People v. Victoriano y Gulapa

FIRST DIVISION

[G.R. No. 251714. April 26, 2021.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. MARY GRACE VICTORIANO y GULAPA, accused-appellant.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution dated April 26, 2021which reads as follows:

"G.R. No. 251714 (People of the Philippines v. Mary Grace Victoriano y Gulapa). — Mary Grace Victoriano y Gulapa (accused-appellant) assails the Decision 1 dated April 10, 2019 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 09851, which affirmed the Decision 2 dated September 29, 2017 of the Regional Trial Court (RTC) of Quezon City, Branch 79, finding her guilty beyond reasonable doubt of violating Section 5, Article II of Republic Act No. (R.A.) 9165, which punishes the Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals in Criminal Case No. RQZN-16-01503-CR.

Facts of the Case

Prosecution's Version

On February 5, 2016, a confidential informant of the National Bureau of Investigation (NBI), under the supervision of Agent Kristine Dela Cruz (Agent Dela Cruz), 3 contacted accused-appellant, also known as Amara, to negotiate the possible sale of methamphetamine hydrochloride or shabu. 4 Agent Dela Cruz, through the confidential informant, 5 concluded a deal with accused-appellant for the sale of one and one half kilograms (1.50kg) of shabu in exchange for P1.8 Million. P1.5 Million was to be paid in cash, while the rest was to be deposited in a yet undetermined bank account. 6 The transaction was set for the following day, February 6, 2016, at Robinson's Novaliches, Quezon City. 7

On the morning of February 6, 2016, Agent Dela Cruz briefed her team regarding the buy-bust operation. 8 Agent Dela Cruz was designated as poseur-buyer, while the other operatives 9 were designated as back-up officers. 10

Atty. Joel Tovera, Chief of the Anti-Illegal Drugs Division of the NBI, handed Agent De la Cruz two P1,000 bills as buy-bust money, to be placed on the top and bottom of a stack of boodle money to simulate the appearance of P1.5 Million. 11 Agent Dela Cruz affixed her signature on each of the P1,000 bills. 12 She then placed the buy-bust money and the boodle money in a plastic bag, which she put inside a paper bag. It was agreed that the pre-arranged signal to indicate the consummation of the sale was a "missed call" by Agent Dela Cruz to Executive Officer Atty. Jerome Bomediano (Agent Bomediano). 13

At around 3:00 p.m. of February 6, 2016, the buy-bust team 14 went to Robinson's Novaliches, Quezon City. The confidential informant notified accused-appellant at around 5:00 p.m. that she was already in the vicinity of Robinson's Novaliches. The confidential informant also told accused-appellant that the buyer of the shabu will be present during the transaction. For quick identification, accused-appellant advised the confidential informant that she was wearing a long-sleeved blouse with blue stripes, and a veiled black malong. 15 The confidential informant then shared the information with Agent Dela Cruz. 16

Accused-appellant alighted from a black Toyota Altis and went in front of the employee's entrance of Robinson's Novaliches. Upon seeing accused-appellant, Agent Dela Cruz alighted from her vehicle and approached the accused-appellant. Then, she informed accused-appellant that the money was inside the paper bag, and asked where the shabu was. Accused-appellant replied that the shabu was inside her shoulder bag. 17

Agent Dela Cruz told accused-appellant that she had to be certain that the shabu was inside the latter's bag before handing over the buy-bust money. Accused-appellant gave her bag to Agent Dela Cruz. Upon inspection, Agent Dela Cruz saw that there was a block wrapped with brown adhesive tape. Because the block was hard to touch, Agent Dela Cruz requested that the accused-appellant open it. Accused-appellant explained that the hardness was due to the packaging. Eventually, Agent Dela Cruz handed the buy-bust money to accused-appellant. 18

Agent Dela Cruz then executed the pre-arranged signal. 19 Agent Bomediano signaled the other operatives to arrest accused-appellant. Agents Escurrel and Mendoza, who arrested accused-appellant, subsequently recovered the buy-bust money from the latter. 20

Immediately after the arrest, the Toyota Altis that accused-appellant alighted from, and one red Toyota Corolla, revved their engines up and sped away. NBI operatives chased the two vehicles, eventually detaining the Toyota Altis, but losing the Toyota Corolla. The Toyota Altis was driven by Richard S. Ramos (Ramos), who was then arrested. 21 In the Toyota Altis, the NBI found: heat-sealed plastic sachets containing white crystalline substance, a 0.45 caliber firearm, drug paraphernalia and two empty shell casings. 22

The items seized from accused-appellant and Ramos were separately inventoried and marked at Robinson's Novaliches. 23 The block wrapped in brown adhesive tape seized from accused-appellant was marked "KDC-01 dated 06 Feb. 2016" 24 while the two P1,000 bills used as buy-bust money were marked as "KDC." 25

Barangay Kagawad Andy Taray (Kagawad Taray) of Barangay Pasong Putik Proper, and Jay-Ar Cunanan (Cunanan) from ABS-CBN witnessed the marking and inventory. Agent Dela Cruz, Kagawad Taray and Cunanan signed the Inventory of Seized Item dated February 6, 2016 which listed the items seized from accused-appellant. 26

The buy-bust team returned to the NBI Office together with accused-appellant and Ramos. There, Agent Dela Cruz prepared: (1) a Turn-Over for the Forensic Chemistry Division; and (2) a Request for Laboratory Examination and Safekeeping. 27

On the same day, Forensic Biologist Gemma Shiela Orbeta (Orbeta) received from Agent Dela Cruz a Request for Laboratory Examination and Safekeeping, together with "one (1) improvised block wrapped in brown adhesive tape containing white crystalline substance with markings "KDC-01 06 Feb 2016." 28 Upon conducting a qualitative examination on the specimen, Orbeta concluded that the improvised block with markings "KDC-01 06 Feb 2016" was indeed methamphetamine hydrochloride or shabu. Orbeta issued a certification dated February 7, 2016 embodying her findings. 29

Accordingly, the State filed an Information 30 charging the accused-appellant and Ramos with a violation of Section 5, Article II of R.A. 9165:

That on or about the 6th Day of February, 2016, in Quezon City, Philippines, the said accused, conspiring together and confederating with other persons whose true names, identities and other personal circumstances have not as yet been ascertained and mutually helping one another, without lawful authority, did then and there willfully and unlawfully sell, trade, administer, dispense, deliver/give away to another, distribute, to wit: one point four seven seven (1.477) kilograms of white crystalline substance containing Methamphetamine hydrochloride, a dangerous drug.

SO ORDERED. 31

Accused-appellant's Version

Accused-appellant denied the charges against her. She claimed that she was meeting a certain "Ate Alma" at Robinson's Novaliches. 32 "Ate Alma" just came from Baguio and had to give accused-appellant a present for a certain "Ate Marge." When accused-appellant saw "Ate Alma" she noticed that the latter was with another woman. "Ate Alma" identified this other woman as her niece "Tintin." 33

Then, "Ate Alma" told accused-appellant that she will go back to her vehicle to get the present for "Ate Marge," 34 in effect leaving "Tintin" and accused-appellant together. After 15 minutes, "Tintin" allegedly "held" accused-appellant. At the same time, a gray vehicle stopped in front of them, from which four men alighted. 35 The men allegedly forced accused-appellant to board the vehicle, and threatened to hurt her in case she resisted. 36 After four hours, 37 and upon arrival of a media representative, the items allegedly seized from accused-appellant were put on the hood of the gray vehicle and inventoried. 38 It was at that point that accused-appellant saw Ramos. Eventually, accused-appellant and Ramos were brought to the NBI Office in Manila. 39

Ruling of the Regional Trial Court

The trial court found accused-appellant guilty beyond reasonable doubt 40 as the State was able to establish the elements of illegal sale of dangerous drugs, 41 and the integrity and evidentiary value of the seized shabu. 42 The trial court also found accused-appellant's denial to be weak and self-serving 43 as it was unsubstantiated by clear and convincing evidence. 44

On the other hand, Ramos was acquitted because the prosecution failed to establish that he conspired with accused-appellant to sell shabu. 45

Ruling of the Court of Appeals

The CA affirmed the trial court's decision, finding that the prosecution was able to prove all the elements of the sale of a prohibited drug. 46 The CA also held that the integrity and evidentiary value of the shabu was preserved. 47

Proceedings before the Court

On July 6, 2020, the Court issued a Resolution directing the parties to file their respective supplemental briefs within 30 days from notice. 48

The Public Attorney's Office filed a Manifestation in Lieu of a Supplemental Brief 49 dated October 15, 2020 stating that accused-appellant has exhaustively argued her case in the Appellant's Brief dated April 4, 2018 filed with the CA. 50 Similarly, the Office of the Solicitor General, filed a Manifestation in Lieu of Supplemental Brief 51 dated October 20, 2020 declaring that it will no longer file a Supplemental Brief because the issues have been exhaustively addressed in its Appellee's Brief dated August 13, 2018 filed with the CA. 52

Ruling of the Court

The appeal is meritorious.

Before discussing the State's non-compliance with the requirements for the proper custody of seized dangerous drugs under R.A. 9165, as amended by R.A. 10640, 53 the Court must first re-examine the penchant of law enforcement officers for using boodle money during buy-bust operations. "Boodle money" means bundles of newspapers cut in the size of money bills. 54 They are not counterfeit money and do not appear like genuine bills. Hence, to a person who sees genuine money regularly, boodle money would appear as newspaper cut-outs rather than genuine peso bills. 55

In this case, it was alleged that Agent Dela Cruz delivered P1.5 Million to accused appellant as partial payment for one and 1.50kg of shabu, using two genuine two P1,000 bills with boodle money placed in between. 56 When asked by Agent Dela Cruz if she had the shabu in her possession, accused-appellant handed her bag to Agent Dela Cruz for inspection. Upon being satisfied that accused-appellant had the drugs, Agent Dela Cruz handed the two P1,000 bills and the boodle money to accused-appellant. 57

It was established that the alleged buy-bust operation transpired at around 5:00 p.m., 58 which was still considerably bright. 59 Thus, it is more in accord with human experience that the P1.5 Million with only two genuine P1,000.00 bills would appear dubious to accused-appellant, which could have ultimately led to the non-consummation of the alleged buy-bust operation. The narration of Agent Dela Cruz that the accused-appellant accepted the payment without raising any alarm is incredible.

Moreover, the prosecution's evidence discloses that the alleged transaction took place between Agent Dela Cruz and accused-appellant without the confidential informant. 60 The Court likewise finds this incredible considering the quantity and value of the shabu involved. Furthermore, it was the confidential informant who negotiated and finalized the details of the sale with accused-appellant, which effectively made Agent Dela Cruz a total stranger to the transaction, 61 making it highly doubtful that a legitimate buy-bust operation actually happened.

Now, We discuss the State's non-compliance with R.A. 9165, as amended by R.A. 10640, which prescribes the procedures to be observed in the custody and disposition of confiscated or seized dangerous drugs, otherwise known as the chain of custody.

The chain of custody consists of four links, namely: 62

The following links that must be established in the chain of custody in a buy-bust situation: 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. 63

Failure to observe the rules governing each link of the chain of custody tarnishes the credibility of the corpus delicti64 and raises doubts as to whether the punishable act under R.A. 9165, as amended, was actually committed by the accused. 65 Consequently, accused-appellant hinges her prayer for exoneration on the State's alleged failure to comply with the chain of custody rule. She claims that the State's failure to establish an unbroken chain of custody over the drugs allegedly seized from her must lead to her acquittal. 66

We agree.

After a meticulous review of the records, it becomes apparent that the State committed serious lapses in relation to the first link in the chain of custody. To begin with, the NBI failed to procure the presence of at least two witnesses (i.e., an elected public official and a representative of the National Prosecution Service or the media) 67 to observe the apprehension of accused-appellant and the seizure of the alleged shabu from her person.

Having the necessary witnesses at the time of apprehension and seizure is a vital aspect of the chain of custody because it would foreclose the pernicious practice of planting of evidence or compromising the integrity of the same. 68 In People v. Tomawis, 69 the Court extensively discussed the significance of this requirement:

The presence of the witnesses from the DOJ, media, and from public elective office is necessary to protect against the possibility of planting, contamination, or loss of the seized drug. Using the language of the Court in People v. Mendoza, without the insulating presence of the representative from the media or the DOJ and any elected public official during the seizure and marking of the drugs, the evils of switching, "planting" or contamination of the evidence that had tainted the buy-busts conducted under the regime of RA 6425 (Dangerous Drugs Act of 1972) again reared their ugly heads as to negate the integrity and credibility of the seizure and confiscation of the subject sachet that was evidence of the corpus delicti, and thus adversely affected the trustworthiness of the incrimination of the accused.

The presence of the three [now two] witnesses must be secured not only during the inventory but more importantly at the time of the warrantless arrest.

It is at this point in which the presence of the [two] witnesses is most needed, as it is their presence at the time of seizure and confiscation that would belie any doubt as to the source, identity, and integrity of the seized drug. If the buy-bust operation is legitimately conducted, the presence of the insulating witnesses would also controvert the usual defense of frameup as the witnesses would be able to testify that the buy-bust operation and inventory of the seized drugs were done in their presence in accordance with Section 21 of RA 9165.

The practice of police operatives of not bringing to the intended place of arrest the [two] witnesses, when they could easily do so — and "calling them in" to the place of inventory to witness the inventory and photographing of the drugs only after the buy-bust operation has already been finished — does not achieve the purpose of the law in having these witnesses prevent or insulate against the planting of drugs. 70 (Emphasis and underscoring in the original)

To be sure, the NBI could have easily secured the attendance of the necessary witnesses if it was so minded, given that a buy-bust operation is a well-planned activity. 71 The negotiation for the alleged sale of shabu was concluded on February 5, 2016, and the transaction took place on the next day, February 6, 2016 which gave the NBI sufficient time to coordinate with the necessary witnesses. Nevertheless, the NBI merely "called in" the necessary witnesses — the very act militated against in Tomawis — after the arrest of accused-appellant and the seizure of the drugs was accomplished. As narrated by Special Investigator Joel Otic:

Direct examination of SI Otic conducted by Assistant City Prosecutor Liezel Aquiatan:

Q: Now, after you returned to the place of transaction [after giving chase to and arresting Ramos], Mr. Witness, could you tell us what happened?

A: We summoned the Barangay official of the area and we also called media representatives, ma'am.

Q: Who made the request to Barangay officials to come to the place of transaction, Mr. Witness?

A: I could not recall anymore, ma'am, but they arrived.

Q: Who were those persons who arrived, Mr. Witness?

A: Barangay officials of that area and then there were media reporters, media representatives and I recall it was TV 5 who first arrived in the scene, ma'am. 72

Cross-examination of SI Otic conducted by Atty. Cristina Buendia:

Q: Mr. Witness, when did the representative from the barangay arrive?

A: The moment we arrived at the area [after giving chase to and arresting Ramos], there were already barangay tanods and then we invited them to summon the elected barangay officials. 73

Agent Dela Cruz's confirms that the necessary witnesses were not present during the arrest, contrary to the exhortation in Tomawis that the witnesses "be [present] at the time of the warrantless arrest such that they are at or near the intended place of arrest so that they can be ready to witness the inventory and photographing of the seized and confiscated drugs immediately after seizure and confiscation." 74

Cross-examination of Agent Dela Cruz conducted by Atty. Mario Mauleon:

Q: Madam Witness, you will agree with me that the coordination before the Barangay should be made before the alleged operation, am I correct?

A: During the inventory, sir.

Q: During the inventory, not during the operation?

A: Before the inventory is conducted and the search, sir.

Clarificatory question by the court:

Q: In this particular case, when did you coordinate with the Barangay?

A: After we have arrested Mary Grace Victoriano and Richard Ramos, your Honor. 75

The absence of the necessary witnesses in this case means that the block of shabu allegedly seized from her was not immediately inventoried and photographed as required under Section 21 of R.A. 9165. 76 The lapse of time between the arrest and the inventory-taking and photographing is also proven by the records. When the NBI chased Ramos after arresting accused-appellant, the sky was still bright. 77 However, when the photographs of the seized items were taken, the sky had become visibly darker. 78

In failing to secure the presence of necessary witnesses present at the time of apprehension and seizure, and to inventory and photograph the seized items immediately upon seizure and confiscation, the State was unable to shield the corpus delicti from doubts as to its origin, identity and integrity. Although 1.50kg of shabu cannot be considered miniscule, it is still susceptible to being planted, switched, contaminated or tampered with. This is especially true in this case, when the shabu was stored in block form 79 which makes it easy to transport and carry.

The Court also notes gaps in the chain of custody shabu while in the custody of the NBI. In particular, Agent Dela Cruz testified that she turned over the shabu to Agent Bomediano. 80 In Mallilin v. People, 81 We ruled that:

[The chain of custody] would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered in evidence, in such a way that every person who touched the exhibit would describe how and from whom it was, received, where it was and what happened to it while in the witness possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. [W]itnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. 82

Here, the State was unable to establish the circumstances surrounding Agent Bomediano's possession of the seized shabu. We have ruled that every person who takes possession of seized drugs must show how it was handled and preserved while in his or her custody to prevent any switching or replacement. 83 The State also failed to clearly demonstrate the condition of the seized shabu prior to its return to Agent Dela Cruz — the person who prepared of the Request for Laboratory Examination and Safekeeping 84 prior to delivery of the shabu to forensic chemist Orbeta.

Because of the lapses in the chain of custody — a vital component in establishing the accused's guilt beyond reasonable doubt 85 — We find that the State failed to overcome the constitutional presumption of innocence enjoyed by accused-appellant. Consequently, the State's invocation of the presumption of regularity in the performance of official duty cannot be countenanced as the glaring and serious errors committed by the NBI agents have not been sufficiently justified by the prosecution. 86

WHEREFORE, the appeal is GRANTED. The Decision dated April 10, 2019 of the Court of Appeals in CA-G.R. CR-HC No. 09851 is REVERSED and SET ASIDE. Accused-appellant Mary Grace Victoriano y Gulapa is ACQUITTED for failure of the prosecution to prove her guilt beyond reasonable doubt.

The Court ORDERS the Director General of the Bureau of Corrections to IMMEDIATELY RELEASE accused-appellant Mary Grace Victoriano y Gulapa, unless the latter is being held for some other lawful cause. The Director General of the Bureau of Corrections is likewise ORDERED to inform the Court of the date of the accused-appellant's release, or the reason for her continued confinement, within ten (10) days from receipt of notice. Copies shall also be furnished to the Director General of the Philippine National Police and the Director General of the Philippine Drug Enforcement Agency for their information.

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. Penned by Associate Justice Eduardo B. Peralta, Jr., with the concurrence of Associate Justices Ramon R. Garcia and Gabriel T. Robeniol; rollo, pp. 3-16.

2. Records, pp. 335-352.

3. TSN dated April 22, 2016, p. 6.

4.Rollo, p. 4.

5. TSN dated April 22, 2016, p. 6.

6.Rollo, p. 5.

7.Id. at 4.

8.Id. at 5.

9. Agent Jerome Bomediano, Special Investigator (SI) Joel Otic, Atty. Eduardo Ramos, SI Melvin Escurrel, SI Mendoza, and Agent John Mark Santiago; TSN dated April 27, 2016, p. 7.

10. TSN dated April 27, 2016, p. 7.

11.Rollo, p. 5.

12. TSN dated April 27, 2016, p. 3.

13.Rollo, p. 5.

14. Atty. Jerome Bomediano, Atty. Fatima Liwalug, Atty. Eduardo Ramos, Jr., John Mark Santiago, Melvin Escurrel, Eric Bringas, SI Joel Otic, Elson Saul, Salvador Arteche and Bertrand Gamaliel Mendoza; rollo, p. 5.

15.Rollo, p. 5.

16. TSN dated April 27, 2016, pp. 9-10.

17.Rollo, p. 5.

18.Id. at 6.

19. TSN dated April 27, 2016, p. 12.

20.Rollo, p. 6.

21.Id.

22. Records, p. 16.

23.Rollo, p. 6.

24.Id.

25. Records, pp. 26-27.

26.Id. at 27.

27.Rollo, pp. 6-7.

28. Records, pp. 126-127, 336-337.

29.Id.

30. Records, p. 3.

31.Id.

32.Rollo, p. 7.

33. TSN dated October 11, 2016, pp. 4-5.

34.Id. at 5.

35.Id.

36.Id. at 5-6.

37.Id. at 8-9.

38.Rollo, p. 7.

39. TSN dated October 11, 2016, pp. 12-13.

40. Records, p. 351.

41.Id. at 348.

42.Id. at 349.

43.Id. at 350.

44.Id.

45.Id. at 351.

46.Rollo, p. 8.

47.Id. at 13.

48.Id. at 23-24.

49.Id. at 28-29.

50.Id. at 28-32.

51.Id. at 33-38.

52.Id.

53. 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, July 15, 2014."

54.People v. Lacdan, G.R. No. 208472, October 14, 2019.

55.Id.

56.Rollo, p. 5.

57.Id.

58. TSN dated April 27, 2016, p. 7.

59. Records, pp. 161-163.

60. TSN dated April 27, 2016, pp. 10-11.

61. TSN dated April 22, 2016, p. 6.

62.People v. Kamad, 624 Phil. 289 (2010).

63.Id. at 304.

64.People v. Que, 824 Phil. 882, 896 (2018).

65.Id.

66. CA rollo, pp. 46-50.

67.People v. Esguerra, G.R. No. 243986, January 22, 2020.

68.People v. Globa, G.R. No. 241251, December 10, 2019.

69. 830 Phil. 385 (2018), cited in People v. Gamo, G.R. No. 213417, February 26, 2020.

70.Id. at 408-409.

71.People v. Globa, supra note 68, citing People v. Sood, G.R. No. 227394, June 6, 2018.

72. TSN dated September 23, 2016, p. 15.

73. TSN dated September 27, 2016, p. 11.

74.People v. Tomawis, supra note 69; People v. Vilas, G.R. No. 224881, June 17, 2020.

75. TSN dated May 10, 2016, pp. 4-5.

76. Republic Act No. 9165, Section 21, as amended.

77. Records, pp. 164-165.

78.Id. at 238.

79.Id. at 14.

80. TSN dated September 6, 2016, pp. 6-7.

81. 576 Phil. 576 (2008).

82.Id. at 587.

83.People v. Ismael, 806 Phil. 21, 35 (2017).

84. Records, p. 121.

85. G.R. No. 229046, September 11, 2019.

86.See People v. Sarabia, G.R. No. 243190, August 28, 2019.