People v. Baracuna

THIRD DIVISION

[G.R. No. 209033. December 7, 2015.]

PEOPLE OF THE PHILIPPINES, petitioner, vs. DENONGAPONG BARACUNA, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Third Division, issued a Resolution dated December 7, 2015, which reads as follows:

"G.R. No. 209033 (People of the Philippines vs. Denongapong Baracuna). — This is an appeal from the Decision 1 dated September 18, 2012 of the Court of Appeals (CA) in CA-G.R. CEB CR-HC No. 00826 which affirmed the conviction of Denongapong B. Baracuna (Baracuna) in the Decision 2 dated July 10, 2007 of the Regional Trial Court (RTC) of Cebu City, Branch 13, in Criminal Case No. CBU-68018, for violation of Section 5, Article II of Republic Act (R.A.) No. 9165, otherwise known as "The Comprehensive Dangerous Drugs Act of 2002".

Factual Background

An Information was filed against Baracuna for allegedly selling 0.19 gram of shabu contained in one (1) heat-sealed plastic packet in Cebu City on December 3, 2003, at about 5:15 p.m. 3

When arraigned, Baracuna pleaded "not guilty". After pre-trial was conducted, trial on the merits ensued. 4

According to the prosecution, Police Officer 3 Emmanuel Sarmiento (PO3 Sarmiento), Senior Police Officer 1 Artemio Tumakay, Jr. (SPO1 Tumakay) and Police Senior Inspector Mutchit Salinas were at the Philippine National Police (PNP) Drug Enforcement Unit Office on December 3, 2003, at about 5:15 p.m., when they received an information regarding the drug-peddling activities of a certain Jimmy, a Maranao, who was later identified as Baracuna, at Kinasang-an, Pardo, Cebu City. 5

The police officers formed a buy-bust team for an entrapment operation. The team, together with the Muslim informant, proceeded to the reported area onboard two motorcycles. PO3 Sarmiento, who acted as poseur-buyer, headed to the interior portion of the area with the Muslim informant. SPO1 Tumakay and PO2 Alexander Dalion (PO2 Dalion) served as "back-ups". Upon their arrival, the Muslim informant called Baracuna, and they conversed in their native tongue. Then the Muslim informant told PO3 Sarmiento to hand over the P500.00 to Baracuna as payment. Baracuna left in a short while and when he returned, he handed one (1) plastic packet of the alleged shabu to PO3 Sarmiento. The latter made a missed call to SPO1 Tumakay and PO2 Dalion as the agreed pre-arranged signal. He, afterwards, introduced himself as police officer to Baracuna and arrested the latter. Upon arriving at the scene with SPO1 Tumakay, PO2 Dalion frisked Baracuna and recovered the P500.00 buy-bust money from his possession. 6

Baracuna was taken to the police station and the incident was recorded in the police blotter. PO3 Sarmiento marked the confiscated plastic sachet with "DBB-12-03-03" and, together with PO2 Dalion, brought the same to the PNP Regional Crime Laboratory at Camp Sotero, Cabahug, Cebu City for chemical analysis. The laboratory examination conducted on the seized sachet filled with white crystalline substance yielded a positive result for shabu, a dangerous drug, as per Chemistry Report No. D-2299-2003. 7

The defense, on the contrary, presented Abdullah Dumarpa (Dumarpa) as its sole witness. He testified that he is a neighbor of Baracuna; that they are both Maranaos; that Baracuna peddles various items such as sunglasses, calculators and belts just like him; and that he did not know of anyone who bore any grudge against Baracuna. Baracuna did not anymore testify. 8 TAIaHE

Ruling of the RTC

On July 10, 2007, the RTC of Cebu City, Branch 13, rendered a Decision convicting Baracuna for violation of Section 5, Article II of R.A. No. 9165. Accordingly, he was sentenced to suffer life imprisonment and to pay a fine of P500,000.00. 9

In ruling for conviction, the RTC accorded great weight and merit to the straightforward and categorical statement of PO3 Sarmiento 10 that it was Baracuna who sold the shabu during the entrapment operation conducted at the dead end area of Paradise Village, Kinasang-an, Pardo, Cebu City on December 3, 2003. 11

The defenses of denial and frame-up of Baracuna were brushed aside as there was no clear and convincing evidence to substantiate it. 12

Ruling of the CA

On appeal, the CA rendered a Decision dated September 18, 2012 which affirmed the ruling of the RTC.

The CA ratiocinated that: (1) the presentation of the informant is not essential for conviction or indispensable for a successful prosecution because the informant's testimony would be merely corroborative and cumulative; (2) the informant's testimony may be dispensed with if the poseur-buyer would testify; (3) the presumption of regularity in the performance of official duties and the trial court's findings on the credibility of prosecution witnesses prevail over the evidence of Baracuna, who did not even dispute as to the irregularities of the buy-bust sale; (4) the chain of custody of the shabu was also established from the time it was confiscated, to the time it was submitted for laboratory examination until it was presented in court; and (5) the integrity of the shabu was not compromised because no missing link was shown regarding its handling. 13

Hence, this appeal.

Ruling of the Court

There is no cogent reason to deviate from the findings of the RTC, as affirmed by the CA.

The following elements for illegal sale of shabu were sufficiently proved: (1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery of the thing sold and the payment therefor. 14

In the instant case, the prosecution successfully established the following: (1) Baracuna's identity as the seller of shabu while PO3 Sarmiento was the buyer; (2) the object of the sale was one (1) small plastic sachet containing 0.19 gram of shabu which Baracuna personally handed to PO3 Sarmiento; (3) the P500.00 consideration for the shabu sold. Indeed, the transaction was consummated as proved by the fact that there was an exchange of shabu and P500.00 during the entrapment operation.

For the Court, the non-presentation of the Muslim informant is not fatal to the charge in view of the testimony of PO3 Sarmiento who personally witnessed the buy-bust operation conducted against Baracuna.

The defenses of denial and frame-up interposed by Baracuna should also be debunked there being no clear and convincing evidence to the contrary. The testimony of Dumarpa as defense witness failed to overcome the clear and positive testimonies of the prosecution witnesses because it merely focused on his acquaintance with Baracuna after the arrest. As correctly considered by the RTC and the CA, the same is immaterial because Dumarpa was not even present during the buy-bust operation. Thus, being caught in flagrante delicto of illegally selling shabu, Baracuna is considered liable for violating Section 5, Article II of R.A. No. 9165.

Lastly, the Court affirms the penalty imposed by the RTC, as affirmed by the CA, as it is well within the range provided for by law. The first paragraph of Section 5, 15 Article II of R.A. No. 9165 explicitly prescribes a penalty of life imprisonment to death 16 and a fine ranging from P500,000.00 to P10,000,000.00 against any person who shall illegally 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.

WHEREFORE, in view of the foregoing, the Decision dated September 18, 2012 of the Court of Appeals in CA-G.R. CEB CR-HC No. 00826 is AFFIRMED." (Jardeleza, J., no part in view of his participation in the Office of the Solicitor General; Leonardo-de Castro, J., designated additional Member per Raffle dated January 5, 2015.) cDHAES

Very truly yours,

 

(SGD.) WILFREDO V. LAPITANDivision Clerk of Court

 

Footnotes

1. Penned by Associate Justice Zenaida T. Galapate-Laguilles, with Associate Justices Edgardo L. Delos Santos and Pamela Ann Abella Maxino concurring; CA rollo, pp. 58-69.

2. Issued by Judge Meinrado P. Paredes; id. at 23-26.

3. Id. at 23.

4. Id. at 59.

5. Id. at 59-60.

6. Id. at 60.

7. Id. at 60-61.

8. Id. at 61.

9. Id. at 26.

10. Id.

11. Id. at 24-26.

12. Id. at 26.

13. Id. at 64-67.

14. People v. Montevirgen, G.R. No. 189840, December 11, 2013, 712 SCRA 459, 467.

15. Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. — 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 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.

xxx xxx xxx

16. The imposition of the death penalty has been proscribed with the effectivity of R.A. No. 9346, otherwise known as "An Act Prohibiting the Imposition of Death Penalty in the Philippines."