Republic
of the
Supreme Court
THIRD DIVISION
SR.
Petitioner,
Present:
YNARES-SANTIAGO, J.,
Chairperson,
- versus
- AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.
THE
PEOPLE OF THE Promulgated:
PHILIPPINES,
Respondent. February 22, 2008
x - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - x
D E C I S I O N
REYES, R.T., J.:
THE law looks forward, never
backward. Lex prospicit, non respicit.
A new law has a prospective, not retroactive, effect.[1] However, penal laws that favor a guilty person,
who is not a habitual criminal, shall be given retroactive effect.1-a
These are the rule, the exception and exception to the exception on
effectivity of laws.
Ang batas
ay tumitingin sa hinaharap, hindi sa nakaraan.
Gayunpaman, ang parusa ng bagong batas ay iiral kung ito ay pabor sa
taong nagkasala na hindi pusakal na kriminal.
We apply the exception rather than
the rule in this petition for review on certiorari
of the decision of the Court of Appeals (CA), affirming with modification that
of the Regional Trial Court (
On
After a briefing, the team conducted
the necessary surveillance on petitioner, checking his hideouts in
Petitioner was then brought to the
police station for questioning.[13]
A verification of the subject firearm
at the Firearms and Explosives Division at
Petitioner was
then charged with illegal possession of firearm and ammunition under Presidential
Decree (P.D.) No. 1866,[17]
as amended. The Information read:
That on or about the 10th day of July, 1996, in Quezon City, Philippines, the said accused without any authority of law, did then and there willfully, unlawfully and knowingly have in his/her possession and under his/her custody and control
One (1) cal. 38 “Charter Arms” revolver bearing Serial No. 52315 with five (5) live ammo.
without first having secured the necessary license/permit issued by the proper authorities.
CONTRARY TO LAW.
(Sgd.)
GLORIA VICTORIA C. YAP
With the
assistance of his counsel de parte,
Atty. Oscar Pagulayan, petitioner pleaded not guilty when arraigned on
Upon the
other hand, the defense version was supplied by the combined testimonies of
petitioner Sr. Insp. Jerry C. Valeroso,
Petitioner recounted that on
Petitioner was told by
According
to petitioner, the search done in the boarding house was illegal. The gun seized from him was duly licensed and
covered by necessary permits. He was,
however, unable to present the documentation relative to the firearm because it
was confiscated by the police.
Petitioner further lamented that when he was incarcerated, he was not
allowed to engage the services of a counsel.
Neither was he allowed to see or talk to his family.[31]
Petitioner contended that the police
had an axe to grind against him. While
still with the Narcotics Command, he turned down a request of Col. Romulo Sales
to white-wash a drug-related investigation involving friends of the said police
officer. Col. Sales was likewise subject
of a complaint filed with the Ombudsman by his wife. Col. Sales was later on appointed as the head
of the unit that conducted the search in his boarding house.[32]
Adrian
Yuson, an occupant of the room adjacent to where petitioner was arrested,
testified that on
Four (4)
policemen then entered the room.[40] He witnessed how they pointed a gun at
petitioner, who was clad only in his underwear.[41] He also witnessed how they forcibly brought
petitioner out of his room.[42] While a policeman remained near the faucet to
guard petitioner, three (3) others went back inside the room.[43] They began searching the whole place. They forcibly opened his locker,[44]
which yielded the subject firearm.[45]
On
WHEREFORE, the Court hereby finds the accused
guilty beyond reasonable doubt of Violation of Section 1 of Presidential Decree
No. 1866 as amended by Republic Act No. 8294 and hereby sentences him to suffer
the penalty of prision correccional in its maximum period or from 4
years, 2 months and 1 day as minimum to 6 years as maximum and to pay the fine
in the amount of Fifteen Thousand Pesos (P15,000.00).
The
gun subject of this case is hereby ordered confiscated in favor of the
government. Let the same be put in trust
in the hands of the Chief of the
SO
ORDERED.[46]
Petitioner moved to reconsider[47] but his motion was denied on
On
Verily,
the penalty imposed by the trial court upon the accused-appellant is modified
to 4 years and 2 months as minimum up to 6 years as maximum.
WHEREFORE, with the
foregoing MODIFICATION as to the penalty, the decision appealed from is
hereby AFFIRMED in all other respects.
SO ORDERED.[49]
His motion for reconsideration[50] having been denied through a Resolution
dated
Issues
Petitioner raises
the following issues for Our consideration:
I. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW IN AFFIRMING THE CONVICTION OF PETITIONER DESPITE THE ABSENCE OF PROOF BEYOND REASONABLE DOUBT.
II. THE HONORABLE COURT OF APPEALS COMMITTED
SERIOUS ERRORS OF
Our Ruling
In illegal possession of firearm and
ammunition, the prosecution has the burden of proving the twin elements of (1)
the existence of the subject firearm and ammunition, and (2) the fact that the
accused who possessed or owned the same does not have the corresponding license
for it.[53]
The prosecution was able to discharge
its burden.
The existence of the subject firearm
and its ammunition was established through the testimony of
As for petitioner’s lack of authority
to possess the firearm, Deriquito testified that a verification of the Charter Arms Caliber .38 bearing
Serial No. 52315 with the Firearms and Explosives Division at Camp Crame
revealed that the seized pistol was not issued to petitioner. It was registered in the name of a certain
Raul Palencia Salvatierra of Sampaloc,
The
Court on several occasions ruled that either the testimony of a
representative of, or a certification from, the Philippine National Police (PNP)
Firearms and Explosive Office attesting that a person is not a licensee of any
firearm would suffice to prove beyond reasonable doubt the second element of
possession of illegal firearms.[59] The prosecution more than complied when it
presented both.
The certification is outside the scope of the hearsay
rule.
The
general rule is that a witness can testify only to those facts which he knows
of his personal knowledge; that is, which are derived from his own perception.[60] Otherwise, the testimony is objectionable for
being hearsay.[61]
On this
score, the certification from the Firearms and Explosives Division is an
exception to the hearsay rule by virtue of Rule 130, Section 44 of the Rules of
Court which provides:
Sec. 44. Entries
in official records. – Entries
in official records made in the performance of his official duty by a public
officer of the
It may be true that the contents of said certification are only prima facie evidence of the facts stated there. However, the failure of petitioner to present controverting evidence makes the presumption unrebutted. Thus, the presumption stands.
Petitioner,
however, raises several points which he says entitles him to no less than an
acquittal.
The assessment of credibility of witnesses lies with
the trial court.
First, petitioner says that the seizure of
the subject firearm was invalid. The
search was conducted after his arrest and after he was taken out of the room he
was occupying.[62]
This contention deserves scant consideration.
Petitioner’s version of the manner and place of his arrest
goes into the factual findings made by the trial court and its calibration of
the credibility of witnesses. However,
as aptly put by Justice Ynares-Santiago in People v. Rivera:[63]
x x x the manner of assigning
values to declarations of witnesses on the witness stand is best and most
competently performed by the trial judge who had the unmatched opportunity to
observe the witnesses and assess their credibility by the various indicia available
but not reflected on record. The
demeanor of the person on the stand can draw the line between fact and fancy or
evince if the witness is telling the truth or lying through his teeth. We have consistently ruled that when the
question arises as to which of the conflicting versions of the prosecution and
the defense is worthy of belief, the assessment of the trial courts are
generally viewed as correct and entitled to great weight. Furthermore, in an appeal, where
the culpability or innocence of the accused depends on the issue of credibility
of witnesses and the veracity of their testimonies, findings of the trial court
are given the highest degree of respect if not finality.[64] (Underscoring supplied)
The trial court found the prosecution
version worthy of credence and belief. We
find no compelling reason not to accept its observation on this score.
Worth noting is the fact that
petitioner is a ranking police officer who not only claims to be highly
decorated,[65] but
have effected a number of successful arrests[66]
as well. Common sense would dictate that
he must necessarily be authorized to carry a gun. We thus agree with the Office of the
Solicitor General that framing up petitioner would have been a very risky
proposition. Had the arresting officers
really intended to cause the damnation of petitioner by framing him up, they
could have easily “planted” a more incriminating evidence rather than a
gun. That would have made their
nefarious scheme easier, assuming that there indeed was one.
The pieces of evidence show that petitioner is not
legally authorized to possess the subject firearm and its five (5) ammunition.
Second, petitioner insists that he is
legally authorized to possess the subject firearm and its ammunition on the
basis of the Memorandum Receipt issued to him by the
Although petitioner is correct in his
submission that public officers like policemen are accorded presumption of
regularity in the performance of their official duties,[68] it
is only a presumption; it may be overthrown by evidence to the contrary. The prosecution was able to rebut the presumption
when it proved that the issuance to petitioner of the Memorandum Receipt was
anything but regular.
Failure to offer an unlicensed firearm as evidence is not
fatal provided there is competent testimony as to its existence.
Third, petitioner claims that the subject
firearm and ammunition should have been excluded as evidence because they were
not formally offered by the prosecution[71]
in violation of Section 34, Rule 132 of the Rules of Court.[72]
We note that petitioner contradicted
himself when he argued for the validity of the Memorandum Receipt and, at the
same time, for the exclusion in evidence of the subject firearm and its
ammunition. Petitioner’s act may result
to an absurd situation where the Memorandum Receipt is declared valid, while
the subject firearm and its ammunition which are supposedly covered by the
Memorandum Receipt are excluded as evidence.
That would have made the Memorandum Receipt useless.
In any case, petitioner’s contention
has no leg to stand on.
Contrary to petitioner’s claim, the
subject firearm[73] and its
five (5) live ammunition[74]
were offered in evidence by the prosecution.[75] Even assuming arguendo that they were
not offered, petitioner’s stance must still fail. The existence of an unlicensed firearm may be
established by testimony, even without its presentation at trial. In People v. Orehuela,[76]
the non-presentation of the pistol did not prevent the conviction of the
accused.
The doctrine was affirmed in the
recent case of People v. Malinao.[77]
As previously stated, the existence
of the subject firearm and its five (5) live ammunition were established
through the testimony of
We hasten to add that there may also
be conviction where an unlicensed firearm is presented during trial but through
inadvertence, negligence, or fortuitous event (for example, if it is lost), it is
not offered in evidence, as long as
there is competent testimony as to its existence.
Petitioner was charged with the crime
of illegal possession of firearms and ammunition under the first paragraph of
Section 1 of P.D. No. 1866, as amended.
It provides that “[t]he penalty of reclusion temporal in its
maximum period to reclusion perpetua shall be imposed upon any person
who shall unlawfully manufacture, deal in, acquire, dispose, or possess any
firearm, part of firearm, ammunition or machinery, tool or instrument used or
intended to be used in the manufacture of any firearm or ammunition.”
P.D. No. 1866, as amended, was the
governing law at the time petitioner committed the offense on
SECTION
1. Unlawful Manufacture, Sale,
Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments
Used or Intended to be Used in the Manufacture of Firearms or Ammunition. –
The penalty of prision correccional in its maximum period and
a fine of not less than Fifteen Thousand Pesos (P15,000) shall be
imposed upon any person who shall unlawfully manufacture, deal in, acquire,
dispose, or possess any low-powered firearm, such as rimfire handgun, .380
or .32 and other firearm of similar firepower, part of firearm, ammunition,
or machinery, tool or instrument used or intended to be used in the manufacture
of any firearm or ammunition: Provided, That no other crime was
committed. (Underscoring supplied)
As a general rule, penal laws should
not have retroactive application, lest they acquire the character of an ex
post facto law.[82] An exception to this rule, however, is when
the law is advantageous to the accused. According
to Mr. Chief Justice Araullo, this is “not as a right” of the offender, “but founded
on the very principles on which the right of the State to punish and the
commination of the penalty are based, and regards it not as an exception based
on political considerations, but as a rule founded on principles of strict
justice.”[83]
Although an additional fine of P15,000.00
is imposed by R.A. No. 8294, the same is still advantageous to the accused,
considering that the imprisonment is lowered to prision correccional
in its maximum period[84]
from reclusion temporal in its maximum period to reclusion perpetua[85]
under P.D. No. 1866.
Applying the Indeterminate Sentence
Law, prision correccional maximum which ranges from four (4) years, two
(2) months and one (1) day to six (6) years, is the prescribed penalty and will
form the maximum term of the indeterminate sentence. The minimum term shall be one degree lower,
which is prision correccional in its medium period (two [2] years, four
[4] months and one [1] day to four [4] years and two [2] months).[86] Hence, the penalty imposed by the CA is
correct. The penalty of four (4) years
and two (2) months of prision
correccional medium, as minimum term, to six (6) years of prision correccional maximum, as maximum
term, is in consonance with the Court’s ruling in Gonzales v. Court of Appeals[87]
and Barredo v. Vinarao.[88]
As to the subject firearm and its
five (5) live ammunition, their proper disposition should be made under Article
45 of the Revised Penal Code[89]
which provides, among others, that the proceeds and instruments or tools of the crime shall
be confiscated and forfeited in favor of the government.
WHEREFORE, the Decision of the Court of
Appeals dated
SO ORDERED.
RUBEN T. REYES
Associate Justice
WE CONCUR:
CONSUELO
YNARES-SANTIAGO
Associate Justice
Chairperson
MA. ALICIA AUSTRIA-MARTINEZ MINITA V.
CHICO-NAZARIO
Associate Justice
Associate Justice
ANTONIO EDUARDO
B. NACHURA
Associate Justice
I
attest 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.
CONSUELO
YNARES-SANTIAGO
Associate Justice
Chairperson
Pursuant to Section 13, Article VIII of the
Constitution and the Division Chairperson’s Attestation, 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.
REYNATO S. PUNO
Chief Justice
[1] New Civil Code, Art. 4.
1-a Revised Penal Code, Art. 22 provides: Retroactive effect of penal laws. – Penal laws shall have a retroactive effect in so far as they favor the person guilty of a 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.
[2] Exhibit “D.”
[3]
[4] Exhibit “B.”
[5]
[6]
[7]
[8]
[9]
[10]
[11] Exhibit
“E.”
[12]
Exhibits “E-1” to “E-5.”
[13]
[14]
[15] Exhibit
“C.”
PNPFED 12
Jul[y] 1996
C E R
T I F I C A T I O
N
TO WHOM IT
This is to certify that [the] Revolver, Charter Arms,
Cal. 38 with serial number 52315 is registered to RAUL PALENCIA SALVATIERA of
Sampaloc, Manila, acquired thru transfer f[ro]m Wilburn Irwin Lucasan per
index card d[a]t[e]d 10 December 1990.
This certification is issued for whatever legal
purpose it may serve.
FOR THE CHIEF,
EDWIN C[.] ROQUE
(Sgd.)
P/Sr. Inspector
Chief, Records Br[.]
[16]
[17]
Entitled “An Act Codifying the Laws on Illegal/Unlawful Possession,
Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunition or
Explosives or Instruments Used in the Manufacture of Firearms, Ammunition or
Explosives, and Imposing Stiffer Penalties for Certain Violations Thereof, and
for Relevant Purposes.” This law was
issued by President Ferdinand E. Marcos on
[18] Rollo, p. 35.
[19]
[20]
[21]
[22]
[23]
[24]
[25]
[26]
[27]
[28]
[29]
[30]
[31]
[32]
[33] Exhibit
“1.”
[34] Exhibit
“1-A.”
[35]
[36]
[37]
[38]
[39]
[40]
[41]
[42]
[43]
[44]
[45]
[46] Rollo,
p. 44.
[47] Exhibit
“E.”
[48] Exhibit
“F.”
[49] Rollo,
p. 31.
[50] Exhibit
“I.”
[51] Exhibit
“B.”
[52] Rollo,
p. 125.
[53] Padilla v. Court of Appeals, G.R. No.
121917,
[54]
[55]
[56]
[57]
[58]
[59] People v. Taan, G.R. No. 169432,
[60] Rules of Court, Rule 130, Sec. 36.
[61] The United States Federal Rule of Evidence defines hearsay
as “a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Cleary, E.W., McCormick on
Evidence (1984), 3rd ed., p. 729, citing Federal Rule of Evidence 801(c). Accordingly, hearsay evidence is objected to due
to the following reasons:
Oath. Among the earliest of the criticisms of
hearsay, and one often repeated in judicial opinions down to the present, is
the objection that the out-of-court declarant who made the hearsay statement
commonly speaks or writes without the solemnity of the oath administered to
witnesses in a court of law. The
oath may be important in two aspects. As
a ceremonial and religious symbol it may induce in the witness a feeling of
special obligation to speak the truth, and also it may impress upon the witness
the danger of criminal punishment for perjury, to which the judicial oath or an
equivalent solemn affirmation would be a prerequisite condition. x x x
Personal presence at trial. Another objection early asserted and repeated of late
is the want of opportunity, in respect to the out-of-court declarant, for
observation of his demeanor, with the light that this may shed on his
credibility, that would be afforded if he were a witness on the stand.
The
solemnity of the occasion and possibility of public disgrace can scarcely fail
to impress the witness, and falsehood no doubt becomes more difficult if the
person against whom directed is present.
Moreover,
personal presence eliminates the danger that in the oral reporting of an
out-of-court statement that the witness reporting the statement may do so
inaccurately. It seems probable that the
reporting of words spoken is subject to special dangers of inaccuracy beyond
the fallibility common to all reproduction from memory of matters of
observation, and this seems a substantial danger in the admission of
hearsay. x x x
Cross-examination. It would be generally agreed today that
noncompliance with the third condition is the main justification for the
exclusion of hearsay. This is the lack
of any opportunity for the adversary to cross examine the absent declarant
whose out-of-court statement is reported by the witness. x x x
In perhaps his most famous remark, Wigmore described cross-examination
as “beyond any doubt the greatest legal engine ever invented for the discovery
of truth.” (Underscoring supplied) (
[62] Rollo, pp. 8, 136.
[63]
433 Phil. 343 (2002), citing People v. Sanchez, G.R. Nos. 121039-45,
[64] People
v. Rivera, id. at 352.
[65] Rollo, p. 61.
[66]
[67] Rollo, pp. 11-12, 138.
[68] Gutang
v. People, 390 Phil. 805,
817-818 (2000), citing People v. William, G.R. No. 93712,
[69]
[70]
FISCAL: I am asking you why your office likewise
issued [a] Memo Receipt if he [i.e., Colonel Angelito Moreno] normally issue (sic) a firearm for [an] officer of the
A. Because
our office has also authorized us to issue.
Q: And who
authorized your office?
A: It is our
Commanding Officer, Sir.
Q: And who
authorized the Commanding Officer?
INTERPRETER:
Witness
cannot answer.
Q: Where
does the Commanding Officer derive his authority?
A: What I
know is that the Commanding Officer is authorized to [issue] firearm that will
be issued to a
x x x x
Q: As such,
do you keep inventory of such supplies?
A: Yes, Sir.
Q: Do you
have the inventory of this particular gun, the original?
A: Yes, Sir.
Q: Do you
have that inventory with you, that inventory of such gun, the Memo Receipt?
A: That
firearm was not in my custody.
Q: But you
said a while ago it is with you, which is which, do you have or do you not have
the listing of such inventory?
A: None, Sir.
x x x x
FISCAL: Mr. Witness, other than this case, were there
any instances where you issued Memo Receipt as verbally directed by your
alleged Commanding Officer Moreno?
A: Yes, Sir,
I’m only a RSO since November 1993.
Q: Precisely,
1991 to 1993, for a period wherein you claimed you hold an office of RSO, has (sic) this the only time you issued?
A: Many time[s],
Sir.
COURT: Let’s clarify this. The Court understands to (sic) your previous answer that this is
the first time that you have done this procedure of issuing guns to an
officer. Are you changing that this is
the first time and not many times?
A: That is
the only first (sic) time, as
instructed by the Commanding Officer, Your Honor. (Underscoring supplied)
[71] Rollo, pp. 11, 137-138.
[72] Sec. 34. Offer
of evidence. – The court
shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered
must be specified.
[73] Exhibit
“E.”
[74]
Exhibits “E-1” to “E-5.”
[75]
[76] G.R.
Nos. 108780-81,
As Mr.
Justice Feliciano held for the Court:
x x x Upon the
other hand, we note also that the allegedly unlicensed murder weapon was not
presented in evidence by the prosecution.
What the prosecution did present to show absence of a license or permit
to possess the firearm used to kill Teoberto, was a certification issued by the
Bohol Regional Headquarters of the Integrated National Police, dated 20
December 1989, x x x:
x x x x
We consider that the certification was adequate to
show that the firearm used by Modesta Orehuela in killing Teoberto Cañizares
was a firearm which Orehuela was not licensed to possess and to carry outside
his residence on the night that Teoberto Cañizares was shot to death. That that firearm was a .38 caliber pistol
was shown by the testimony and report of NBI Ballistician Bonifacio Ayag. When the above circumstances are
taken together with the testimony of the eye-witness that Modesto Orehuela was
in fact in possession of a firearm and used the same to kill Teoberto
Cañizares, we believe that accused Orehuela was properly found guilty of
aggravated or qualified illegal possession of firearm and ammunition.
(Underscoring supplied)
[77]
G.R. No. 128148,
[78]
[79]
[80]
[81] People
v. Lazaro, supra note 59.
[82] Mejia v. Pamaran, G.R. Nos.
L-56741-42,
1.
Makes criminal an act done before the passage of the law and which was innocent
when done, and punishes such an act;
2.
Aggravates a crime, or makes it greater than it was, when committed;
3.
Changes the punishment and inflicts a greater punishment than the law annexed
to the crime when committed;
4.
Alters the legal rules of evidence, and authorizes conviction upon less or
different testimony than the law required at the time of the commission of the
offense;
5.
Assuming to regulate civil rights and remedies only, in effect imposes penalty
or deprivation of a right for something which when done was lawful; and
6.
Deprives a person accused of a crime of some lawful protection to which he has
become entitled, such as the protection of a former conviction or acquittal, or
a proclamation of amnesty.
[83] People
v. Moran, 44 Phil. 387, 408 (1923), citing Fiore, Irretroactividad e Interpretacion de las Leyes.
[84]
Reyes, L.B., The Revised Penal Code, Book II, 2001 ed., p. 1021. PRISION CORRECCIONAL IN ITS MAXIMUM
PERIOD. – 4 years, 2 months and 1 day to 6 years
Minimum : 4 years, 2
months and 1 day to 4 years, 9 months and 10 days
Medium : 4 years, 9
months and 11 days to 5 years, 4 months and 20 days
Maximum : 5 years, 4
months and 21 days to 6 years
[85]
Minimum : 17 years, 4
months and 1 day to 18 years and 8 months
Medium : 18 years, 8
months and 1 day to 20 years
Maximum : Reclusion
perpetua
[86]
Minimum : 2 years, 4
months and 1 day to 2 years, 11 months and 10 days
Medium : 2 years, 11
months and 11 days to 3 years, 6 months and 20 days
Maximum : 3
years, 6 months 21 days to 4 years and 2 months.
[87] 343 Phil. 297 (1997).
[88] G.R.
No. 168728,
[89] Art. 45. Confiscation
and forfeiture of the proceeds or instruments of the crime. – Every penalty imposed for the
commission of a felony shall carry with it the forfeiture of the proceeds of
the crime and the instruments or tools with which it was committed.
Such proceeds and instruments or tools
shall be confiscated and forfeited in favor of the Government, unless they
be the property of a third person not liable for the offense, but those
articles which are not subject of lawful commerce shall be destroyed. (Underscoring supplied)