THIRD DIVISION
[G.R. No. 242212. September 30, 2020.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. DAVID CALABIA y ESPIRITU, accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution dated September 30, 2020, which reads as follows:
"G.R. No. 242212 (People of the Philippines v. David Calabia y Espiritu). — This is an appeal from the March 20, 2018 Decision 1 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 08407, which affirmed the May 31, 2016 Decision 2 of the Regional Trial Court of Pallocan West, Batangas City, Branch 3 (RTC) in Crim. Case No. 17201, finding appellant David Calabia y Espiritu guilty beyond reasonable doubt for violation of Section 5 of Republic Act (R.A.) No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002. Calabia was sentenced to suffer the penalty of life imprisonment and to pay a fine of P500,000.00.
Antecedents
Appellant was charged with illegal sale of dangerous drugs in an Information, the accusatory portion of which reads:
That on or about November 21, 2011 at around 7:30 o'clock in the evening at Brgy. Kumintang Ibaba, Batangas City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there knowingly, willfully and criminally sell, dispense or deliver two (2) heat-sealed transparent plastic sachets containing Methamphetamine Hydrochloride, more commonly known as shabu, with an aggregate weight of 0.42 gram, a dangerous drug, which is a clear violation of the above-cited law.
CONTRARY TO LAW. 3
Upon arraignment, appellant pleaded "not guilty" to the crime charged. A certain Christopher Balagbis 4(Balagbis) was also separately arrested and charged with illegal possession of dangerous drugs, arising from the same incident that led to the arrest of appellant. A joint trial against the two ensued.
Evidence for the Prosecution
The prosecution presented as witnesses SPO1 Edilberto Eje (SPO1 Eje), SPO3 Reynaldo Salazar (SPO3 Salazar), PO3 Erwin Cetron (PO3 Cetron), and SPO1 Rivero Reyes (SPO1 Reyes), among others.
Their combined testimony tended to establish that on the evening of November 21, 2011, SPO1 Eje received information from a confidential informant that appellant and Balagbis were selling shabu at Sitio Hilltop, Batangas City. Team Leader SPO3 Salazar ordered the conduct of a buy-bust operation. SPO1 Eje and PO3 Cetron went to the target place and saw two (2) men fitting the descriptions of appellant and Balagbis given by the informant. 5
SPO1 Eje approached the two men and said "Pare, pabili naman ng limang piso d'yan," handing a P500.00 bill to appellant. Appellant handed SPO1 Eje a folded paper containing two (2) heat-sealed transparent plastic sachets suspected of containing shabu. The police officers immediately placed the suspects under arrest, and SPO1 Eje was able to recover from appellant the P500.00 bill. SPO1 Eje then marked the two (2) plastic sachets as "EAE-1 112111" and "EAE-2 112111," representing his initials and the date. Meanwhile, PO3 Cetron also confiscated one (1) plastic sachet from Balagbis, which he marked as"EAE-3." 6
The buy-bust team brought appellant and Balagbis to the barangay hall, where a physical inventory of the confiscated items was made and photographs were taken, all in the presence of Prosecutor Nestor Gajete (Prosecutor Gajete) and Barangay Kagawad Enrico Andal (Andal). 7
The team then returned to their office. SPO1 Reyes prepared the Spot Report, Booking Sheet/Arrest Report, and Request for Laboratory Examination. SPO1 Eje then brought the Request for Laboratory Examination and the confiscated items to the crime laboratory. The request, together with the items, were received by SPO3 Jesus Agustin, Jr. (Agustin). Agustin thereafter turned over the specimens to the forensic chemist, P/Insp. Herminia Llacuna (Llacuna), for examination. The said specimens tested positive for Methamphetamine Hydrochloride. 8
Llacuna then gave the specimens to SPO1 Herbert Bereña (Bereña), who placed them in the evidence room for safekeeping until they were retrieved by Llacuna on March 21, 2012. 9 They were turned over by Llacuna to the Evidence Custodian of the Office of the City Prosecutor of Batangas City on the same day. 10
Agustin, Llacuna, Bereña and Prosecutor Gajete appeared before the RTC to testify, but the presentation of their testimonies was dispensed with in view of the stipulations agreed upon by the parties. 11
After the prosecution rested its case, the defense filed a Demurrer to Evidence. Finding sufficiency of evidence against appellant, the RTC denied the demurrer as regards him, but dismissed the case against Balagbis. 12
Evidence for the Defense
Appellant testified on his behalf, claiming that he was framed by the arresting officers. On the day of the incident, he came out of a convenience store when two (2) men in civilian clothes approached him and pointed a gun at him. They frisked him and ordered him to board their vehicle. At the barangay hall of Kumintang Ibaba, SPO1 Eje showed him three (3) plastic sachets on top of a table, and he was forced to point his fingers at the items, to make it appear that the same were recovered from him. 13
He further alleged that before he was taken to jail, he was brought to and detained at a hut where he was beaten. Appellant claims that a certain policeman named "Willy" asked for P200,000.00 in exchange for this freedom. 14
The RTC Ruling
In its May 31, 2016 Decision, 15 the RTC found appellant guilty of the crime charged. The RTC found that the prosecution sufficiently proved that sale of the dangerous drugs took place, and that the corpus delicti was presented in court, in compliance with the chain of custody requirements. The police officers who undertook the buy-bust operation positively identified appellant as the person they caught selling shabu. They proved the delivery of the contraband and the receipt by appellant of the marked money. An unbroken chain of custody and safeguarding of the corpus delicti were also established as the witnesses who came into contact with the confiscated drugs fully described how they were recovered, handled, and preserved up to the time they were presented in court.
With regard to the conduct of the inventory at the barangay hall, there was a public prosecutor and an elected official present to witness the same. The RTC noted that while no media representative was present, the integrity of the evidence had been preserved.
The RTC found no material, unexplained or irreconcilable inconsistencies in the testimonies of the prosecution witnesses. It gave full faith and credence to the testimonies of the apprehending officers whom it found to have performed their duties in a regular manner, and found no ill motive on their part to testify falsely against appellant.
The dispositive portion of the RTC Decision reads:
WHEREFORE, after a careful and circumspect evaluation of the evidence on hand, the Court finds accused DAVID CALABIA y ESPIRITUGUILTY beyond reasonable doubt of the crime of Violation of Section 5, Art. II of Republic Act No. 9165 otherwise known as the Comprehensive Dangerous Drugs Act of 2002, as amended and he is hereby sentenced to LIFE IMPRISONMENT and to pay a fine of FIVE HUNDRED THOUSAND (Php500,000.00) pesos. 16
The CA Ruling
In its March 20, 2018 Decision, the CA dismissed the appeal and affirmed the May 31, 2016 RTC Decision. The CA found that the testimonies of SPO1 Eje and PO3 Cetron duly established the identity of Calabia as the seller of the dangerous drugs, which constitute the object of the offense, as well as the P500.00 marked money which served as the consideration thereof. The CA gave credence to the narration of the prosecution witnesses who, as police officers, are presumed to have performed their duties in a regular manner.
The CA debunked appellant's assertion, that the buy-bust operation was questionable since there was no prior surveillance, by holding that there is no rigid textbook method of conducting buy-bust operations, and that the selection of appropriate and effective means of entrapping drug traffickers is best left to the discretion of the police.
The CA likewise dismissed appellant's argument that the prosecution failed to prove the existence of the buy-bust money, stating that the presentation of the money used in a buy-bust operation is not required. The marked money merely serves as corroborative evidence in proving guilt. Its presentation is not required as long as the sale of the dangerous drugs is adequately proven and the drug subject of the transaction is presented in court.
The CA also found the chain of custody of the seized drugs to have been unbroken. The alleged contradiction or inconsistency pointed out by appellant in the testimony of SPO1 Eje as regards the value of the seized items is only minor and does not affect SPO1 Eje's credibility. Neither did the CA find any fault in the marking of the third sachet recovered by PO3 Cetron from Balagbis, using SPO1 Eje's initials rather than PO3 Cetron's. The CA found nothing in the law that would have required PO3 Cetron to label the confiscated drugs using his own initials.
Undeterred, appellant filed a Notice of Appeal, elevating the case to this Court. This Court ordered the parties to file their respective Supplemental Briefs, if they so desired, but both parties manifested that they are ad opting their respective appeal briefs filed before the CA.
In his Appeal Brief, appellant assigns the following errors:
I
THE COURT A QUO GRAVELY ERRED IN FINDING ACCUSED-APPELLANT GUILTY OF VIOLATION OF SECTION 5, ARTICLE II OF R.A. NO. 9165 DESPITE THE PROSECUTION'S FAILURE TO SUFFICIENTLY ESTABLISH THE EXISTENCE AND REGULARITY OF THE BUY-BUST OPERATION.
II
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF VIOLATION OF R.A. NO. 9165 DESPITE THE BREAK IN THE CHAIN OF CUSTODY. 17
The Court's Ruling
After are view of the records, this Court finds that the acquittal appellant is in order.
To secure the conviction of an accused for the illegal sale of dangerous drugs under Sec. 5 of R.A. No. 9165, the prosecution must prove the presence of the following elements: the identities of the buyer and seller, the transaction or sale of the illegal drug, and the existence of the corpus delicti. The identity and integrity of the corpus delicti must be shown to have been preserved. 18 Here, the prosecution fell short of establishing that the procedure mandated to preserve the integrity of the corpus delicti was observed.
Existence and regularity
Appellant maintains that the absence of any prior surveillance tends to show that there was no prior confirmation as to the alleged report of the informant, and that the entrapment was executed on the basis of a base less report, which casts doubt on the veracity of the prosecution's account. Further, the absence of the buy-bust money in the Certificate of Inventory, Receipt of Property Seized, and Pre-operation Report creates reasonable doubt that a sale actually took place.
This Court agrees with the CA in ruling that there is no requirement for the conduct of a prior surveillance before executing a buy-bust operation. As held in People v. Padua: 19
A prior surveillance is not a prerequisite for the validity of an entrapment or buy-bust operation, the conduct of which has no rigid or textbook method. Flexibility is a trait of good police work. However the police carry out its entrapment operations, for as long as the rights of the accused have not been violated in the process, the courts will not pass on the wisdom thereof. The police officers may decide that time is of the essence and dispense with the need for prior surveillance. 20
As to the buy-bust money, this Court notes that the CA failed to squarely resolve appellant's concerns thereon. Appellant argues that the doubt lies not in the non-presentation of the buy-bust money before the trial court but in the existence of the buy-bust money before and during the buy-bust operation. Appellant correctly points out that the Certificate of Inventory, Receipt of Property Seized, and Pre-operation Report make no mention of any buy-bust money. This Court also notes that the buy-bust money does not appear in any of the photographs taken during the inventory of the items seized.
While such oversight on the part of the buy-bust team is not in itself fatal to the prosecution of the offense charged, the lower courts should not have disregarded appellant's arguments on the matter. Nevertheless, this Court does not subscribe to appellant's conclusion that no money was involved in the buy-bust operation. To reiterate, the buy-bust team members testified as to the existence and use of a P500.00 bill. A photocopy of a P500.00 bill with serial number WU370399 was offered in evidence as Exhibit "L" 21 for the prosecution, and the original bill was presented for comparison in open court. The same bill was mentioned in the Sinumpaang Salaysay of PO3 Cetron and SPO1 Eje (Exhibits "A" and "B" respectively), both of which were executed on November 22, 2011, immediately after the arrest of the appellant.
Issues concerning
Appellant alleges that the marking of the plastic sachet recovered by PO3 Cetron from Balagbis with SPO1 Eje's initials ("EAE-3 112111") was irregular and unsanctioned by any official guideline or memorandum. The manner of marking of the third sachet allegedly recovered from Balagbis is, however, irrelevant to the present charge against appellant, which is the sale of the two (2) sachets containing 0.42 gram of shabu marked "EAE-1 112111" and "EAE-2 112111." What is important is that the prosecution is able to establish that the two (2) heat-sealed plastic sachets were procured from appellant by the poseur-buyer, which the latter then marked and labeled immediately after effecting the arrest.
This Court, however, observes that the buy-bust team failed to strictly comply with the procedure laid down by law regarding the seizure and confiscation of illegal drugs. While such lapses were not challenged by appellant in his Appeal Brief, this Court finds it necessary to resolve the same since an appeal opens the entire record for review. 22
Sec. 21 of R.A. No. 9165, which was the pertinent provision in force at the time, provides for the chain of custody rule. The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official, who shall be required to sign the copies of the inventory and be given a copy thereof.
In this case, the Court observes that only two (2) of the three (3) required witnesses were present during the conduct of the inventory: Prosecutor Gajete and Barangay Kagawad Andal. No media representative was present during the inventory. The implementing rules of R.A. No. 9165 provide a saving clause in case of deviation from the required procedure: that non-compliance shall not render the seizure invalid, as long as there are justifiable grounds, and as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending team. Here, however, the prosecution failed to establish any justifiable ground for non-compliance with the procedure.
Regarding the witnesses to the inventory, SPO1 Eje testified:
Q: Who else did you call?
A: We also called up Lito Rendura and Boy Garino, but we were not able to contact them, sir.
Q: These persons that you called up and were not able to contact, who are they?
A: They are media representatives, sir. 23
On cross-examination, he further testified:
Q: And after failing to contact [these] media representative[s] you did not bother to contact any other representative from the media aside from [these] two?
A: Yes, ma'am.
Q: Despite the fact that the office of the [ABS-CBN] was across the road, is that correct?
A: Yes, ma'am. We decided to have a local media instead of the [ABS-CBN] to avoid video coverage and used coverage to protect the accused from publicity because they are not yet convicted. 24
SPO3 Salazar testified to a similar effect:
Q: How about the representative from the media, did you exert effort to contact any media representative?
A: That time when we were trying to fetch Mr. Rend[u]ra whom we used to call from the media, he was not available.
xxx xxx xxx
Q: And despite that you did not proceed to [ABS-CBN] TV 10 to seek for a media person in conducting the inventory?
A: Actually, I was thinking of doing that but I did not proceed because if we will be requesting the presence of the media person in that operation, automatically they will use video cam and it will violate the rights of the suspects.
Q: And because of your concern to the suspects you opted not to follow the legal procedure that there must be media representative present in the conduct of inventory? Just answer yes or no.
A: Yes ma'am. 25
The prosecution bears the burden of proving a valid cause for non-compliance with the procedure laid down in Sec. 21 of R.A. No. 9165. 26 It must establish that genuine and earnest efforts were employed in contacting and securing the presence of the required representatives. 27 Unfortunately, the prosecution failed to meet such burden.
When it became apparent to the members of the buy-bust team that their preferred media contacts were unavailable, they should have explored other possibilities or alternatives. One readily available alternative was to look for a representative from ABS-CBN, whose office was just across the road. While the police here in may have had an explanation for not reaching out to them at the outset, this Court finds that the reasoning given does not constitute justifiable grounds under the circumstances. The objective in protecting the accused from unnecessary publicity that might be garnered by video coverage, while laudable, is not a valid excuse for ignoring statutory requirements. Such requirements are in place also to protect the rights of the accused by ensuring the integrity of the seized or confiscated items. The procedure in Sec. 21 of R.A. No. 9165 is a matter of substantive law, and cannot be brushed aside as a simple procedural technicality. 28
The Court has repeatedly held that a mere statement that no representative was available, without so much as an explanation of whether serious attempts were employed to look for other representatives under the circumstances, is not acceptable as justifiable ground for non-compliance. 29 The lapse in the instant case is even more egregious since an alternative was seemingly available but such option was not even explored by the police operatives.
The failure to abide by the prescribed procedure casts doubt on the chain of custody, and therefore, this Court cannot proclaim that the integrity of the seized items was preserved. The prosecution, thus, failed to prove all the elements of the crime charged beyond reasonable doubt.
WHEREFORE, the March 20, 2018 Decision of the Court of Appeals in CA-G.R. CR-HC No. 08407 is REVERSED and SET ASIDE. Appellant David Calabia y Espiritu is hereby ACQUITTED of the crime charged on the ground of reasonable doubt. He is ORDERED IMMEDIATELY RELEASED from detention, unless he is confined for some other lawful cause. Let entry of final judgment be issued immediately.
Let a copy of this Resolution be furnished the Director of the Bureau of Corrections, Muntinlupa City for immediate implementation. The Director of the Bureau of Corrections is directed to report to this Court within five (5) working days from receipt of this Resolution the action he/she has taken.
SO ORDERED."
By authority of the Court:
(SGD.) MISAEL DOMINGO C. BATTUNG IIIDivision Clerk of Court
Footnotes
1.Rollo, pp. 2-14; penned by Associate Justice Edwin D. Sorongon, with Associate Justices Sesinando E. Villon and Maria Filomena D. Singh, concurring.
2. CA rollo, pp. 48-59; penned by Judge Ruben A. Galvez.
3.Rollo, p. 2.
4. Referred to as "Balagbas" in other parts of the rollo.
5.Rollo, p. 3.
6.Id. at 3-4; CA rollo, p. 51.
7.Id. at 4.
8.Id. at 4.
9. Records, p. 145.
10.Id. at 159.
11. CA Rollo, p. 52.
12. Records, p. 271.
13.Rollo, pp. 4-5.
14. CA rollo, pp. 53-54.
15.Supra note 2.
16. CA rollo, p. 59.
17.Rollo, p. 5.
18.People v. Macaumbang, G.R. No. 208836, April 1, 2019.
19. 639 Phil. 235 (2010).
20.Id. at 254.
21. Records, p. 41.
22.People v. Macaumbang, supra note 18.
23. TSN, May 8, 2012, p. 28.
24. TSN, June 5, 2012, p. 12.
25. TSN, April 23, 2013, pp. 22, 28-29.
26.People v. Rodriguez, G.R. No. 238516, February 27, 2019.
27. See People v. Umipang, 686 Phil. 1024, 1052-1053 (2012).
28.People v. Balubal, G.R. No. 234033, July 30, 2018.
29.People v. Rodriguez, supra note 26.