FIRST DIVISION
[G.R. No. 252665. March 18, 2021.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. BENJIE LUMBAB y PALANAS, accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated March 18, 2021 which reads as follows:
"G.R. No. 252665 (People of the Philippines, Plaintiff-Appellee, v.Benjie Lumbab y Palanas, Accused-Appellant). — This appeal 1 seeks to reverse and set aside the Decision 2 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 12700 dated 31 January 2020, which affirmed the Decision 3 dated 25 May 2018 of Branch 263, Regional Trial Court (RTC) of Marikina City in Criminal Case Nos. 2015-4612-14-D-MK and 2015-16390-MK, finding Benjie Lumbab y Palanas (accused-appellant) guilty beyond reasonable doubt of: (1) illegal sale and illegal possession of dangerous drugs, and (2) violation of Section 28 of Republic Act No. (RA) 10591, otherwise known as the Comprehensive Firearms and Ammunitions Regulation Act.
Antecedents
Accused-appellant was charged with violation of Sections 5 and 11, Article II of RA 9165, and of Section 28 of RA 10591, in three (3) separate Informations, the accusatory portions of which read:
For Criminal Case No. 2015-4613-D-MK:
That on or about the 21st day of January 2015, in the City of Marikina, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully and unlawfully, and knowingly sell, deliver and give away without authority from law to PO2 RONEL P. AGSAWA of the Station Anti-Illegal Drugs Specialist Operations Task Group (SAID-SOTG) of the Marikina City Police Station, posing as a buyer, a small heat-sealed plastic sachet containing white crystalline substance described and subsequently marked by the complainant-police officer as 'BPL-BB-01/21/15' containing 0.15 gram which gave positive result to the test for Methamphetamine Hydrochloride, a dangerous drug, in violation of the above-cited law.
CONTRARY TO LAW. 4
For Criminal Case No. 2015-4614-D-MK:
That on or about the 21st 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, did then and there willfully, knowingly and unlawfully have in his possession, direct custody and control seventeen (17) small heat-sealed transparent plastic sachets containing shabu described and subsequently marked by the complainant-police officer as follows:
|
BPL-1A-01/21/15 |
0.20 gram |
|
BPL-1B-01/21/15 |
0.32 gram |
|
BPL-1C-01/21/15 |
0.22 gram |
|
BPL-1D-01/21/15 |
0.15 gram |
|
BPL-1E-01/21/15 |
0.20 gram |
|
BPL-1F-01/21/15 |
0.21 gram |
|
BPL-1G-01/21/15 |
0.15 gram |
|
BPL-1H-01/21/15 |
0.17 gram |
|
BPL-1I-01/21/15 |
0.17 gram |
|
BPL-1J-01/21/15 |
0.20 gram |
|
BPL-1K-01/21/15 |
0.15 gram |
|
BPL-1L-01/21/15 |
0.15 gram |
|
BPL-1M-01/21/15 |
0.25 gram |
|
BPL-1N-01/21/15 |
0.40 gram |
|
BPL-1O-01/21/15 |
0.20 gram |
|
BPL-1P-01/21/15 |
0.39 gram |
|
BPL-1Q-01/21/15 |
0.34 gram |
which gave positive result to the test for Methamphetamine Hydrochloride, a dangerous drug, in violation of the above-cited law.
CONTRARY TO LAW. 5
For Criminal Case No. 2015-16390-MK
That on or about the 21st 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, did then and there willfully, knowingly and unlawfully have in his possession, direct custody and control one (1) unit ARMSCOR 9mm caliber pistol with magazine and loaded with five (5) live ammunitions, without any lawful authority or license to possess the same in violation of the above-cited law.
CONTRARY TO LAW. 6
The above cases and that of one Edilberto Lago y Delora in Criminal Case No. 2015-4612-D, being founded on the same facts and closely interwoven, were consolidated and heard jointly. 7 Upon arraignment, accused-appellant pleaded not guilty to the crimes charged against him. 8 After pre-trial was terminated, trial on the merits ensued. 9
Version of the Prosecution
On the morning of 21 January 2015, a confidential informant (CI) arrived at the Marikina Police Station and reported to the Station Anti-Illegal Drugs Special Operation Task Group (SAID-SOTG) the illegal drug peddling activities of a certain "Benjie," later identified as accused-appellant, and his companions at a billiard hall located in E. Jacinto Street, Sta. Elena, Marikina City. 10
Acting on said information, a team of operatives were immediately formed by the Chief of SAID-SOTG to conduct casing and surveillance and possible buy-bust operation. PO2 Ronel Agsawa (PO2 Agsawa) was designated to act as poseur buyer and was given a Php500.00 bill as buy-bust money. He placed his initials, "RA," at the upper right portion thereof and then prepared some documents needed in the operation. 11
PO2 Norberto Saboriendo (PO2 Saboriendo), on the other hand, was designated as his immediate back-up. After submission of the requisite coordination form and pre-operational report and consequently securing from PDEA the requisite control number for the operation, the team immediately proceeded to the place of the target person at Brgy. Sta. Elena, Marikina City. 12
Upon arrival thereat in the evening of same date, PO2 Agsawa and the CI entered the subject billiard hall. The CI then introduced PO2 Agsawa to "Benjie" as a "scorer." When inquired by Benjie as to how much worth of shabu he would buy, PO2 Agsawa replied, "Limang daan lang boss." 13 He then gave the buy-bust money to Benjie and the latter took a coin purse from his body bag and gave him one (1) piece heat-sealed transparent plastic sachet. He then pressed his cellphone as a pre-arranged signal to PO2 Saboriendo that the sale was consummated. Benjie, who later gave his name as accused-appellant, was arrested. 14
PO2 Agsawa then placed the sachet subject of the sale in his right pocket. After he arrested accused-appellant, he confiscated his body bag wherein he recovered the buy-bust money inside the wallet and seventeen (17) pieces more of heat-sealed transparent plastic sachets, together with other bills, weighing scale, empty transparent plastic sachets, stainless scissor, a Cherry mobile phone and a coin purse. He also recovered from the same body bag a .9mm caliber pistol with Serial No. 11178618 and five (5) live ammunitions. The seized items were inventoried and marked at the place of the arrest in front of accused-appellant, Brgy. Kagawad Guevarra, Brgy. Chairman Bernardino and media representative, Cesar Barquilla. 15 PO2 Diquit took pictures during the inventory and marking of the seized items. 16
While PO2 Agsawa was arresting accused-appellant, other persons inside the billiard hall scampered away. In the process, PO2 Saboriendo saw a male person throwing away a gray coin purse. He then immediately questioned the said male person and the latter replied that it was just nothing. PO2 Saboriendo then instructed said male person to pick up his aforesaid gray pouch and upon opening the same, its contents yielded, among others, a small plastic sachet containing suspected dried marijuana leaves which then prompted PO2 Saboriendo to arrest said male person, later identified as Edilberto Lago y Deloria (Lago). 17
Thereafter, they returned to their office to prepare the Chain of Custody, Request for Laboratory Examination and Drug Test Forms and other documents needed, together with accused-appellant and the seized items. After which, they went to the crime laboratory and turned over the seized evidence to PCI Margarita M. Libres (PCI Libres) for examination. The result yielded positive of Methamphetamine Hydrochloride. 18 The confiscated firearm and the live ammunitions were turned over to the EPD Crime Laboratory for ballistic examination. Said office certified that accused-appellant is not the rightful owner of the said firearm.
PO2 Agsawa further testified that he executed two (2) Inventory of Evidence relative to the incident. He identified the pieces of evidence he bought and confiscated from accused-appellant in open court due to the markings he placed on them, and the one he bought from accused-appellant Lumbab was marked BPL-BB-01/21/15 with his signature on it. 19
Version of the Defense
Accused-appellant denied the charges filed and maintained that the evidence was planted against him. He averred that on 21 January 2015, he went to the market to play billiard. While he was playing, two (2) men who introduced themselves as policemen suddenly frisked him and accused him of selling shabu. He was brought to the police station. 20
Ruling of the RTC
On 25 May 2018, the RTC rendered its Decision acquitting Lago and finding accused-appellant guilty beyond reasonable doubt of the crimes charged. In convicting accused-appellant, the RTC gave more credence to the testimony of the police. 21 The dispositive portion of the RTC's Decision reads:
WHEREFORE, above evaluation considered, the court finds accused EDILBERTO LAGO y DELORIA NOT GUILTY of the charge against him for failure of the prosecution to prove the guilt of said accused beyond reasonable doubt.
However, this court finds accused BENJIE LUMBAB Y PALANAS GUILTY of the following:
In Criminal Case No. 2015-4613-D-MK (Selling of Dangerous Drug under Section 5 of Republic Act (RA) 9165), accused BENJIE LUMBAB y PALANAS is sentenced to suffer the penalty of LIFE IMPRISONMENT and is ordered to pay the fine of FIVE HUNDRED THOUSAND PESOS (P500,000.00).
Likewise, in Criminal Case No. 2015-4614-D-MK (Possession of Dangerous Drugs under Section 11 of Republic Act (RA) 9165), accused LUMBAB is sentenced to suffer the penalty of imprisonment of TWENTY (20) YEARS and ONE (1) DAY to LIFE IMPRISONMENT.
He is likewise ordered, for this case, to pay the fine of FOUR HUNDRED THOUSAND PESOS (P400,000.00) as additional penalty for said offense.
In Criminal Case No. 2015-16390-MK (Violation of Section 28 of RA 10591 otherwise known as the Comprehensive Firearms and Ammunitions Regulation Act), accused LUMBAB is sentenced to suffer the penalty of EIGHT (8) YEARS and one (1) day to TEN YEARS OF IMPRISONMENT.
SO ORDERED. 22
Ruling of the CA
On 31 January 2020, the CA affirmed accused-appellant's conviction, viz.:
WHEREFORE, premises considered, the appealed decision dated May 25, 2018 of the RTC, Branch 263, Marikina City in Criminal Case Nos. 2015-4612-14-D-MK and 2015-16390-MK is hereby AFFIRMED.
SO ORDERED. 23
In affirming the RTC, the CA held that the accused-appellant was validly arrested, and that the prosecution was able to establish the elements of both offenses and the unbroken link in the chain of custody of the dangerous drugs. 24 Contrary to accused-appellant's averment that the police should have procured a warrant of arrest instead of conducting a buy-bust operation, the police officers have the discretion of choosing the form, mode or manner of conducting an operation and implementing the arrest of a person especially when he/she is found to be doing an illegal activity. 25
Anent the case of illegal possession of firearms and ammunition, the prosecution duly established the elements of the crime.
Hence, this appeal. 26
Issue
The sole issue in this case is whether or not the CA correctly affirmed accused-appellant's conviction for illegal sale and illegal possession of dangerous drugs punishable under Sections 5 and 11, Article II of RA 9165, and for violation of Section 28 of RA 10591.
Ruling of the Court
The appeal is dismissed.
Accused-appellant is guilty of
Verily, the elements of illegal sale of dangerous drugs under Section 5, Art. II of RA 9165 are: (a) the identity of the buyer and the seller, the object of the sale and the consideration; and (b) the delivery of the thing sold and its payment. 27 The delivery of the illicit drug to the poseur-buyer and the receipt by the seller of the marked money successfully consummate the illegal sale transaction. What is material is the proof that the transaction or sale actually took place, coupled with the presentation in court of the prohibited drug, the corpus delicti, as evidence. 28 On the other hand, the elements of illegal possession of dangerous drugs under Section 11, Article II of RA 9165 are: (a) the accused was in possession of an item or object identified as a prohibited drug; (b) such possession was not authorized by law; and (c) the accused freely and consciously possessed the said drug. 29
The RTC, as affirmed by the CA, found that the prosecution established all the foregoing elements of illegal sale and illegal possession of shabu. The Court sees no reason to disturb their common findings. Factual findings of the appellate court, affirming those of the trial court, are binding on this Court, unless there is a clear showing that such findings are tainted with arbitrariness, capriciousness or palpable error, which accused-appellant failed to establish in this case. 30
In Criminal Case No. 2015-4613-D-MK, the prosecution proved the guilt of the accused-appellant for illegal sale of shabu. Accused-appellant was caught in flagrante delicto by PO2 Agsawa who positively identified him to be the person who sold the illicit drugs to him during the buy-bust operation. 31 Likewise, the prosecution presented in evidence the sachet subject of the sale, marked as "'BPL-BB-01/21/15," the buy-bust money used for the transaction, and the other items seized from accused-appellant. PO2 Agsawa also recounted the details of the transaction from the time he met with the accused-appellant, to the time the sale of the illicit drugs transpired, up to accused-appellant' arrest. 32
Meanwhile, in Criminal Case No. 2015-4614-D-MK, the prosecution established the elements of illegal possession with the testimony of PO2 Agsawa and the presentation of the corpus delicti in court. Apart from the sachet of shabu sold by accused-appellant, PO2 Agsawa found seventeen (17) more transparent plastic sachets containing 3.87 grams of shabu. Accused-appellant freely and consciously possessed the said prohibited drug, without any authority or license to possess the same. 33
The Court likewise upholds the common findings of the RTC and the CA that there was compliance with chain of custody requirements, as well as those on preservation and disposition of dangerous drugs, as provided by Section 21 of RA 9165, as amended by RA 10640. 34 Here, PO2 Agsawa immediately marked the seized items at the place of seizure and took custody of the same. 35 The inventory and taking of photographs of the seized items were done at the place of the crime and in the presence of the accused-appellants and the mandatory witnesses: a representative from the media and elected barangay officials. 36 PO2 Agsawa brought the seized items to the crime laboratory, duly received by PCI Libres. 37 The seized items having tested positive for shabu, PCI Libres kept the same until its presentation in court. 38 Thus, We uphold the common findings of the RTC and the CA that there was compliance with the law as to the preservation and disposition of the dangerous drug, as well as the chain of custody requirements.
Accused-appellant is guilty of
We likewise confirm accused-appellant's conviction for the violation of Section 28 of RA 10591. The essential elements in the prosecution for the crime of illegal possession of firearms, which include explosives, ammunitions or incendiary devices, are: (a) the existence of subject firearm, and (b) the fact that the accused who possessed or owned the same does not have the corresponding license for it. 39
In the crime of illegal possession of firearms, the corpus delicti is the accused's lack of license or permit to possess or carry the firearm, as possession itself is not prohibited by law. To establish the corpus delicti, the prosecution has the burden of proving that the firearm exists and that the accused who owned or possessed it does not have the corresponding license or permit to possess or carry the same. 40
As correctly discussed by the CA, the existence of the subject firearm and live ammunitions was established by PO2 Agsawa when he testified that he confiscated the same from accused-appellant. The firearm, an Armscor .9mm caliber pistol with Serial Number 11178618, was marked as BPL-2A-01/21/15, while the five (5) pieces of live ammunitions were marked as BPL-2c-1 to BPL-2c-5, and the one (1) unit magazine was marked BPL-2B-01/21-/15. 41 There being a valid warrantless arrest and subsequent search on accused-appellant due to the buy-bust operation, the confiscated firearms are admissible in evidence. 42
Upon verification with the PNP's Firearms Information Management System, it was revealed that the firearm was licensed/registered to RJC Security System Agency Incorporation which was issued on 16 May 2014 with expiry date on 31 March 2016, and that accused-appellant is not a licensed or registered firearm holder of any kind or caliber. 43
The penalty and damages
We now come to the propriety of the penalties imposed.
While this Court finds that the penalty and fine imposed by the RTC in Criminal Case No. 2015-4613-D-MK are within the range provided by law, 44 We find that the penalty and damages imposed for Criminal Case No. 2015-4614-D-MK and Criminal Case No. 2015-16390-MK are improper and, hence, should be modified.
In Criminal Case No. 2015-4614-D-MK, accused-appellant is found in possession of 3.87 grams of shabu. He should then be sentenced to suffer imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Php300,000.00 to Php400,000.00. 45 Considering that the fine imposed by the RTC is within the range allowed by law, only the penalty of imprisonment shall be modified from a period of twenty (20) years and one (1) day to life imprisonment, to a period of twelve (12) years and one (1) day to twenty (20) years.
With respect to Criminal Case No. 2015-16390-MK, the Court finds that the RTC erred in sentencing accused-appellant to suffer the penalty of eight (8) years and one (1) day to ten (10) years of imprisonment.
As mandated by Section 28 (a) of RA 10591, the imposable penalty for unlawful possession of firearms should be prision mayor in its medium period or within the range of eight (8) years and one (1) day to ten (10) years. Considering that the unlawfully possessed firearm was loaded with ammunition, 46 the penalty of one (1) degree higher than that provided by Section 28 (a) should be imposed, or prision mayor in its maximum period.
The lower courts, however, failed to: (1) consider the aggravating circumstance provided in Section 28 (e) (1) of RA 10591, 47 and (2) apply the Indeterminate Sentence Law. In People v. Padlan, 48 the Court pronounced:
The Indeterminate Sentence Law (ISL) provides that if the offense is punished under a special law, as in this case, the maximum term shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. Nonetheless, the Court had already held in People v. Simon that when an offense is defined in a special law but the penalty therefor is taken from the technical nomenclature in the RPC, the legal effects under the system of penalties native to the Code would necessarily apply to the special law. x x x
Thus, applying the Indeterminate Sentence Law and taking into consideration the presence of an aggravating circumstance provided in Section 28 (e) (1) of RA 10591, the minimum term shall be taken from the penalty next lower in degree than the imposable period, which is prision mayor medium with a total range of eight (8) years and one (1) day to ten (10) years. The maximum term shall be taken from prision mayor maximum with a total range of ten (10) years and one (1) day to twelve (12) years, there being an aggravating circumstance. Accused appellant is thus sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor in its medium period, as minimum, to eleven (11) years of prision mayor in its maximum period, as maximum, for violation of Section 28 (a), in relation to Section 28 (e) (1) of RA 10591.
In fine, We affirm the conviction of the accused-appellant for the offenses of illegal sale and possession of shabu, and of violation of Section 28 of RA 10591, with modification as to the penalties imposed.
WHEREFORE, premises considered, the appeal is hereby DISMISSED. The Decision dated 31 January 2020 of the Court of Appeals in CA-G.R. CR-H.C. No. 12700 is hereby AFFIRMED with MODIFICATIONS. Accordingly, accused-appellant Benjie Lumbab y Palanas is found GUILTY beyond reasonable doubt:
1. In Criminal Case No. 2015-4613-D-MK, of Illegal Sale of Dangerous Drugs under Section 5 of Republic Act No. 9165, and is sentenced to suffer the penalty of life imprisonment. Accused-appellant is ordered to pay the fine of Php500,000.00;
2. In Criminal Case No. 2015-4614-D-MK, of Illegal Possession of Dangerous Drugs under Section 11 of Republic Act No. 9165, and is sentenced to suffer the penalty of imprisonment of twelve (12) years and one (1) day to twenty (20) years. Accused-appellant is ordered to pay the fine of Php400,000.00; and
3. In Criminal Case No. 2015-16390-MK, of Violation of Section 28 (a), in relation to Section 28 (e) (1) of Republic Act No. 10591, and is sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor in its medium period, as minimum, to eleven (11) years of prision mayor in its maximum period, as maximum.
SO ORDERED."
By authority of the Court:
(SGD.) LIBRADA C. BUENADivision Clerk of Court
By:
MARIA TERESA B. SIBULODeputy Division Clerk of Court
Footnotes
1.Rollo, pp. 21-23.
2.Id. at 3-20; penned by Acting Presiding Justice Remedios A. Salazar-Fernando and concurred in by Associate Justices Edwin D. Sorongon and Walter S. Ong of the Special First Division, Court of Appeals, Manila.
3. CA rollo, pp. 66-74; penned by Presiding Judge Armando C. Velasco.
4. Records, p. 30.
5.Id. at 59.
6.Id. at 87.
7.Rollo, p. 6.
8.Id.
9.Id. at 7.
10.Id. at 8; records, p. 5.
11.Rollo, p. 8.
12. Records, p. 5.
13.Id.
14.Rollo, p. 8.
15.Id.
16.Id. at 8-9; Records, p. 294.
17. Records, p. 6.
18.Rollo, p. 9.
19.Id.
20.Rollo, p. 11.
21.Id. at 73.
22. CA rollo, p. 74.
23.Rollo, p. 19.
24.Id. at 13-17.
25.Id. at 13.
26.Id. at 21-23.
27.People v. Cuevas, G.R. No. 238906, 05 November 2018 [Per J. Perlas-Bernabe].
28.See People v. Amaroi, 786 Phil. 139 (2016); G.R. No. 207517, 01 June 2016 [Per J. Peralta].
29.People v. Castillo, G.R. No. 238339, 07 August 2019 [Per J. Leonen].
30. People v. Bontuyan, 742 Phil. 788 (2014); G.R. No. 206912, 10 September 2014 [Per J. Perez].
31. Records, p. 291.
32.Id. at 289-295, 328.
33.Id. at 293-294.
34. Republic Act No. 10640, (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) which was approved on 15 July 2014 and became effective on 07 August 2014 or 15 days after its publication on 23 July 2014.
35. Records, pp. 293-295.
36.Id. at 294.
37.Id.
38.Rollo, p. 18.
39.People v. Olarte, G.R. No. 233209, 11 March 2019 [Per J. Gesmundo].
40.Id.
41.Rollo, p. 18; Records, pp. 320-322.
42.See Macad v. People, G.R. No. 227366, 01 August 2018 [Per J. Gesmundo]; see also Ongcoma Hadji Hamar v. People, 768 Phil. 195 (2015); G.R. No. 182534, 02 September 2015 [Per J. Brion].
43.Rollo, pp. 18-19.
44. Section 5 of RA 9165 provides that, "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. x x x"
45. Section 11 of RA 9165 provides that the following penalty 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: x x x Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from to 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 x x x."
46. Records, p. 115.
47. SEC. 28. Unlawful Acquisition, or Possession of Firearms and Ammunition. — The unlawful acquisition, possession of firearms and ammunition shall be penalized as follows:
(e) The penalty of one (1) degree higher than that provided in paragraphs (a) to (c) in this section shall be imposed upon any person who shall unlawfully possess any firearm under any·or combination of the following conditions:
(1) Loaded with ammunition or inserted with a loaded magazine;
xxx xxx xxx
48. 817 Phil. 1008 (2017); G.R. No. 214880, 06 September 2017 [Per J. Del Castillo].