People v. Kendo y Isla

THIRD DIVISION

[G.R. No. 247713. June 23, 2021.]

PEOPLE OF THE PHILIPPINES, petitioner,vs. ALMA KENDO y ISLA and TENG KENDO y ISLA, respondents.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Third Division, issued a Resolution dated June 23, 2021 which reads as follows:

"G.R. No. 247713 (People of the Philippines v. Alma Kendo y Isla and Teng Kendo y Isla). — For this Court's resolution is an appeal filed by accused-appellants Alma Kendo y Isla (Alma) and Teng Kendo y Isla (Teng) assailing the August 1, 2018 Decision 1 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 09662.

The CA affirmed the July 7, 2017 Consolidated Decision 2 of the Regional Trial Court of Marikina City, Branch 193, in Criminal Case Nos. 2015-4606-D-MK and 2015-4607-D-MK which found accused-appellants guilty beyond reasonable doubt of the crimes charged under Republic Act No. 9165 (RA 9165) or the Comprehensive Dangerous Drugs Act of 2002.

In Criminal Case No. 2015-4606-D-MK, accused-appellants were charged with violation of Section 5, Article II of RA 9165 allegedly committed as follows:

That on or about the 8th day of January 2015, in the City of Marikina, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together, and they mutually helping and aiding with one another, without being authorized by law, did then and there willfully, unlawfully, and knowingly deliver and sell to one Intelligence Officer PO2 NORBERTO B. SABORIENDO, a poseur buyer, one (1) heat sealed transparent plastic sachet containing 0.80 gram of white crystalline substance subsequently marked as ("AKI/TKI-BB 1/8/15") which tested positive for methamphetamine hydrochloride (shabu), a dangerous drug, in violation of the above-cited law.

CONTRARY TO LAW. 3

In Criminal Case No. 2015-4607-D-MK, Alma was charged with violation of Section 11, Article II of RA 9165 allegedly committed as follows:

That on or about the 8th day of January 2015, in the City of Marikina, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law to possess or otherwise use any dangerous drugs, did then and there willfully, unlawfully and knowingly have in her possession, direct custody and control three (3) pieces heat sealed transparent plastic sachet[s] place[d] inside [her] coin purse containing 0.32 gram ("AKI1 1/8/15"); 4.50 grams ("AKI2 1/8/15"); 4.50 grams ("AKI3 1/8/15'') of methamphetamine hydrochloride, a dangerous drug, in violation of the above-cited law.

CONTRARY TO LAW. 4

Upon motion by the prosecution, the trial court consolidated the above-mentioned criminal cases. 5 During arraignment, the accused-appellants entered their respective pleas of not guilty. 6

Version of the Prosecution:

The prosecution presented the testimony of Police Officer 2 Norbeno B. Saboriendo (PO2 Saboriendo), the poseur-buyer and arresting officer who was then a member of Marikina City Police Station's Station Anti-Illegal Drug Special Operation Task Group. Anent the testimony PO2 Manuel Diquit (PO2 Diquit), the parties agreed to stipulate that if PO2 Diquit would be put on the witness stand, he will testify only as to the matters preparatory to the actual transaction as well as to what transpired after said transaction. 7

PO2 Saboriendo testified that on January 8, 2015 at about 11:00 a.m., a confidential informant (CI) informed their office about the selling of illegal drugs by a certain Alma and her companion at the vicinity of the Marikina City Sports Center and Amang Rodriguez Medical Center. 8 After PO2 Saboriendo relayed the report to Chief Police Inspector Jerry Flores (CPI Flores), the latter formed a team to conduct a buy-bust operation against accused-appellants, consisting of CPI Flores as team leader, PO3 Junar Olveda, PO2 Saboriendo as poseur buyer, PO2 Diquit, and several others. 9

As poseur-buyer, PO2 Saboriendo received two P500.00 bills to be used as buy-bust money, which he marked with his initials, "NBS." PO3 Olveda coordinated with the Philippine Drug Enforcement Agency and prepared the Pre-Operational Report and Coordination Form to be submitted to said agency. 10 After preparation of said documents, the team conducted casing and surveillance. At around 7:20 p.m. of the same day, they found Alma sitting at a waiting shed along Sumulong Highway.

After a brief wait, PO2 Saboriendo and the CI approached Alma and her companion. Alma and her companion stood up and asked them to walk with them. The CI then introduced PO2 Saboriendo as a buyer of shabu. 11 Alma asked PO2 Saboriendo how much shabu he would be buying, and the latter replied that he intended to buy P1,000.00 worth of shabu. PO2 Saboriendo then handed the buy-bust money to Alma. Upon receipt of the buy-bust money, Alma started conversing with her male companion in a language PO2 Saboriendo did not understand. The male companion then handed an orange-brown colored coin purse where Alma placed the marked money and retrieved one transparent plastic sachet suspected to contain shabu. 12

Thereafter, Alma handed the sachet to PO2 Saboriendo. Upon receiving the sachet, PO2 Saboriendo placed the sachet inside his right pocket then executed the agreed pre-arranged signal by placing his backpack in front of him. 13 When he saw the rest of his companions approaching, PO2 Saboriendo introduced himself as a police officer and arrested accused-appellants. After he arrested Alma and Teng, he recovered the orange-brown coin purse containing three heat-sealed transparent plastic sachets of shabu, the two P500.00 bills used as buy bust money, and cash. 14

The team called for a barangay official, Kagawad Jay Espidillion, city councilor Ronnie Acuna, and a member of the media, Cesar Barquilla. 15 Upon their arrival and in the presence of the three witnesses and the accused, PO2 Saboriendo marked the sachet he purchased from appellant with "AKI/TKI-BB 1/8/2015", while the other two sachets found in appellant's possession were marked as "AKI-1 1/8/15" and "AKI-3 1/8/15". 16 He likewise conducted the inventory of the seized items in their presence. Photographs of PO2 Saboriendo and the abovementioned individuals at the crime scene, as well as of the seized items, were submitted in evidence. 17 PO2 Saboriendo also accomplished the Inventory of Evidence 18 indicating the items seized during the buy-bust, which he signed along with the three witnesses, and the Chain of Custody Form 19 signed by PO2 Saboriendo and the forensic chemist.

After inventory of the seized items and while in possession thereof, PO2 Saboriendo and his team proceeded to Amang Rodriguez Medical Center for medical examination. Afterwards, they brought the accused-appellants to their office and thereafter, to the EPD Crime Laboratory. While thereat, the buy-bust team submitted a Request for Laboratory Examination 20 and turned over the pieces of evidence that they recovered to PC1 Margarita K. Libres (PC1 Libres), the forensic chemist, for medical examination. 21 An examination of the Chain of Custody Form 22 shows that PO2 Saboriendo personally turned over the seized drugs to the Crime Laboratory for examination, which was received by PC1 Libres and which she signed in front of PO2 Saboriendo. 23

The parties agreed to stipulate as to the testimony of PC1 Libres, to wit: (a) that she received a request for laboratory examination and that the specimens were the same specimens submitted to her by PO2 Saboriendo before she conducted the examination, which was found positive for shabu, a dangerous drug, as evidenced by Physical Science Report No. MCSO-D-003-15; 24 and (b) that upon written request of SAIDSOTG, EPD, Marikina City to the EPD Crime Laboratory Office, she conducted an examination of the urine sample taken from accused-appellants, which tested positive for shabu, as evidenced by Physical Science Report No. MCSO-DT-005-15 to MCSO-DT-006-15. 25

Version of the Defense:

The defense presented Alma as its sole witness. The parties agreed to stipulate that if put to the witness stand, Teng would just corroborate Alma's testimony. 26

Alma testified that on November 8, 2015, at about 7:00 p.m., the accused-appellants bought groceries and were on their way home when a male person covered Alma's mouth. 27 Both accused-appellants were then boarded into a van where the unidentified assailants demanded money. 28 When Alma said they had no money, they slapped her and pulled her hair. Both accused-appellants were also electrocuted. 29 By 10:30 p.m., their assailants informed them that they were police officers; they forced accused-appellants to alight from the van in a dark area, where there were items spread out on the street. Photographs were taken of the appellants along the street. 30

Thereafter, accused-appellants were brought to SOCO for drug testing and were forced to urinate. When Alma was unable to urinate, she was slapped. 31 Both were not immediately brought to the hospital for examination. The items they purchased were also taken away by the police officers. 32

Ruling of the Regional Trial Court:

In its July 7, 2017 Consolidated Decision, 33 the RTC found accused-appellants guilty of the crimes charged. The dispositive portion of the RTC's Decision reads:

WHEREFORE, premises considered, judgement is hereby rendered as follows:

In Criminal Case No. 2015-4606-D-MK, accused ALMA KENDO y ISLA and TENG KENDO y ISLA are hereby found GUILTY for Violation of Section 5, Article II of RA 9165. They are hereby sentenced to suffer penalty of life imprisonment and the payment of a fine in the amount of five hundred thousand (Php500,000.00) pesos.

In Criminal Case No. 2015-4607-D-MK, accused ALMA KENDO y ISLA, is hereby found GUILTY for violation of Section 11, Article II of RA 9165. She is hereby sentenced to suffer the penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine of Three Hundred Fifty Thousand (Php350,000.00) Peso.

xxx xxx xxx

SO ORDERED. 34

In so ruling, the trial court found that the prosecution satisfactorily established the elements for the illegal sale of dangerous drugs under Section 5 of RA 9165, i.e., that both accused-appellants consciously sold and delivered prohibited drugs to PO2 Saboriendo in consideration of P1,000.00. The prosecution satisfactorily established that Alma freely and consciously possessed shabu, whose possession was unauthorized by law, in violation of Section 11 of RA 9165. Significantly, the trial court found that the chain of custody requirement under Section 21 of RA 9165 was duly complied with since the confiscated pieces of evidence were inventoried, marked and photographed at the place of confiscation, and in the presence of city and barangay officials. 35

Ruling of the Court of Appeals:

Undeterred, accused-appellants appealed their conviction before the CA. 36 Upon review, the appellate court denied the appeal and modified the imposable penalty on Alma for possession of drugs to 20 years and 1 day imprisonment and a fine of 400,000,00. 37

In so ruling, the CA noted that the elements of the crimes charged against accused-appellants were proven by the prosecution beyond reasonable doubt. The appellate court noted that the selection of appropriate and effective means of entrapping drug traffickers is best left to the discretion of the police authorities, and that essential aspects of the chain of custody of the dangerous drugs seized were established in compliance with Section 21 of RA 9165. Moreover, the integrity of the evidence is presumed to have been preserved unless there is a showing of bad faith, ill will, or proof that the evidence has been tampered with, and defendant's defense of denial must fail against the positive testimonies of the prosecution witnesses. 38

Aggrieved, accused-appellants brought the case before Us, asserting the same arguments they raised before the CA. 39

Issues

The issues in this case are (a) whether accused-appellants are guilty of illegal sale of shabu, and (b) whether Alma is guilty of possession of shabu.

In essence, accused-appellants argue that the CA erroneously convicted them of the crimes charged despite the substantial gaps in the chain of custody of the confiscated shabu, which rendered their identity and integrity doubtful.

Our Ruling

There is merit in the appeal.

To sustain a conviction for illegal sale and illegal possession of dangerous drugs, the prosecution must establish the following elements:

In actions involving the illegal sale of dangerous drugs, the following elements must first be established: (1) proof that the transaction or sale took place and (2) the presentation in court of the corpus delictior the illicit drug as evidence.

On the other hand, in prosecutions for illegal possession of a dangerous drug, it must be shown that (1) the accused was in possession of an item or an object identified to be a prohibited or regulated drug, (2) such possession is not authorized by law, and (3) the accused was freely and consciously aware of being in possession of the drug. Similarly, in this case, the evidence of the corpus delicti must be established beyond reasonable doubt. 40

In the prosecution of illegal sale and illegal possession of dangerous drugs, the corpus delicti must be proven beyond reasonable doubt. The dangerous drug itself forms an integral part of the corpus delicti of the crime. Thus, the identity of the dangerous drugs must be established with moral certainty. 41

To remove any doubt as to the identity of the seized dangerous drugs, the prosecution must be able to prove that the illegal drug seized from the suspects is the very same substance adduced in court. 42 In this regard, Section 21 of RA 9165, as amended, prescribes the standard in preserving the corpus delicti in illegal drug cases, viz.:

SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. — The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the accused or the persons from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, That the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures: Provided, finally, That noncompliance of these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures and custody over said items.

xxx xxx xxx

The abovementioned provision embodies the chain of custody rule. Chain of custody refers to the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record shall include the identity and signature of the person who held temporary custody thereof, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition. 43 In relation to the foregoing, the prosecution must establish the following links in the chain of custody:

First, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer;

Second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer;

Third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and

Fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court. 44

After a thorough review of the records, the Court opines that the prosecution failed to establish an unbroken chain of custody of the seized drugs in violation of Section 21, Article II of RA 9165.

We focus on the second and fourth links.

The prosecution failed to show

The second link pertains to the turnover of the seized drugs to the investigating officer for purposes of conducting proper investigation and for the preparation of the necessary documents of the developing criminal case. 45 In this regard, accused-appellants allege that no evidence was adduced on how the arresting officers turned over the alleged seized items to the police investigator or to their evidence custodian when the same were brought to the police station, thereby failing to account for the second link in the chain of custody. We agree.

The records fail to identify the police officer who conducted the investigation after the buy-bust team brought the accused-appellants to the police station, or whether the seized shabu was indeed transmitted to an investigating officer. PO2 Saboriendo merely testified that after inventory of the seized shabu and their visit to Amang Rodriguez Medical Center, the buy bust team travelled to the police station, then to the EPD Crime Laboratory for laboratory examination of the seized specimens and turnover to PC1 Libres, the forensic chemist. While case records show that the request for laboratory examination was prepared by CP1 Flores, it was not stated whether he conducted the investigation or if he handled the seized drug while in the course of accomplishing the necessary documents for its transfer to the crime laboratory. Thus, a gap exists on who had custody during and after the investigation and how the seized sachets of shabu were stored and preserved during such time.

We note from an examination of the Chain of Custody Form 46 and PO2 Saboriendo's testimony 47 that he may have held on to the seized specimen from the time he recovered it from the appellants until he personally delivered the same for laboratory examination, and thus he could arguably account for the condition of the same while it was in his custody until turnover to PC1 Libres. Assuming this to be the case, we nevertheless find that the failure to turn over the specimens to the investigating officer remains a serious procedural breach which necessarily casts doubt on the integrity and evidentiary value of the seized items. In cases wherein the apprehending officer remained in possession of the seized items until turnover to the forensic chemist, we acquitted the accused for, among others, failure of the apprehending police officer to transfer the seized items to the investigating officer. 48 We stress that without identifying the officer to whose custody the seized item was actually entrusted at the police station, the second link in the chain of custody may not be deemed established. 49

Stipulations by the parties on the

Accused-appellants contend that although the testimony of the forensic chemist was dispensed with, her intended testimony did not include the condition of the specimen at the time it was submitted for forensic examination, and how the items were taken care of during and after the qualitative examination. We agree.

The prosecution is not precluded from dispensing with the testimony of the forensic chemist and entering into a stipulation with the defendant on the testimony of the forensic chemist. Nevertheless, establishing the chain of custody in drugs cases remains mandatory. Where parties stipulate on the testimony of the forensic chemist, such stipulation should include the precautionary steps required in order to preserve the integrity and evidentiary value of the seized item, thus: (1) the forensic chemist received the seized item as marked, properly sealed, and intact, (2) he or she resealed it after examination of the content, and (3) he or she placed his or her own marking on the same to ensure that it could not be tampered pending trial. 50 Absent any testimony regarding the management, storage, and preservation of the illegal drug allegedly seized herein after its examination, the fourth link in the chain of custody of the seized items could not be deemed established to a moral certainty. 51

In the case at bar, the parties stipulated on the proposed testimony and dispensed with the presentation of PCI Libres, the forensic chemist. However, the stipulation was confined to her receipt of the request for laboratory examination, the identity of the specimens she received from PO2 Saboriendo, and the results of the examination of the seized specimens. 52 The parties' stipulation did not mention that the abovementioned precautionary steps were in fact done by the forensic chemist to preserve their integrity and evidentiary value, nor discuss how the seized items were handled and stored post-examination.

Moreover, the failure to show as to who brought the seized items before the trial court is considered a serious breach of the chain of custody rule. 53 Here, the records do not show how the drugs were turned over to the court. The Minutes and Pre-Trial Order indicate that the sachets containing the seized specimens were brought to the court during pre-trial, and then marked as exhibits C to F. 54 Thereafter, during the direct examination of PO2 Saboriendo, the fiscal opened the orange and brown pouch and took out the plastic sachets containing the specimens for the identification of the witness. 55 There was no mention on who turned over the drugs to the court, or how the fiscal acquired the sachets. Given the foregoing, we find that the prosecution also failed to establish the fourth link of the chain of custody.

The substantial gaps in the chain

We concede that the realities and variables of actual police operations usually make an unbroken chain of custody physically and legally impossible. Thus, the saving clause in RA 9165, as amended, provides that the failure of the apprehending team to strictly comply with the chain of custody would not ipso facto render the seizure and custody over the items as void, provided that the prosecution satisfactorily proves that: (a) there is a justifiable ground for noncompliance, and (b) the integrity and evidentiary value of the seized items are properly preserved. For the saving clause to apply, the prosecution must duly explain the reasons behind the procedural lapses, and that the justifiable ground for non-compliance must be proven as a fact, because the Court cannot presume what these grounds are or that they even exist. 56

However, the Court finds that the prosecution may not seek refuge in the said clause. To begin with, the prosecution's failure to account for two links in the chain of custody is too substantial to merit the relaxation of the rules, and significantly casts doubt on the integrity and evidentiary value of the confiscated shabu. The prosecution likewise failed to at least allege and then prove any specific reason to explain these lapses in procedure.

It is settled that in criminal cases, the accused's guilt must be proven beyond reasonable doubt. 57 This burden lies with the prosecution. In this case, the failure of the drug enforcement officers to observe the chain of custody rule has compromised the integrity of the seized items and ultimately cast reasonable doubt on the guilt of accused-appellants. Accordingly, their acquittal is in order.

WHEREFORE, the appeal is hereby GRANTED. The assailed August 1, 2018 Decision rendered by the Court of Appeals in CA-G.R. CR-HC No. 09662 is REVERSED and SET ASIDE. Accused-appellants Alma Kendo y Isla and Teng Kendo y Isla are ACQUITTED for failure of the prosecution to prove their guilt beyond reasonable doubt. They are ordered immediately RELEASED from detention, unless they are confined for any other lawful cause.

Let a copy of this Resolution be furnished the Director General, Bureau of Corrections, Muntinlupa City and the Superintendent, Correctional Institution for Women, Mandaluyong City, for immediate implementation. Furthermore, the Director General of the Bureau of Corrections and the Superintendent of the Correctional Institution for Women are both DIRECTED to report to this Court the action they have taken within five (5) days from receipt of this Resolution.

Let entry of judgment be issued immediately.

SO ORDERED."

By authority of the Court:

(SGD.) MISAEL DOMINGO C. BATTUNG IIIDivision Clerk of Court

 

Footnotes

1.Rollo, pp. 3-26; penned by Associate Justice Celia C Librea-Leagogo and concurred in by Associate Justices Samuel H. Gaerlan (now a member of this Court) and Marie Christine Azcarraga-Jacob.

2. CA rollo, pp. 40-49; penned by Judge Alice C. Gutierrez.

3. Records, p. 2.

4.Id. at 29

5.Id. at 48-49.

6.Id. at 58-59.

7.Id. at 107.

8. TSN, August 17, 2016, p. 3.

9.Id. at 3-4.

10.Id. at 4-5.

11.Id. at 6.

12.Id. at 6-7.

13.Id. at 7-8.

14.Id. at 8.

15.Id.

16. Id. at 7; Record, p. 15.

17. Records, pp. 9-11.

18.Id. at 12.

19.Id. at 13.

20.Id. at 1.

21. TSN, August 17, 2016, p. 17.

22. Records, p. 13.

23.Id. at 13.

24.Id. at 2, 68.

25.Id. at 1, 74.

26.Id. at 130.

27. TSN, May 10, 2017, pp. 3-5.

28.Id. at 5-6.

29.Id. at 6-8.

30.Id. at 8-10.

31.Id. at 11.

32.Id. at 18.

33.Supra note 2.

34. CA rollo, p. 49.

35.Id. at 48.

36. Records, p. 150.

37.Rollo, p. 25.

38.Id. at 22-24.

39.Rollo, p. 12; CA rollo, p. 32.

40.People v. Soriano, G.R. No. 242828, February 10, 2021, citing People v. Morales, 630 Phil. 215 (2010).

41.People v. Pasiona y Lamagna, G.R. No. 247820, October 14, 2020.

42.Id.

43.De Guzman v. People, G.R. No. 246327, January 13, 2021.

44.Id. citing People v. Gayoso, 808 Phil. 19, 30 (2017).

45.People v. Quiam, G.R. No. 239633, February 17, 2021.

46. Records, p. 13.

47. TSN, August 17, 2016, p. 17.

48. See People v. Apol y Angel, G.R. No. 242016, December 10, 2019; See also People v. Amorin, G.R. No. 224884, December 10, 2019; See also People v Remigio, 700 Phil. 452, 469-470 (2012).

49.People v. Enad, 780 Phil. 346, 367 (2016).

50.De Guzman v. People, supra note 43.

51.Id.

52. Records, p. 4, 74.

53.People v. Pasiona y Lamagna, G.R. No. 247820, October 14, 2020.

54. Records, pp. 67-69.

55. TSN, August 17, 2018, p. 16.

56.People v. Apol, G.R. No. 242016, December 10, 2019.

57. RULES OF COURT, Rule 133, § 2.