FIRST DIVISION
[G.R. No. 234010. November 28, 2019.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.MYLENE LAT y WAGAN ALIAS "LEN-LEN", accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution datedNovember 28, 2019which reads as follows:
"G.R. No. 234010 — PEOPLE OF THE PHILIPPINES vs. MYLENE LAT y WAGAN alias "LEN-LEN"
The Case
This appeal assails the Decision 1 dated June 16, 2017 of the Court of Appeals in CA-G.R. CR HC No. 08431, affirming the conviction of Mylene Lat for violation of Section 5, Article II of Republic Act No. 9165 (RA 9165). 2
Proceedings Before the Trial Court
The Charge
By Information 3 dated January 12, 2012, appellant Mylene Lat was charged with violation of Section 5, Article II of RA 9165, viz.:
That on or about the 11th day of January, 2012, at about 2 o'clock in the afternoon, at Barangay II, Poblacion, Municipality of Mataasnakahoy, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law, did then and there, willfully and unlawfully sell, deliver and give away one (1) heat-sealed transparent plastic sachet containing methamphetamine hydrochloride, commonly known as "shabu," weighing 0.35 gram, a dangerous drug.
Contrary to law.
The case was raffled to the Regional Trial Court (RTC)-Branch 12, Lipa City, Batangas.
On arraignment, appellant pleaded "not guilty." 4 Trial ensued.
The Prosecution's Evidence
The testimonies of Police Officer 3 (PO3) Joseph O. Natividad and PO3 Marlon Suarez of Philippine National Police (PNP)-Mataasnakahoy Municipal Police Station, and Barangay Captain Jacinto C. Gardiola may be summarized in this wise:
PO3 Suarez testified that they had been conducting surveillance operations for about a year already on alleged illegal drug transactions in Mataasnakahoy, Batangas. 5 During the early week of January 2012, a confidential informant reported to PO3 Natividad and PO3 Suarez that appellant Mylene Lat was selling shabu in Barangay 2, Mataasnakahoy, Batangas. The confidential informant and appellant had later agreed to meet on January 11, 2012 in the area. Meantime, PO3 Natividad and PO3 Suarez specifically did a surveillance on appellant. They inquired from the barangay officials if they knew Mylene Lat. The barangay officials said they knew her as "Len-len." On January 11, 2012, a buy-bust team was formed where PO3 Suarez, PO1 Samuel Diesta, and PO1 Arthur Ariola were assigned as members, while PO3 Natividad got designated as poseur buyer. PO3 Natividad prepared the buy-bust money consisting of one (1) one thousand peso (P1,000.00) bill marked with his initials "JON." The team agreed on a pre-arranged signal: PO3 Natividad will scratch his head once the sale got consummated. 6
Around 2 o'clock in the afternoon, the buy-bust team, together with the confidential informant and media representative Lito Rendora proceeded to Barangay 2. The confidential informant then received a text message from appellant that she was already in the area. 7 Thereafter, appellant alighted from a jeepney and met up with the confidential informant and PO3 Natividad. The confidential informant asked appellant, "dala mo na ba?" to which the latter replied "oo."8 Thereupon, PO3 Natividad handed the marked money to appellant who, in turn, gave him one (1) heat-sealed plastic sachet. PO3 Natividad promptly scratched his head to signal that the sale had been consummated. PO3 Natividad introduced himself to appellant as a police officer and informed the latter of her constitutional rights, arrested her, and confiscated the marked money. 9
At the situs criminis, PO3 Natividad marked the seized item with "JON-MWL-1-11-12." 10 PO3 Suarez did the inventory in the presence of appellant, media representative Lito Rendora, and Barangay Captain Jacinto Gardiola. 11 Pictures were also taken of the seized items. 12
After marking and inventory, the team went back to the police station. Investigating officer PO2 James Vargas received the plastic sachet and marked money. 13 It was Chief of Police Ricero who prepared a Request for Laboratory Examination 14 and PO3 Natividad who remained in possession of the seized items and went to the Batangas Provincial Crime Laboratory. 15
SPO2 Jesus Agustin received the request and specimen from PO3 Natividad 16 while Forensic Chemist Herminia Llacuna did a qualitative examination of the specimen. Per Chemistry Report No. BD-008-2012, the specimen weighed 0.35 gram and tested positive for methamphetamine hydrochloride, a dangerous drug. 17
The prosecution submitted the following evidence: 1) Investigation Data Form; 18 2) Affidavits of Arrest; 19 3) Coordination Form; 20 4) Pre-Operational Report; 21 5) Spot Report; 22 6) Request for Laboratory Examination; 23 7) Inventory of Confiscated/Seized Items; 24 8) Request for Drug Test Examination; 25 9) Photocopy of the marked money with serial number ZL635111; 26 10) Photographs during the inventory; 27 11) Booking Sheet and Arrest Report; 28 12) Chemistry Report No. BD-008-2012; 29 and 13) Receipt of Object Evidence. 30
The Defense's Version
Appellant, on the other hand, testified that on January 11, 2012, her friend Romnick called her to go to Barangay 2 Poblacion, Mataasnakahoy, Batangas to receive the money he was to lend her. 31 There, she saw Romnick talking with the police officers who later arrested her. 32
The Trial Court's Ruling
By Decision 33 dated May 30, 2016, the trial court found appellant guilty as charged, viz.:
WHEREFORE, finding accused guilty beyond reasonable doubt of having committed the crime of drug pushing as defined and penalized under Section 5, Article II of Republic Act 9165 known as the Comprehensive Dangerous Drugs Act of 2002, as principal by direct participation and there being no modifying circumstances to be appreciated hereby sentences her to suffer the penalty of life imprisonment and to pay a fine of P500,000.00.
The sachet of shabu is ordered confiscated in favor of the government for destruction purposes pursuant to the provisions of RA 9165.
SO ORDERED. 34
The trial court found that the elements of illegal sale of drugs were all present; the plastic sachet subject of the sale contained white crystalline substance which yielded positive results for methamphetamine hydrochloride per Chemistry Report No. BD-008-2012; the integrity and evidentiary value of the seized item had been duly preserved from the time it was seized until it was presented in court; and appellant's denial cannot prevail over the positive testimonies of the police officers who identified her as the one who sold the dangerous drug to PO3 Natividad. 35
The Proceedings before the Court of Appeals
On appeal, appellant argued that she went to Mataasnakahoy, Batangas to borrow money from Romnick, not sell illegal drugs. 36 She did not receive copy of the inventory of the confiscated items, 37 and the inventory was not witnessed by a representative from the Department of Justice (DOJ). 38
For its part, the Office of the Solicitor General (OSG) through Assistant Solicitor General Bernard G. Hernandez and Senior State Solicitor Andrew James S. Ibarra, countered in the main: 1) all elements of illegal sale of dangerous drugs were proven; 39 2) there was substantial compliance with the chain of custody rule since the inventory of the seized item was made in the presence of appellant, a barangay captain, and a media representative; 40 3) the integrity and evidentiary value of the seized item was duly preserved; 41 and 4) the police officers regularly performed their duties in the arrest of appellant and seizure of the dangerous drugs. 42
By Decision 43 dated June 16, 2017, the Court of Appeals affirmed. It ruled that the prosecution sufficiently established there was a consummated sale of dangerous drug between appellant and PO3 Natividad. 44 The testimonies of both PO3 Natividad and PO3 Suarez on this score were positive and candid, therefore, should be given weight and credence over appellant's bare denial. 45
Also, the prosecution proved an unbroken chain of custody. The details on every person who touched the drug, how and from whom the drug was received, what happened to the drug while in the custodian's possession, and the state in which it was delivered to the court as evidence were clearly established. 46 Thus, despite the absence of a DOJ representative during the inventory, there was substantial compliance with Section 21 of the Implementing Rules and Regulations (IRR) of RA 9165 because the integrity of the corpus delicti was in fact duly preserved. 47
The Present Appeal
Appellant now seeks affirmative relief from the Court and pleads anew for a verdict of acquittal.
In compliance with Resolution 48 dated December 14, 2017, both appellant and the People manifested that in lieu of supplemental briefs, they were adopting their respective briefs before the Court of Appeals. 49
Issue
Did the Court of Appeals err when it affirmed appellant's conviction for violation of Section 5, Article II of RA 9165?
Ruling
In all prosecutions under RA 9165, the corpus delicti is the dangerous drug itself. 50 The integrity and identity of the seized drugs must be shown to have been duly preserved from the moment it was confiscated until presented in court. 51 For this purpose, the Court has adopted the chain of custody rule.
There are four (4) critical links in the chain of custody of dangerous drug: 52first, seizure and marking of the illegal drug recovered from the accused by the apprehending officer; second, turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, turnover and submission of the marked illegal drug seized by the forensic chemist to the court. 53
Section 21 of RA 9165 prescribes the standard in preserving the corpus delicti in illegal drug cases, viz.:
Section 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 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;
(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination;
(3) A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject item/s: Provided, That when the volume of the dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: Provided, however, That a final certification shall be issued on the completed forensic laboratory examination on the same within the next twenty-four (24) hours; (Emphasis supplied)
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The Implementing Rules and Regulations of RA 9165 likewise ordains:
Section 21. (a) The apprehending officer/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: 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, further, that noncompliance with 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 of and custody over said items.
Here, the prosecution failed to establish an unbroken chain of custody.
First, PO3 Suarez testified he was the one who inventoried the seized item. But there was nothing on record showing when, how, and why the custody of the seized item was transferred from PO3 Natividad to PO3 Suarez. PO3 Natividad even claimed he was the sole custodian of the seized item from the time it was marked until it was turned over to the crime laboratory. PO3 Suarez and PO3 Natividad testified, viz.:
PO3 Suarez:
Q: So what happened next after the marked money and the plastic bag containing shabu and other personal items were confiscated?
A: I prepared the inventory of the confiscated item, ma'am. 54
PO3 Natividad:
Q: After you marked the specimen at the area of operation until when do you have custody of the said specimen?
A: I took custody of the said specimen until I personally turned it over to the Crime Laboratory, ma'am.55
The testimony triggers one indubitable question: Did PO3 Natividad give the seized drug to PO3 Suarez? Or did PO3 Natividad keep custody of the drug while PO3 Suarez was conducting the inventory? As it was, the prosecution failed to clarify this matter in the proceedings below.
In People v. Sood, 56 the Court noted that the inconsistencies in the testimony of the buy-bust team at specific stages of the seizure, custody, and examination of the seized drugs created doubt on the integrity and identity of the corpus delicti.
But this is not all. The inventory and photograph of the seized item were made only in the presence of appellant, media representative Lito Rendora, and Barangay Captain Jacinto Gardiola; no DOJ representative was present. PO3 Suarez relevantly testified:
Q: Were there anyone else other than the members of your team at that time during the operation?
A: The Brgy. Captain Gardiola of Brgy. 2 and the member of the media Lito Rendora, ma'am.
Q: Who else signed the inventory of confiscated item?
A: Brgy. Captain Gardiola and Lito Rendora, ma'am.
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Q: Other than the elected official x x x and yourself who else signed the inventory of the confiscated items?
A: The arrested person, ma'am. 57
Section 21 of RA 9165 and its implementing rules require that physical inventory and photograph of the drug be done immediately after its seizure and confiscation in the presence of no less than three (3) witnesses, namely: (a) a representative from the media, and (b) the DOJ, and; (c) any elected public official — who shall all be required to sign copies of the inventory and given copy thereof. The presence of the three (3) witnesses was intended as a guarantee against planting of evidence and frame up. They were necessary to insulate the apprehension and incrimination proceedings from any taint of illegitimacy or irregularity. 58
In any event, the arresting officers failed to give any justifiable explanation for the absence of the required insulating witness from the DOJ. They were not even shown to have at least exerted earnest efforts to secure the presence of this witness, albeit they did not succeed, sans their fault. This is certainly a serious procedural lapse.
In People v. Dela Cruz, 59 the Court held that the inexcusable noncompliance with the insulating witness rule effectively invalidated the seizure and custody of the seized drugs, thus, compromising their identity and integrity. Consequently, appellants therein were acquitted.
Second, who had custody of the seized drug en route to the police station? Who received the seized drug at the police station for investigation and processing? Was there any investigation conducted at all on the seized item?
Again, going by the testimony of PO3 Suarez, the Court is faced with more questions than answers on the chain of custody of subject drug. PO3 Suarez testified it was PO2 James Vargas who received the seized item at the police station, thus:
Q: So Mr. witness after conducting the inventory of confiscated items, what happened to the marked money and the sachet confiscated from the accused?
A: We turned it over to the investigating officer, ma'am.
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Q: Who is your investigating officer who received the plastic sachet and the marked money?
A: PO2 James Vargas Ma'am. 60
But PO2 Vargas did not take the stand to testify on the circumstances surrounding the alleged investigation and to whom he turned over the seized item thereafter. Surely, this is another gap in the chain of custody of the corpus delicti in this case.
People v. Gajo61 ordains that persons who had custody of the seized item should be able to testify on precautionary measures taken to ensure that its integrity and evidentiary value remained intact from the time it was confiscated until presented in court as evidence, thus:
x x x to establish an unbroken chain of custody, every person who touched the seized illegal drug must describe how and from whom it was received; its condition upon receipt, including its condition upon delivery to the next link in the chain.
Third, PO3 Natividad testified that he turned over the seized item to the crime laboratory for qualitative examination, thus:
Q: Do you have proof to show that you were the one who actually turned over (the seized item) to the Crime Laboratory?
A: Yes, ma'am.
Q: What is that?
A: I signed as the person who turned over the specimen, ma'am.
Q: On the bottom part there is a rubber stamp marking PO3 Joseph O. Natividad, whose signature is that?
A: It was my signature, ma'am.
Q: Why did you affix your signature in this document?
A: Because I personally delivered the specimen, ma'am.
While PO3 Natividad asserted he was the one who personally delivered the seized item to the crime laboratory, nothing in his testimony showed that the seized item was properly sealed and stored prior its qualitative examination. In People v. Beran, 62 the arresting officer failed to explain how he preserved his exclusive custody of the seized item until he turned it over to the forensic chemist. The Court ruled that the integrity and evidentiary value of the seized item had been fatally compromised, warranting the accused's acquittal.
Further, PO3 Natividad failed to testify who actually received the seized item from the crime laboratory. In the same vein, SPO3 Jesus Agustin did not testify whether he personally received the item from PO3 Natividad prior to its examination and how he handled it, if at all. The omission to present these two vital witnesses 63 marks another break in the chain of custody.
Fourth, the last link involves the submission of the seized drug to the court for presentation as evidence. 64 Again, there is nothing here on record showing how the seized drug was handled before, during, and after it came to the custody of forensic chemist Llacuna up until it got presented in court. The parties merely stipulated that forensic chemist Llacuna received the request for laboratory examination and drug test examination, together with the specimen itself. But as to what specific precautionary steps the forensic chemist took to preserve the integrity and evidentiary value of the seized drug while it remained in her possession and prior to its presentation in court, not a single piece of evidence was presented.
In People v. Mola, 65 the turnover and submission of the seized item from the forensic chemist to the court was not established. Neither was there any evidence indicating how the sachet of shabu was handled during and after the laboratory examination, let alone, identifying the person/s who had custody of the item before it was presented in court as evidence. In that case, the Court also acquitted the accused of illegal sale of dangerous drug.
Indubitably, what we have here are individual links with breaks in between from which a chain of custody could not be seamlessly pieced together. As a result, the Court cannot conclude with moral certainty that the drug confiscated from appellant and presented in court was the same item which underwent laboratory examination.
It is desirable that the chain of custody be perfect and unbroken. In reality, however, this rarely occurs. 66 Section 21 (a), Article II of the Implementing Rules and Regulations (IRR) of RA 9165 67 offers a saving clause allowing leniency under justifiable grounds. There are twin conditions for the saving clause to apply: a) the prosecution must explain the reasons behind the procedural lapses and; b) the integrity and value of seized evidence had been preserved. A justifiable ground for non-compliance must be proven as a fact. 68
Here, the prosecution utterly failed to offer any explanation which otherwise excuses the buy-bust team's failure to comply with the chain of custody rule. There are just too many breaks or gaps here the effect of which negates the chain of custody rule. 69 In fine, the condition for the saving clause to apply was not complied with.
Finally, the prosecution cannot depart from the issue of a broken chain of custody by relying on the presumption of regularity in the performance of official functions. The presumption of regularity 70 will never be enough to fix broken links, which in this case, are already beyond repair. Here, the presumption was overturned by compelling evidence of the multiple breaches of the chain of custody rule.
WHEREFORE, the appeal is GRANTED. The Decision dated June 16, 2017 of the Court of Appeals in CA-G.R. CR HC No. 08431 is REVERSED and SET ASIDE. Appellant Mylene Lat y Wagan alias "Lenlen" is ACQUITTED in Criminal Case No. 0019-2012.
The Court DIRECTS the Superintendent of the Correctional Institution for Women, Mandaluyong City to cause the immediate release from custody of Mylene Lat y Wagan unless she is being held for some other lawful cause; and inform the Court of the action taken within five (5) days from notice.
Let an entry of final judgment be issued immediately.
SO ORDERED." Caguioa, J., on official leave; Inting, J., took no part; Hernando, J., acting member per S.O. No. 2726-B dated November 21, 2019.
Very truly yours,
(SGD.) LIBRADA C. BUENADivision Clerk of Court
Footnotes
1. Penned by Associate Justice Ramon R. Garcia and concurred in by Associate Justices Leoncia R. Dimagiba and Henri Jean Paul B. Inting (now a member of this Court), Rollo, pp. 2-17.
2. Comprehensive Dangerous Drugs Acts of 2002.
3. Record, p. 1.
4.Id. at 27.
5. TSN, July 31, 2012, p. 5.
6. Record, p. 6.
7.Rollo, p. 5.
8. Record, p. 6.
9.Id.
10.Id.
11.Rollo, p. 6.
12. TSN, October 2, 2014, p. 23.
13. TSN, April 1, 2013, p. 8.
14.Id. at 25.
15.Rollo, p. 6.
16. Record, p. 141.
17.Id. at 144.
18.Id. at 4.
19.Id. at 5-8.
20.Id. at 9.
21.Id. at 10.
22.Id. at 11.
23.Id. at 12.
24.Id. at 13.
25.Id. at 14.
26.Id. at 15.
27.Id. at 17.
28.Id. at 19.
29.Id. at 21.
30.Id. at 23.
31. TSN, December 1, 2015, pp. 3-4.
32.Id. at 10.
33. CA rollo, pp. 70-75. Penned by Judge Danilo S. Sandoval.
34. CA rollo, p. 75.
35.Id. at 74-75.
36.Id. at 54.
37.Id. at 63.
38.Rollo, p. 14.
39. CA rollo, p. 90.
40.Id. at 113.
41.Id.
42.Id.
43.Rollo, pp. 2-17.
44.Id. at 10.
45.Id. at 15.
46.Id. at 13.
47.Id. at 14.
48.Id. at 23-24.
49. Appellee's Manifestation — Rollo, pp. 26-28; Appellant's Manifestation — Rollo, pp. 32-34.
50. See People v. Jaafar, 803 Phil. 582, 591 (2017).
51. See Fajardo v. People, 691 Phil. 752, 758-759 (2012) citing People v. Gutierrez, 614 Phil. 285, 293 (2009).
52. As defined in Section 1 (b) of Dangerous Drugs Board Regulation No. 1, Series of 2002: x x x b. "Chain of Custody" means 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 of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, 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[.] x x x
53.People v. Dahil, 750 Phil. 212, 231 (2015).
54. TSN, April 1, 2013, p. 4.
55. TSN, October 2, 2014, p. 27.
56. G.R. No. 227394, June 6, 2018.
57. TSN, April 1, 2013, pp. 5-6.
58. See People v. Cabrellos, G.R. No. 229826, July 30, 2018 citing People v. Sagana, 815 Phil. 356, 373 (2017).
59. See 591 Phil. 259, 271 (2008).
60. TSN, April 1, 2013, pp. 6-8.
61. See 576 Phil. 576, 587 (2008).
62. See G.R. No. 218947, June 20, 2018.
63. See G.R. No. 217026, January 22, 2018.
64. See People v. Dahil, 750 Phil. 212, 237 (2015).
65. See G.R. No. 226481, April 18, 2018.
66. See People v. Gayoso, 808 Phil. 19, 34 (2017).
67. Section 21 (a) of the Implementing Rules and Regulations of RA 9165 provides:
(a) The apprehending office/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: 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, further that noncompliance with these requirement 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 of and custody over said items;
xxx xxx xxx
68. See People v. Jugo, G.R. No. 231792, January 29, 2018.
69.Supra note 66.
70. Section 3 (m), Rule 131, Rules of Court.