILTY” beyond reasonable doubt in both
cases and is hereby sentenced to suffer the penalty of Reclusion Perpetua and a fine of Five Hundred Thousand (P500,000.00)
Pesos in Criminal Case No. 08-1334 and, the indeterminate prison term of six
(6) years, one (1) day of prision mayor, as minimum, to twelve (12)
years and one (1) day of reclusion temporal, as maximum, and a
fine of Five Hundred Thousand (P500,000.00) Pesos in Criminal Case No.
08-1344.
With costs.
SO ORDERED.[13]
The trial court rejected the defense of alibi cum frame-up of the accused and upheld in
favor of the prosecution the presumption of regularity in the performance of
official duties.
Dexter appealed his conviction to
this Court, docketed as G.R. Nos. 162542-43, praying for the reversal of the
judgment. He claimed that the search
warrant had been unlawfully implemented and that the prosecution failed to
prove his guilt beyond reasonable doubt. He assigned the following errors
purportedly committed by the trial court:
I
The court a quo gravely erred in finding that the
search warrant issued against herein appellant was validly and lawfully
implemented.
Ii
The court a quo erred in finding that the guilt of
the accused-appellant for the crime charged
The appeal was transferred to the CA
for appropriate action and disposition per
Resolution[15] of this
Court dated
On
WHEREFORE, in view of the
foregoing, the joint decision of the Regional Trial Court, Branch 08 of Aparri,
Cagayan in Criminal Cases Nos. 08-1334 and 08-1344 is hereby AFFIRMED WITH
MODIFICATIONS. Accused-appellant Dexter
Torres y Dela Cruz is hereby found GUILTY of violating Sections 8 and 16
of Republic Act No. 6425, as amended by
Republic Act No. 7659, and is hereby sentenced to suffer:
(1) the penalty of reclusion perpetua and a fine of Five Hundred
Thousand Pesos (P500,000.00) in Criminal Case No. 08-1334; and
(2) an indeterminate sentence of 6 months
of arresto mayor to 4 years and 2 months of prison
correccional in Criminal Case 08-1344.
SO ORDERED.[18]
Dexter sought reconsideration, which the
CA denied.[19]
Unfazed, Dexter, now the appellant,
appealed anew to this Court, adopting by way of manifestation the same
arguments before the CA.[20]
Appellant
insists that the items seized from his house are inadmissible as evidence,
being the fruits of an illegal search. He maintains that the manner of search
conducted in his residence had failed to comply with the mandatory provisions
of Section 8 (formerly Section 7), Rule 126 of the 2000 Rules of Criminal
Procedure, which provides:
SEC. 8. Search
of house, room, or premises, to be made in presence of two witnesses. – No
search of a house, room, or any other premise shall be made except in the
presence of the lawful occupant thereof or any member of his family or in the
absence of the latter, two witnesses of sufficient age and discretion residing
in the same locality.
Appellant
argues that Henny is not a “lawful occupant” of the house as contemplated in
the above section. And even if she is one, her presence did not cure the
illegality of the search since she was prevented by the police from actually
witnessing the search as it was being conducted. He points out that her sister was confined by
the police in one of the rooms of the house while the simultaneous search was
going on in the other portion thereof. Moreover, though the raiding party had
summoned two barangay kagawads as
witnesses, the police were already through searching the house when Kagawad Ernesto arrived. In other words, the latter, too, had failed to
witness the search.[21]
The appeal is
not meritorious.
Contrary
to appellant’s claim, Henny and Barangay
Kagawad Ernesto were present when the lawmen searched his house. The
illicit drugs and paraphernalia were found in the master’s bedroom stashed
inside the second deck of a wooden cabinet. This is clear from the positive and
categorical testimony of PO2 Tirso Pascual, a member of the raiding team:
FISCAL :
Q What did you do when you arrived at the
house of the
accused at Salvanera St. Paradise, Gonzaga, Cagayan?
A SPO4
Lasam, the officer on the case who was handling the Search
Warrant,
informed the persons present at that house of the purpose of the members, Sir.
Q By the way, was the accused present?
A Dexter
Torres was not present, Sir.
Q Who were in their house at that time?
A His sister, Henny Gatchalian and some
of his children, Sir.
x x x
Q And
after informing the sister of the accused of your purpose, that is to serve the
search warrant against her brother, what did you do?
A In the presence of the barangay kagawad and
the sister
of the accused, we began to search the
house, Sir.
Q And were you able to discover anything
inside the house of
the accused?
A Yes, Sir.
Q What
were you able to find out inside the house?
A During
the conduct of the search, we were able to recover
one
brick form of dried marijuana wrapped in a newspaper, placed inside a wooden
cabinet particularly at the second deck of the wooden cabinet, Sir.
Q Aside
from that, what did you see inside the house?
A While
conducting the search, we recovered two transparent
plastic sachet containing, which we believe to be
shabu and
some other materials such as lighter, aluminum foils, Sir.[22]
x x x
COURT:
Q Where was Henny Gatchalian at the time
of the search?
A Always
beside us, Your Honor.
Q You mean Henny Gatchalian was also inside
the house?
A Yes, Your Honor.
FISCAL:
Q So there were five of you inside the
house?
A Yes, Sir.
Q You,
Liwag, councilmen Sagnep and Vivit and Gatchalian?
A Yes, Sir.[23]
PO2 Pascual’s above testimony was
corroborated by
The
We note, however, that her
credibility is adversely affected by the inconsistencies in her
statements. She could not even exactly
say where she was staying before the police arrived to conduct the search. Thus, the transcript of her testimony
provides as follows:
FISCAL
NELJOE CORTES: You do not own a house in
Gonzaga?
Witness GATCHALIAN:
We only stay in the house of my parents-in-law, Sir.
Q: You
stated while ago that you were then in your house when they conducted the
search?
A: Yes, Sir.
Q: And you
likewise stated that your house is situated beside the house of Dexter Torres
A: Yes, Sir.
Q: The
house of your father is situated about 200 meters away from the house of Dexter
Torres, is it not?
A: Yes, Sir.
Q: And
according to you at that time, you were staying in the house of your father-in-law?
A: I was
not staying in the house of my father, Sir.
Q: Because
you were then staying in the house of Dexter Torres?
A: Yes, Sir.
Q: And as
a matter of fact, you were in the house of Dexter Torres when the police
arrived, is it not?
A: I was
in the house of my father, Sir.
Q: So you
now agree with me that in August 2001, you were staying in the house of your
brother Dexter Torres?
A: No, Sir.
Q: Did you
not state a while ago that you are staying in your brother’s house?
A: Yes, Sir,
but when the police conducted the search, I was in the house of my father.
Q: Again,
you seem not to be telling the truth?
A: Why
not, Sir.
Q: A while
ago also you stated that you are staying in the house of your father-in-law,
which is about 200 meters away?
A: Yes, Sir.
Q: So at
that time you were staying in three houses, in the house of your brother, in
the house of your father-in-law and in the house of your (father)?
A: I am
not staying in the house my father-in-law, Sir.
Q: So your
statement earlier that you are staying in your father-in- law’s house is not
correct?
A: No, Sir.
Q: So the
house that you are referring to in your direct examination is actually the
house of your father or the house of Dexter?
A: (I)
was only told by Dexter that I will just clean the house if he leaves the place,
Sir.
Consistent with the trial
court’s own findings as between the testimony of Gatchalian and the testimonies
of the police officers, this Court finds the testimonies of the police officers
more credible. Aside from the principle
that testimonies of police officers deserve full faith and credit given the
presumption that they have performed their duties regularly, we note that the
prosecution witnesses gave consistent and straightforward narrations of what
transpired on
The presence of barangay
council members Edward Sagnep and Ernesto Vivit during the search was also
sufficiently established. These barangay officials even affixed their
signatures on the confiscation receipt issued by PO3 Jessie Liwag that contains
a statement that the seized properties were found in the presence of Brgy.
Kag. Edward R. Sagnep and Brgy. Kag.
Ernesto Q. Vivit.
Barangay
kagawad
Ernesto Vivit’s retraction and assertion that he was not really present when
the policemen searched the house of the accused-appellant fail to
persuade. During cross-examination,
Vivit, a relative of the accused-appellant, even testified in court:
FISCAL NELJOE CORTES: You were required to sign a
confiscation receipt?
A: Yes,
sir.
Q: You
were told that the document that you were asked to sign is a Confiscation Receipt,
meaning, the items you enumerated therein were actually taken as a result of
the search?
A: Yes,
sir.
Q: And you
signed that document because you know for a fact that the items were actually
recovered inside the house of the accused?
A: Yes,
sir.
Q: And
that is the truth?
A: Yes,
sir.
As correctly pointed out by the trial court:
The afore statements of this defense witness clearly
established the fact that, there was nothing irregular in the execution of the
search warrant. It also establishes the
material fact that, what was claimed to have been recovered, seized and
confiscated from the cabinet located in one of the rooms of Dexter’s house, to
wit: dried marijuana, two (2) plastic sachets of shabu, lighter, match box, and
aluminum foils are true. True, because
Ernesto Vivit, a witness to the search and a barangay councilman signed the
confiscation receipt voluntarily because he knew for a fact that said items
were actually recovered from the house of the accused.”
Even defense witness Henny
Gatchalian mentioned in her testimony that Ernesto Vivit was with the policemen
when they conducted the search.[25]
More importantly, it is now too late
in the day for appellant to object to the admissibility of the evidence seized
pursuant to the search warrant. Though he seasonably objected after the
prosecution formally offered its evidence, his objection was not based on
constitutional grounds, but rather on the ground that he was not in actual
possession of the premises at the time the search was conducted.[26]
In the case of Demaisip v. Court of Appeals,[27]
we held:
At any rate, objections to
the legality of the search warrant and to
the admissibility of the evidence obtained thereby were deemed waived when no objection to the legality of the search warrant
was raised during the trial of the case nor to the admissibility of the
evidence obtained through said warrant.
Indeed, the right to be secure from
unreasonable searches and seizures, like any other right, can be waived and the
waiver may be made either expressly or impliedly.[28]
Hard to believe is appellant’s
insinuation that the evidence for the prosecution were planted. His very
conduct following his arrest would belie this allegation:
First. He
failed to complain about this matter when he was apprehended nor bestirred
himself to bring it up during his preliminary investigation. He could not even
identify the person, the policeman or policemen who allegedly planted the
evidence. In fact, it was only during this appeal that appellant accentuated this
alleged frame-up.
Second. The
appellant failed to inform his counsel of the alleged planting of evidence by
the policemen; if he had done so, for sure, the said counsel would have
prepared his affidavit and filed the appropriate motion in court for the
suppression of the things/articles seized by the policemen.
Third. We
find it incredible that the policemen planted said evidence in full view of Kagawad Edward, whose presence during
the search was undisputed. This is so because the policemen could be prosecuted
for planting evidence and, if convicted, sentenced to death under Section 19 of
R.A. No. 7659:
SECTION 19. Section 24
of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972,
is hereby amended to read as follows:
Sec. 24. Penalties for Government Officials and
Employees and Officers and Members of Police Agencies and the Armed Forces,
‘Planting’ of Evidence. – The maximum penalties provided for [in] Sections
3, 4(1), 5(1), 6, 7, 8, 9, 11, 12 and 13 of Article II and Sections 14, 14-A,
15(1), 16 and 19 of Article
Any such above government official,
employee or officer who is found guilty of “planting” any dangerous drugs
punished in Sections 3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A,
15 and 16 of Article
The incantation of frame-up is
nothing new. It is a common and standard line of defense in most
prosecutions for violation of the Dangerous Drugs Law. While such defense
cannot and should not always be considered as contrived, nonetheless, it is
generally rejected for it can easily be concocted but is difficult to
prove. Police officers are, after all, presumed to have acted regularly
in the performance of their official functions, in the absence of clear and
convincing proof to the contrary, or that they are motivated by ill-will.[29]
Appellant next submits that his
absence during the search coupled with the fact that he was not caught in
possession of the illicit drugs and paraphernalia are circumstances sufficient
enough to exonerate him.[30]
We are not persuaded.
The essential elements of the crime
of illegal possession of regulated drugs are the following: (a) the accused is
found in possession of a regulated drug; (b) the person is not authorized by
law or by duly constituted authorities; and (c) the accused has knowledge that
the said drug is a regulated drug.[31]
The elements of
illegal possession of prohibited drugs are as follows: (a) the accused is in
possession of an item or object which is identified to be a prohibited
drug; (b) such possession is not authorized by law; and (c)
the accused freely or consciously possessed the prohibited drug.[32]
The
fact that appellant was not in his residence when it was searched nor caught in flagrante delicto possessing the
illicit drugs and paraphernalia does not
dent the case of the prosecution. As a matter of law, when prohibited and
regulated drugs are found in a house or other building belonging to and
occupied by a particular person, the presumption arises that such person is in
possession of such drugs in violation of law, and the fact of finding the same
is sufficient to convict. Otherwise
stated, the finding of the illicit drugs and paraphernalia in the house owned
by the appellant raised the presumption of knowledge and, standing alone, was
sufficient to convict.[33]
This Court, in People v. Tira,[34]
ruminated on the juridical concept of “possession” under Section 16, Article
x x x This crime is mala prohibita, and as such, criminal
intent is not an essential element. However, the prosecution must prove that
the accused had the intent to possess (animus
posidendi) the drugs. Possession, under the law, includes not only actual
possession, but also constructive possession. Actual possession exists when the
drug is in the immediate physical possession or control of the accused. On the
other hand, constructive possession exists when the drug is under the dominion
and control of the accused or when he has the right to exercise dominion and
control over the place where it is found. Exclusive possession or control is
not necessary. The accused cannot avoid conviction if his right to exercise
control and dominion over the place where the contraband is located, is shared
with another.
Thus, conviction need not be
predicated upon exclusive possession, and a showing of non-exclusive possession
would not exonerate the accused. Such fact of possession may be proved by
direct or circumstantial evidence and any reasonable inference drawn
therefrom. However, the prosecution must
prove that the accused had knowledge of the existence and presence of the drug
in the place under his control and dominion and the character of the drug.
Since knowledge by the accused of the existence and character of the drugs in
the place where he exercises dominion and control is an internal act, the same
may be presumed from the fact that the dangerous drugs is in the house or place
over which the accused has control or dominion, or within such premises in the
absence of any satisfactory explanation.
In the instant case,
appellant failed to present any evidence to rebut the existence of animus possidendi over the illicit drugs
and paraphernalia found in his residence.
His claim that he was not aware that such illegal items were in his
house is insufficient. We have time and again ruled that mere denial cannot
prevail over the positive testimony of a witness. Mere denial, just like alibi, is a
self-serving negative evidence which cannot be accorded greater evidentiary
weight than the declaration of credible witnesses who testify on affirmative
matters. As between a categorical testimony
that rings of truth on one hand, and a bare denial on the other, the former is
generally held to prevail.[35]
Moreover, his defense of frame-up, as we said, is a common and standard line of
defense which is invariably viewed with disfavor, it being capable of easy
concoction and difficult to prove.[36] Considering that no clear and convincing
evidence was presented to prove such allegation, the presumption of regularity
in the performance of official duty,[37]
as well as the principle that findings of the trial court on the credibility of
witnesses, especially when affirmed by the CA, are entitled to great respect
and are accorded the highest consideration,[38]
must prevail over the appellant’s imputation of ill-motive on the part of the
policemen who conducted the search.
The RTC and the CA, in Criminal Case
No. 08-1334, correctly meted against appellant the penalty of reclusion perpetua and the P500,000.00
fine. The crime of violation of
Section 8, Article II of R.A. No. 6425, as amended, for illegal possession of
831.91 grams of marijuana, a prohibited drug, is punishable by reclusion perpetua to death. Considering that there are no qualifying
circumstances, the appellant is sentenced to suffer the penalty of reclusion perpetua, conformably to
Article 63 of the Revised Penal Code.
The Court, however, will modify the
penalty the CA imposed upon the appellant in Criminal Case No. 08-1344.
Under Section 16, Article
QUANTITY IMPOSABLE PENALTY
Less than one (1) gram to
49.25 grams prision correccional
49.26
grams to 98.50 grams prision
mayor
98.51
grams to 147.75 grams reclusion temporal
147.76
grams to 199 grams reclusion perpetua
Considering that the regulated drug
found in the possession of the appellant is only 0.26 grams, the imposable
penalty for the crime is prision
correccional. Applying the
Indeterminate Sentence Law, the appellant should have been sentenced to suffer
an indeterminate penalty of from four (4) months and one (1) day of arresto mayor in its medium period, as
minimum, to three (3) years of prision
correccional in its medium period, as maximum, for violation of Section 16
of R.A. No. 6425, as amended.
In view of the quantity of shabu confiscated in this case, the CA
correctly deleted the penalty of fine imposed on appellant, as the second
paragraph of Section 20 of R.A. No. 6425, as amended by Section 17 of R.A. No. 7659,
provides only for the penalty of imprisonment.
Republic Act No. 9165, otherwise
known as the Comprehensive Dangerous Drugs Act of 2002, increased the penalty
for illegal possession of less than
five (5) grams of shabu to
imprisonment of twelve (12) years and one (1) day to twenty years and a fine
ranging from three hundred thousand (P300,000.00) to four hundred
thousand pesos (P400,000.00). However, since this law is not favorable
to appellant, it cannot be given retroactive application in the instant case. This
is the mandate of Article 22 of the Revised Penal Code, which reads:
ART. 22. Retroactive
effect of penal laws. – Penal laws shall have a retroactive effect insofar
as they favor the persons guilty of felony, who is not a habitual criminal, as
this term is defined in Rule 5 of Article 62 of this Code, although at the time
of the publication of such laws a final sentence has been pronounced and the
convict is serving the same.
The same law also changed the penalty for illegal possession of 500 grams or more of marijuana to life
imprisonment to death, and a fine
ranging from P500,000.00 to P10,000,000.00. Obviously, the amendment of the penalty from reclusion perpetua to life imprisonment to
death in R.A. No. 9165 cannot, likewise, be applied retroactively to the
present case since it would also be unfavorable to appellant.
IN LIGHT OF ALL THE FOREGOING, the Decision
appealed from is AFFIRMED with
MODIFICATION. Accordingly, judgment
is hereby rendered as follows:
(1) In
Criminal Case No. 08-1334, the appellant is found GUILTY beyond reasonable doubt of violation of Section 8, Article
II of Republic Act No. 6425, as amended, and is hereby SENTENCED to suffer the penalty of reclusion perpetua. He is also ORDERED
to pay a fine of P500,000.00 without subsidiary imprisonment in case of
insolvency;
(2) In
Criminal Case No. 08-1344, the appellant is hereby found GUILTY beyond reasonable doubt of violation of Section 16, Article
III of Republic Act No. 6425, as amended, and is SENTENCED
to suffer an indeterminate penalty from Four (4) months and One (1) day of arresto mayor, in its medium period, as
minimum to Three (3) years of prision
correccional, in its medium period, as maximum. No costs.
SO ORDERED.
ROMEO J. CALLEJO, SR.
Associate Justice
WE
CONCUR:
Chief Justice
Chairperson
CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
Associate Justice
Associate Justice
Pursuant to Section 13, Article VIII of the
Constitution, it is hereby certified that the conclusions in the above decision
were reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
ARTEMIO
V. PANGANIBAN
Chief Justice
[1] Records, Vol. 1, p. 2.
[2] Records, Vol. 2, p. 1.
[3] Records, Vol. 1, pp. 27-28; records, Vol. 2, pp. 22-23.
[4] Records, Vol. 1, p. 8.
[5] TSN,
[6] Records, Vol. 1, p. 10.
[7]
[8]
[9]
[10] TSN,
[11] TSN,
[12]
[13]
Records, Vol. 1, p. 193.
[14] CA rollo, p. 48.
[15]
[16] G.R.
Nos. 147678-87,
[17] G.R.
No. 93028,
[18] CA rollo, p. 114.
[19]
[20] Rollo, p. 18.
[21] CA rollo,
pp. 52-56.
[22] TSN,
[23]
[24]
[25] CA rollo, pp. 107-110.
[26]
Records, Vol. 1, pp. 114-115.
[27] G.R.
No. 89393,
[28] People v. Omaweng, G.R. No. 99050, September 2, 1992, 213 SCRA 462, 471, citing People v. Malasugui, 63 Phil. 221, 226 (1936).
[29] People v. Huang Zhen Hua, G.R. No.
139301,
[30] CA rollo, p. 56.
[31] People v. Tira, G.R. No. 139615,
[32]
[33] Cupcupin v. People, 440 Phil. 712, 730 (2002).
[34] Supra note 31, 151-152.
[35] People v. Macalaba, 443 Phil. 565, 578 (2003).
[36] People v. Solon, G.R. No. 106639,
[37] Rule 131, Sec. 3 (m), Revised Rules of Court.
[38] Garcia v. CA, 324 Phil. 846, 853 (1996).