Bangcola y Dimalaang v. People

THIRD DIVISION

[G.R. No. 230434. August 9, 2017.]

JALAL BANGCOLA y DIMALAANG ALYAS AKMAD, petitioner,vs. PEOPLE OF THE PHILIPPINES, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Third Division, issued a Resolution dated August 9, 2017, which reads as follows:

G.R. No. 230434 (JALAL BANGCOLA y DIMALAANG ALYAS AKMAD, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.) — The Office of the City Prosecutor of Manila charged the petitioner in the Regional Trial Court (RTC) in Manila with illegal possession of firearms in violation of Section 28 (g) of Republic Act No. 10591 (Comprehensive Firearms and Ammunition Regulation Act) under the information alleging as follows:

That on or about March 18, 2014, in the City of Manila, Philippines, the said accused, did then and there wilfully, unlawfully and knowingly have in his possession and under his custody and control one (1) .45 caliber pistol with one (1) magazine loaded with seven (7) live ammunitions, without first having secured the necessary license or permit therefor from the proper authorities.

Contrary to law. 1

The evidence of the Prosecution follows.

At around 8:30 in the morning of March 18, 2014, a confidential informant reported to the District Anti-Illegal Drugs Special Operation Task Group (DAID-SOTG) of the Manila Police District (MPD), the peddling of shabu by the petitioner along Palanca Street near Isetann-Carriedo in Quiapo, Manila. PO3 Rizaldy Liangco, acting upon the instruction of his superior officer, conducted tactical interrogation of the informant. Thereafter, the DAID-SOTG set up a drug buy-bust operation after the informant had pinpointed the location of the petitioner. For that purpose, the operatives of the DAID-SOTG positioned themselves in the area in question, waiting for the transaction to push through. After the petitioner had talked with the poseur-buyer and the transaction had been consummated with the giving of the buy-bust money, the poseur-buyer flicked his cigarette to the pavement as the pre-arranged signal. However, the petitioner noticed the movement of the approaching back-up officers and tried to escape. Fortunately, PO2 Boco was able to hold on to the petitioner with the aid of PO3 Pastor and PO3 Liangco. At that point, PO2 Pastor noticed the conspicuous bulge in the petitioner's waist, and ordered him to fall to the ground. Once the latter complied, PO2 Pastor frisked him and in the process recovered from the right side of his waist a firearm — specifically, a .45 caliber pistol with seven rounds of ammunition. The officers then apprised him of his constitutional rights, and brought him to their office. cAaDHT

The officers marked all items recovered from the petitioner, including the buy-bust money, shabu, firearm and its ammunitions. In due time, they secured the certification from the Firearms Explosives Office in Camp Crame, Quezon City to the effect that the petitioner was not a registered firearm holder. 2

In his defense, the petitioner, who peddled slippers in Plaza Miranda, asserted that he had gone with Myra Amerol, his wife-to-be, and her sister Anna to Isetann Carriedo and SM Department Store around 3:30 in the afternoon of March 18, 2014 to buy things for their coming wedding. As they exited from the mall, the policemen suddenly arrested him. Not being aware of the cause of the arrest, he resisted and tried to escape, but the officers overtook and mauled him. They later on brought the three of them to the Police Headquarters on United Nations Avenue and detained them there. The policemen later on released Myra and Anna after their parents, Macapagal and Medalla Amerol, had paid P50,000.00 in exchange for their freedom. The petitioner was not released because he had no money. At the trial, Myra denied that the petitioner had owned or possessed the gun subject of the charge, and insisted that she had not seen him holding the gun at the time of the arrest. 3

As stated, the RTC found and pronounced the petitioner guilty as charged in its judgment rendered on September 28, 2015, 4 disposing:

WHEREFORE, the Court finds the accused, JALAL BANGCOLA y DIMALAANG @ AKMAD, GUILTY beyond reasonable doubt of Violation of Section 28 (a) in relation to Section 28 (e-1) of Republic Act No. 10591 and hereby sentences him to suffer the penalty of imprisonment ranging from ten (10) years, eight (8) months and one (1) day of prision mayor as minimum to eleven (11) years and four (4) months of prision mayor as maximum.

No cost.

SO ORDERED. 5

On appeal, the petitioner branded his arrest as illegal because the Prosecution did not establish the conduct of the buy-bust operation. He argued that because his arrest for illegal sale of dangerous drugs was illegal, the product of the search conducted on him was inadmissible against him.

On November 28, 2016, the CA affirmed the petitioner's conviction, and observed that his violation of Republic Act No. 10591 was an offense separate and distinct from his violation of Republic Act No. 9165. 6

In this appeal, the petitioner continues to insist on his innocence, positing that the CA erred in affirming his conviction.

Ruling of the Court

The appeal lacks merit.

The findings of fact of the RTC as the trial court are generally accorded the highest degree of respect, especially when affirmed by the CA on appeal. This is because the trial court was in the best position to ascertain the facts and determine the credibility of the evidence presented during trial. Such findings will not be disturbed in this appeal because the Court is now thereby bound and concluded. 7 HCaDIS

We declare that the Prosecution duly established the circumstances that led to the arrest of the petitioner. It is quite notable that he did not deny that the firearm had been seized from his possession. His defense, which turned on the illegality of his arrest for selling drugs during the buy-bust operation, could not save him because he had been arrested in the illegal possession of the firearm. Indeed, he had no license to possess based on the certification issued by the Firearms and Explosive Office of the Philippine National Police.

The petitioner's insistence that the firearm was inadmissible as evidence against him because it had been seized on the occasion of the illegal arrest for drug selling was not persuasive. We agree with the observation of the CA that his violation of Republic Act No. 10591 was different and distinct from the violation of Republic Act No. 9165, and should be accordingly considered in a different light.

Nonetheless, considering that the firearm of the petitioner was loaded with live ammunition, the Court modifies the indeterminate penalty. The RTC and the CA imposed the indeterminate sentence of 10 years, eight months and one day to 11 years and four months of prision mayor in its maximum period as the maximum. The lower courts were incorrect. Although Section 28 (a) 8 of Republic Act No. 10591 imposes the penalty of prision mayor in its medium period (i.e., eight years and one day to 10 years) for the possession of a Class A firearm (the type of the .45 caliber firearm seized from him), Section 28 (e) (1) 9 of Republic Act No. 10591 prescribes a penalty one degree higher than that provided in Section 28 (a) if the accused illegally possessed the firearm loaded with live ammunition or inserted with a loaded magazine, which was the crime precisely alleged in the information and sufficiently established by the record. The penalty one degree higher is prision mayor in its maximum period (i.e., 10 years and one day to 12 years), to be imposed in the medium period (i.e., 10 years, eight months and one day to 11 years and four months) in view of the absence of any modifying circumstances. Conformably with the instruction issued in People v. Simon10 on the application of penalties under the Revised Penal Code to crimes punished by special laws, the proper indeterminate sentence is eight years and one day of prision mayor in its medium period, as the minimum, to 10 years, eight months and one day of prision mayor in its maximum period, as the maximum.

WHEREFORE, the Court AFFIRMS the decision promulgated on November 28, 2016, subject to the MODIFICATION that petitioner JALAL D. BANGCOLA shall suffer the indeterminate sentence of eight years and one day of prision mayor in its medium period, as the minimum, to 10 years, eight months and one day of prision mayor in its maximum period, as the maximum; and ORDERS him to pay the costs of suit.

SO ORDERED."

Very truly yours,

(SGD.) WILFREDO V. LAPITANDivision Clerk of Court

 

Footnotes

1.Rollo, p. 48.

2.Id. at 49-50.

3.Id. at 50-51.

4.Id. at 48-54; penned by Presiding Judge Marlina M. Manuel.

5.Id. at 54.

6.Id. at 70-78; penned by Associate Justice Romeo F. Barza, with the concurrence of Associate Justice Andres B. Reyes, Jr. (now a Member of the Court) and Associate Justice Agnes Reyes-Carpio (retired).

7.Abadiano v. Martir, G.R. No. 156310, July 31, 2008, 560 SCRA 676, 687.

8. Section 28.Unlawful Acquisition, or Possession of Firearms and Ammunition. — The unlawful acquisition, possession of firearms and ammunition shall be panelized as follows:

(a) The penalty of prision mayor in its medium period shall be imposed upon any person who shall unlawfully acquire or possess a small arm;

xxx xxx xxx

9. Section 28.Unlawful Acquisition, or Possession of Firearms and Ammunition. — The unlawful acquisition, possession of firearms and ammunition shall be panelized as follows:

xxx xxx xxx

(e) The penalty of one (1) degree higher than that provided in paragraphs (a) to (c) in this section shall be imposed upon any person who shall unlawfully possess any firearm under any or combination of the following conditions:

(1) Loaded with ammunition or inserted with a loaded magazine;

xxx xxx xxx

10. G.R. No. 93028, July 29, 1994, 234 SCRA 555.