THIRD DIVISION
[G.R. No. 250859. June 16, 2021.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.JIMMY ALARCON y RONGCAL, accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedJune 16, 2021, which reads as follows: HTcADC
"G.R. No. 250859 (People of the Philippines v. Jimmy Alarcon y Rongcal). — This is an Appeal 1 assailing the Decision 2 dated July 29, 2019 of the Court of Appeals (CA) in CA-G.R. CR HC No. 11461 which affirmed the Decision 3 dated May 2, 2018 of Branch 52, Regional Trial Court (RTC), Guagua, Pampanga in Criminal Case Nos. G-18-12837 and G-18-12838 finding Jimmy Alarcon y Rongcal (accused-appellant) guilty beyond reasonable doubt of two counts of violation of Section 11, 4 Article II of Republic Act (RA) No. 9165 5 otherwise known as the "Comprehensive Dangerous Drugs Act of 2002," as amended.
The Antecedents
The instant case stemmed from three separate Informations docketed as Criminal Case Nos. G-18-12837, G-18-12838, and G-18-12839 filed before the RTC charging accused-appellant and his co-accused Rodolfo V. Alfonso (Alfonso) as follows: in Criminal Case No. G-18-12837, accused-appellant and his co-accused Alfonso are charged with violation of Section 5, Article II of Republic Act (RA) No. 9165; in Criminal Case No. G-18-12838, accused-appellant is charged with violation of Section 11, Article II of the same Act; and in Criminal Case No. G-18-12839 Alfonso is charged with violation of Section 11, Article II of the same Act. The respective accusatory portions of the Informations state:
Criminal Case No. G-18-12837
That on or about the 26th day of February 2018, in the [M]unicipality of Sasmuan, Province of Pampanga, Philippines and within the jurisdiction of this Honorable Court, the above named accused, not being authorized to sell any dangerous drug, conspiring, confederating and mutually helping each other, did then and there willfully, unlawfully and knowingly, sell to a poseur-buyer one (1) small heat-sealed transparent plastic sachet containing methamphetamine hydrochloride, commonly known as shabu, weighing (A1) 0.057 of a gram and marked as "BB-RCP 2/26/18" more or less, a dangerous drug.
CONTRARY TO LAW. 6
Criminal Case No. G-18-12838
That on or about the 26th day of February 2018, in the [M]unicipality of Sasmuan, Province of Pampanga, Philippines and within the jurisdiction of this Honorable Court, the above named accused, without being authorized by law to [possess], did then and there willfully and unlawfully have in his possession and under his control two (2) small heat-sealed transparent plastic sachets of methamphetamine hydrochloride, with corresponding weight and markings (A2) 0.064 "CJ-RCP1 2/26/18" and (A3) 0.058 "CJ-RCP2 2/26/18", of a gram more or less, a dangerous drug.
CONTRARY TO LAW. 7
Criminal Case No. G-18-12839
That on or about the 26th day of February 2018, in the [M]unicipality of Sasmuan, [P]rovince of Pampanga, Philippines and within the jurisdiction of this Honorable Court, the above named accused (Rodolfo), without being authorized by law to possess, did then and there willfully and unlawfully have in his possession and under his control three (3) small heat-sealed transparent plastic sachets of methamphetamine hydrochloride, with corresponding weight and markings (A4) 0.037 "CR-JFR1 2/26/18," (A5) 0.044 "CR-JFR2 2/26/18" and (A6) 0.024 "CR-JFR3 2/26/18," of a gram more or less, a dangerous drug.
CONTRARY TO LAW. 8
At the arraignment, accused-appellant and Alfonso, with the assistance of their counsel de officio, entered their respective pleas of not guilty to the offenses charged. 9
Joint trial ensued.
The prosecution established that at around 2:30 p.m. of February 26, 2018, acting on the information received from a confidential informant, the law enforcers of the Drug Enforcement Unit of Sasmuan Police Station, Sasmuan, Pampanga conducted a buy-bust operation against accused-appellant and Alfonso along the municipal road of Brgy. Sto. Tomas, Sasmuan. 10
The team immediately went to the target area after the briefing. Upon arriving at the area, PO2 Renato C. Paredes (PO2 Paredes) and the confidential informant met with accused-appellant and Alfonso. After the confidential informant introduced accused-appellant to PO2 Paredes, accused-appellant asked PO2 Paredes how much shabu he was going to buy. Instead of replying, PO2 Paredes handed a P500.00 bill to accused-appellant. With the instruction of accused-appellant, Alfonso handed three plastic sachets to PO2 Paredes. Thereafter, accused-appellant took from his pocket one plastic sachet and gave it to PO2 Paredes. In no time, PO2 Paredes executed the pre-arranged signal. He then arrested accused-appellant, frisked him, and recovered from his person two more plastic sachets. On the other hand, PO2 Jorge F. Rivera (PO2 Rivera), who rushed to the transaction scene, likewise arrested Alfonso and recovered from him three plastic sachets containing white crystalline substance. A total of nine plastic sachets containing white crystalline substance were recovered during the buy-bust operation. 11
The police officers brought accused-appellant and Alfonso to the Sasmuan Police Station. There, they marked and inventoried the seized items in the presence of a media representative and an elected official. Subsequently, they brought the seized items to the crime laboratory where, after examination, the contents thereof tested positive for methamphetamine hydrochloride, or shabu. 12
In defense, accused-appellant and Alfonso denied the accusations against them. Accused-appellant asserted that while he was at the market at around 9:00 a.m., of February 26, 2018, two persons grabbed him, boarded him in a car, and brought him to Sasmuan Police Station. When the police officers frisked him inside the cell at the police station, they found no contraband in his person. Thereafter, the police officers brought him out of the detention cell and led him to a table where he saw, on top of the table, plastic sachets containing white substance and a P500.00 bill. Later, they forcibly brought accused-appellant and Alfonso to Camp Olivas for drug testing. 13
For his part, Alfonso asserted that at the time of the incident, he was in Guagua, Pampanga to negotiate the sale of a backhoe to a certain buyer. While standing in front of the house of the buyer, two male persons forcibly grabbed and boarded him inside a car. The car proceeded to the police station. It was only at the police station that he saw accused-appellant. 14 Thereafter, the police officers detained them and filed criminal charges against them for illegal sale and illegal possession of drugs. 15
The RTC Ruling
In the Decision 16 dated May 2, 2018, the RTC ruled as follows:
In Criminal Case No. G-18-12837 wherein accused-appellant and Alfonso are charged with violation of Section 5, Article II of RA 9165, the RTC convicted them only for Illegal Possession of Dangerous Drugs 17 and sentenced each of them to suffer the penalty of imprisonment of twelve (12) years and one (1) day to twenty (20) years and pay a fine of P300,000.00; 18
In Criminal Case No. G-18-12838 for Illegal Possession of Dangerous Drugs, the RTC convicted accused-appellant as charged and sentenced him to suffer the penalty of imprisonment of twelve (12) years and one (1) day to twenty (20) years and one (1) day and ordered him to pay a fine of P300,000.00; and
In Criminal Case No. G-18-12839 for Illegal Possession of Dangerous Drugs, the RTC convicted Alfonso as charged and sentenced him to suffer the penalty of imprisonment of twelve (12) years and one (1) day to twenty (20) years and pay a fine of P300,000.00.
In the Decision, 19 the RTC explained that in Criminal Case No. G-18-12837, accused-appellant and Alfonso cannot be convicted of illegal sale of dangerous drugs under Section 5, Article II of RA 9165 as the prosecution failed to substantiate and prove that the plastic sachets of shabu mentioned in the Information in Criminal Case No. G-18-12837 and identified in court are the exact plastic sachets of shabu accused-appellant and Alfonso sold to PO2 Paredes during the buy-bust operation. The trial court stressed that PO2 Paredes admitted in his testimony that after arresting accused-appellant, he kept in his left hand the plastic sachets of shabu he bought from accused-appellant and Alfonso and the two (2) plastic sachets of shabu confiscated from accused-appellant and Alfonso. 20 Thus, according to the RTC, it is possible that the seized items subject of the sale/transaction in Criminal Case No. G-18-12837 were switched or mixed up with the other two (2) sachets of shabu found in possession of accused-appellant and Alfonso. 21
In the meantime, in a Letter 22 dated May 21, 2018, the Provincial Warden of Pampanga informed the RTC of the death of Alfonso.
Thus, only accused-appellant filed an Appeal 23 to the CA.
The CA Ruling
In the assailed Decision, 24 the CA affirmed the RTC Decision 25 convicting accused-appellant in Criminal Case No. G-18-12837 for Illegal Possession of Dangerous Drugs and in Criminal Case No. G-18-12838 also for Illegal Possession of Dangerous Drugs.
Hence, the appeal before the Court.
The Issue
Whether the CA erred in affirming the RTC's conviction of accused-appellant in Criminal Case Nos. G-18-12837 and G-18-12838, both for Illegal Possession of Dangerous Drugs.
Our Ruling
The appeal fails to persuade the Court.
At the outset, it is worthy to note that in Criminal Case No. G-18-12837, accused-appellant and Alfonso were charged with Illegal Sale of Dangerous Drugs punished under Section 5, Article II of RA 9165; but the RTC convicted them only of violating Section 11 of the same Act. It ratiocinated that possession is a necessary element in a prosecution for illegal sale of prohibited drugs. 26 Thus in Criminal Case No. G-18-12837, it convicted accused-appellant and Alfonso not of illegal sale of dangerous drugs under Section 5, Article II of RA 9165, but only of illegal possession of dangerous drugs because illegal possession is an element of and is necessarily included in the offense of illegal sale of prohibited drugs. 27
In order to resolve the main issue, the Court must examine whether the prosecution established all the elements of Illegal Possession of Dangerous Drugs punished under Section 11, Article II of RA 9165; and whether or not the arresting police officers had duly preserved the integrity and evidentiary value of the confiscated sachets containing shabu.
After a judicious examination of the records of the case, the Court finds no justification to overturn the findings of the trial court, as affirmed by the CA, which are adequately supported by the evidence on record.
In every prosecution of Illegal Possession of Dangerous Drugs, the following elements must be established: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the drug. 28
Here, the prosecution successfully proved the existence of all the essential elements of the illegal possession of shabu.
On the day of the buy-bust operation on February 26, 2018, accused-appellant was the one who instructed Alfonso to hand over three plastic sachets of shabu to PO2 Paredes. Thereafter, he took from his pocket one plastic sachet and gave it to PO2 Paredes. After the selling of the plastic sachets of shabu, PO2 Paredes arrested accused-appellant, frisked him, and confiscated from his possession two more sachets. In the court proceedings, PO2 Paredes positively identified accused-appellant as the person who took out from his pocket one sachet containing shabu and sold it to him; and thereafter in possession of two more sachets containing shabu after the arrest.
Records reveal that PO2 Paredes admitted that he merely held in his left hand all the confiscated plastic sachets of shabu — the plastic sachets of shabu subject of the illegal sale and the plastic sachets of shabu subject of the charge for illegal possession; and that he held them together from the place of arrest until they reached the police station. Obviously, the plastic sachet of shabu subject of the illegal sale cannot anymore be determined or identified among the handful of plastic sachets subject of illegal possession of shabu. Therefore, the RTC is correct in ruling that there is no certainty that the plastic sachets of shabu sold to PO2 Paredes are the same plastic sachets of shabu described in Criminal Case No. G-18-12837 and identified during trial. Thus, accused-appellant and Alfonso cannot be convicted of illegal sale of dangerous drugs but only of illegal possession of dangerous drugs. Jurisprudence teaches that in a botched drug sale, an accused can be found guilty of illegal possession of shabu, subject of the botched drug sale. 29 The reason for this is that illegal possession is an element of and is necessarily included in the illegal sale of prohibited drugs. 30
In People v. Hong Yen E and Tsien Tsien Chua, 31 the Court convicted the appellants for illegal possession of prohibited drugs as illegal sale of drugs was not proven; thus:
Appellant's exoneration from the sale of prohibited drugs does not spell freedom from all criminal liability as they may be convicted for illegal possession of prohibited drugs under Section 8 of R.A. 6425. This Court has consistently ruled that possession is necessarily included in the sale of illegal drugs.
Given that illegal possession is an element of and is necessarily included in the illegal sale of prohibited drugs, the Court will now determine appellants culpability under Section 8. 32
Indeed, We have had several occasions in the past wherein an accused, charged with the illegal sale of dangerous drugs, was convicted of illegal possession thereof. 33 In those cases, this Court upheld the prevailing doctrine that the illegal sale of dangerous drugs absorbs the illegal possession thereof. 34 Illegal possession of dangerous drugs is therefore an element of and is necessarily included in illegal sale. 35 In the instant case, there is no doubt that in Criminal Case No. G-18-12837, the RTC correctly convicted accused-appellant and Alfonso of illegal possession of dangerous drugs instead of illegal sale under Section 5, Article II of RA 9165.
For a successful prosecution of the offense of Illegal Possession of Dangerous Drugs, it is essential that the identity of the prohibited drugs be established beyond reasonable doubt, considering that the prohibited drugs form an integral part of the corpus delicti of the offense. 36 The prosecution has to show an unbroken chain of custody over the dangerous drugs. 37 Thus, the prosecution must be able to account for each link of the chain of custody from the moment the drugs are seized up to their presentation in court as evidence of the crime. 38 As part of the chain of custody procedure, the law requires, inter alia, that the marking, physical inventory, and photographing of the seized items be conducted immediately after seizure and confiscation. 39
The law further requires that the inventory and photography be done in the presence of the accused or the person from whom the items were seized, or his representative or counsel, as well as certain required witnesses, namely: (a) if prior to the amendment of RA 9165 by RA 10640, 40 a representative from the media and the Department of Justice, and any elected public official; or (b) if after the amendment of RA 9165 by RA 10640, an elected public official and a representative of the National Prosecution Service or the media. 41
In the instant case, the acts were allegedly committed on February 26, 2018; thus the two-witness rule under RA 10640 must be complied with during the inventory and photographing of the seized items. Records reveal that PO2 Paredes conducted an inventory of the seized items in the presence of accused-appellant, Alfonso, a representative from the media, and a barangay official. In the course of the inventory, they likewise took photographs of the seized items. Thus, the police officers complied with the witness requirement.
Furthermore, the records reveal that all of the links of the chain of custody are accounted for. There was no gap in the chain of custody from the time of marking and inventory, to laboratory examination, and up to the presentation of the sachets containing shabu to the court.
PO2 Paredes marked the seized items and conducted an inventory in the presence of the required witnesses. Then, PO2 Paredes and PO2 Rivera turned over the items to PO2 Lucky Velasco (PO2 Velasco), the duty investigator. They likewise took photographs of the seized items. Thereafter, PO2 Rivera delivered the seized items to the crime laboratory where, after examination, their contents tested positive for methamphetamine hydrochloride or shabu. Later, the items were delivered and identified in the trial court. All of these factual findings support the conclusion that the prosecution was able to account for all of the links of the chain of custody.
Moreover, accused-appellant did not present any substantial evidence to show that the integrity and evidentiary value of the shabu presented at the trial had been compromised at some point. On the contrary, the body of evidence adduced by the prosecution supports the conclusion that the integrity and evidentiary value of the seized evidence were preserved and safeguarded through an unbroken chain of custody. The records indicate that the illegal drug confiscated in the buy-bust was segregated, marked, inventoried, kept, and delivered to the forensic chemist by the police officers who received them from accused-appellant until the presentation and identification of the items in open court.
Hence, the Court finds that there was no gap in the chain of custody over the seized illegal drugs, and the integrity and evidentiary value thereof have been preserved. Accordingly, accused-appellant's conviction must stand.
With respect to the penalty imposed, the Court needs to modify it. Section 11, Article II of RA 9165 penalizes illegal possession of less than five (5) grams of methamphetamine hydrochloride or shabu with imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three Hundred Thousand Pesos (P300,000.00) to Four Hundred Thousand Pesos (P400,000.00). Here, accused-appellant was apprehended possessing a total of 0.284 gram of shabu. Thus, applying the Indeterminate Sentence Law, the penalty of imprisonment ranging from twelve (12) years and one (1) day, as minimum, to fourteen (14) years as maximum, and a fine of P300,000.00 is in order.
WHEREFORE, the appeal is DISMISSED. The Decision dated July 29, 2019 of the Court of Appeals in CA-G.R. CR HC No. 11461 is AFFIRMED with MODIFICATION in that accused-appellant Jimmy Alarcon y Roncal is sentenced to suffer the penalty of imprisonment of twelve (12) years and one (1) day, as minimum, to fourteen (14) years as maximum and ordered to pay a fine of P300,000.00 each in Criminal Case Nos. G-18-12837 and G-18-12838. aScITE
SO ORDERED." (HERNANDO, J., on official leave).
By authority of the Court:
(SGD.) MISAEL DOMINGO C. BATTUNG IIIDivision Clerk of Court
Footnotes
1.Rollo, pp. 22-23.
2.Id. at 3-21; penned by Associate Justice Marlene Gonzales-Sison with Associate Justices Zenaida T. Galapate-Laguilles and Ronaldo Roberto B. Martin, concurring.
3. CA rollo, pp. 76-89; penned by Judge Jonel S. Mercado.
4. 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:
xxx xxx xxx.
(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three hundred thousand pesos (P300,000.00) to Four hundred thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than five (5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, methamphetamine hydrochloride or "shabu", or other dangerous drugs such as, but not limited to, MDMA or "ecstasy", PMA, TMA, LSD, GHB, and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirements; or less than three hundred (300) grams of marijuana.
5. Entitled "An Act Instituting the Comprehensive Dangerous Drugs Act of 2002, Repealing Republic Act No. 6425, Otherwise Known as the Dangerous Drugs Act of 1972, as Amended Providing Funds Therefor, and for Other Purposes," approved on June 7, 2002.
6. As culled from the CA Decision, rollo, p. 4.
7. As culled from the CA Decision, id.
8. As culled from CA Decision, id. at 4-5.
9.Id. at 5.
10.Id.
11.Id.
12.Id. at 7.
13. See Judicial Affidavit dated April 18, 2018, records, pp. 183-184.
14.Rollo, p. 7.
15.Id. at 8.
16. CA rollo, pp. 76-89.
17.Id. at 80.
18.Id. at 89.
19.Id. at 76-89.
20.Id. at 82
21.Id. at 83.
22.Id. at 18-19.
23.Id. at 15-16.
24.Rollo, pp. 3-21.
25. CA rollo, pp. 76-89.
26.People v. Lacerna, 344 Phil. 100 (1997).
27. CA rollo, p. 80.
28.People v. Punzalan, 773 Phil. 72, 90 (2015). Citing People v. Lagahit, 746 Phil. 896, 907-908 (2014).
29. See People v. Lacerna, supra note 26.
30.Id.
31. 701 Phil 280 (2013).
32.Id. at 286.
33. See People v. Chi Chan Liu, 751 Phil. 146 (2015).
34.Id.
35.Id.
36.People v. Lumaya, 827 Phil. 473, 484 (2018).
37.Id.
38. See People v. Año, 828 Phil. 439 (2018). See also People v. Viterbo, 739 Phil. 593 (2014) and People v. Alagarme, 754 Phil. 449 (2015).
39. See People v. Gabunada, G.R. No. 242827, September 9, 2019.
40. Entitled "An Act to Further Strengthen the Anti-Drug Campaign of the Government, Amending for the Purpose Section 21 of Republic Act No. 9165. Otherwise Known as the 'Comprehensive Dangerous Drugs Act of 2002,'" approved on July 15, 2014, and became effective on August 7, 2014.
41.People v. Gabunada, supra note 39.