THIRD DIVISION
[G.R. No. 234360. January 31, 2018.]
ROSEMARIE PERAL y CERENADO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedJanuary 31, 2018, which reads as follows: TAIaHE
"G.R. No. 234360 (ROSEMARIE PERAL y CERENADO, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.) — This appeal seeks to undo the decision promulgated on January 16, 2017 in CA-G.R. CR No. 37011, 1 whereby the Court of Appeals (CA) affirmed the decision rendered on February 12, 2014 by the Regional Trial Court (RTC), Branch 75, in San Mateo, Rizal finding the petitioner guilty of a violation of Section 10 and Section 11 of Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002).
The petitioner was charged with violations of Section 10 and Section 11 of R.A. No. 9165 in separate informations that alleged:
Criminal Case No. 7582
That on or about the 1st day of June, 2004, in the Municipality of San Mateo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there wilfully, unlawfully and knowingly possess with intent to deliver or manufacture with intent to deliver equipment, instrument, apparatus and other paraphernalia containing traces of white Hydrochloride, a dangerous drug, knowing or under circumstances where one reasonably should know, that the said equipment, instrument, apparatus and other paraphernalia will be used to manufacture, compound, convert, produce, process, prepare, test, pack, repack, store, contain or conceal any dangerous drug.
CONTRARY TO LAW. 2
Criminal Case No. 7583
That on or about the 1st day of June, 2004, in the Municipality of Rodriguez, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there wilfully, unlawfully and knowingly have in her possession, direct custody and control 0.28 gram of white crystalline substance contained in one (1) heat-sealed transparent plastic sachet which gave positive result to the test for Methamphetamine Hydrochloride, a dangerous drug.
CONTRARY TO LAW. 3
Evidence of the Prosecution
In April 2004, PO2 Marlon Lacerna conducted an authorized test-buy operation to confirm the illegal drug activity of a female known by her alias of Bulaklak. She was later on identified as the petitioner. In his test-buy operation, PO2 Lacerna purchased from her a plastic sachet with white crystalline substance, which, when submitted to the crime laboratory, tested positive for shabu, a dangerous drug. With such result, PO2 Lacerna applied for a search warrant with the RTC. 4
At 5:40 in the morning of June 1, 2004, PO2 Lacerna and his team of police officers enforced the search warrant at the residence of the petitioner. The team was accompanied by two barangay tanod. She was rattled by the commotion caused by the raid, and she retreated to a room in her house where she locked herself in for a few minutes. PO2 Lacerna called out to her to come out and stay in the sala of the house. Immediately thereafter, the team began the search of her residence. 5
In the course of the search, the team found the following articles, namely: one plastic sachet containing white crystalline substance; five empty plastic sachets; a dagger from the person of the petitioner; two improvised tooters; two burners; a green-colored cigarette lighter; a roll of aluminum foil; one plastic container of rubber bands with assorted colors; a black ballpen; two tweezers; two burnt strips of aluminum foil; and a pack of empty plastic sachets. PO2 Lacerna marked and inventoried the seized articles right then and there. The items were later on endorsed to SPO2 Romanillo who brought them to Col. Aguilar for laboratory examination. The items tested positive for traces of shabu. 6
Evidence of the Defense
The petitioner insisted that men in civilian attire suddenly arrived at her place, opened their gate and proceeded inside her house; that the search warrant was only shown to her live-in partner; that she did not know the reason for the search; that after the search, she and her live-in partner were brought to Canlubang, Laguna; and that the men who conducted the search demanded P50,000.00 from them so that no case would be filed against her. 7 cDHAES
Ruling of the RTC
On February 12, 2014, the RTC found and declared the petitioner guilty of the crimes charged, and disposed thusly:
WHEREFORE, premises considered, judgment is hereby rendered finding the accused ROSEMARIE PERAL Y CERENADO, GUILTY in both cases. The prosecution having sufficiently established the guilt of the accused beyond reasonable doubt, accused Rosemarie Peral y Cerenado is hereby sentenced to suffer the penalty of imprisonment:
(1) In Criminal Case No. 7582 — Accused is hereby sentenced to suffer the penalty of imprisonment of TWELVE (12) YEARS and ONE (1) DAY, as minimum to FIFTEEN (15) YEARS and ONE (1) DAY, as maximum and to pay a fine of ONE HUNDRED THOUSAND PESOS (P100,000.00) with subsidiary imprisonment; and
(2) In Criminal Case No. 7583 — Accused is hereby sentenced to suffer the penalty of imprisonment of TWELVE (12) YEARS and ONE (1) DAY, as minimum to FIFTEEN (15) YEARS and ONE (1) DAY, as maximum and to pay a fine of THREE HUNDRED THOUSAND PESOS (P300,000.00) with subsidiary imprisonment.
In the meantime, the specimen "shabu" subject matter of Criminal Case No. 7583 is ordered forfeited in favor of the government and the Branch Clerk of Court is hereby ordered to deliver or cause the delivery of the same to the Philippine Drug Enforcement Agency (PDEA) for proper disposition.
SO ORDERED. 8
Decision of the CA
On January 16, 2017, the CA promulgated its assailed decision affirming the convictions of the petitioner. 9 It held that the articles seized, although not specified in the search warrant, were admissible for being within the plain view of the officers conducting the search; 10 that the officers did not unlawfully enter the residence of the petitioner because they presented the search warrant to her before entering; 11 that the chain of custody was preserved; that the inventory of the seized articles was made at her house and in the presence of two barangay tanod; and that the items were properly turned over for the laboratory examination. 12
On September 8, 2017, the CA denied the petitioner's motion for reconsideration. 13
Ruling of the Court
The appeal lacks merit.
The CA stated in its assailed decision:
x x x [T]he seizure of articles both listed and not listed in the search warrant does not render the same inadmissible. We emphasize that the police officers saw the unlisted articles during the implementation of the search warrants. "Such articles were in plain view of the officers as they implemented the search warrants and were authorized to seize said articles because of their close connection to the crime charged" which is the violation of R.A. 9165. Hence, apart from the sachet of metamphetamine hydrochloride, other seized articles, particularly, the improvised tooters, five empty plastic sachets, and two burnt strips of aluminum foil were validly seized in plain view and are admissible in evidence.
Further. Motion to quash warrant or suppress evidence under Section 14, Rule 126, must be filed with the trial court and not in this appeal.
We also do not agree with PERAL's position of an unlawful entry by the officers. In implementing a search warrant, "it is sufficient that the accused has notice of the officers, their authority and the purpose of the search and the object to be seized. x x x No precise form of words is required." From the facts, We find that prior to entering the house of PERAL, the officers presented the search warrant to the latter. To Our mind, there was compliance with the notice requirement.
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x x x PO2 Lacerna testified that he, together with his team conducted the search of PERAL's house after informing her who they were and that they were armed with a search warrant. He testified that during the search of the house, PERAL was in the house as well. He further testified that he prepared the inventory at the house of PERAL in the presence of two barangay tanods. The seized items were then transmitted to his team mate SPO2 Romanillo and then to their team leader Col. Rafael Aguilar for preparation of the request for qualitative and quantitative examination of the sachet of white crystalline substance and on the paraphernalia. A chemistry report was issued showing that the one sachet of white crystalline substance contained 0.28 grams of shabu and the (a) 5 empty plastic sachets; (b) two strips of the burnt aluminum foil; (c) two glass tubing (improvised tooters) tested positive for traces of shabu. PO2 Lacerna testified and identified in open court that the foregoing items are the same items seized from PERAL when they conducted the search. Clearly, there was compliance with the rule on chain of custody of the evidence preserving its energy. As correctly held by the RTC, the testimony of the police officer deserves "full faith and credence" where the accused only made denials and "failed to prove with clear and convincing evidence that the officers were inspired by any improper motive or were not properly performing their duty." 14
Nonetheless, the Court sees the need to correct the penalty fixed by the RTC and affirmed by the CA.
Section 10 of R.A. No. 9165 pertinently provides:
Section 10. Manufacture or Delivery of Equipment, Instrument, Apparatus, and Other Paraphernalia for Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. — The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person who shall deliver, possess with intent to deliver, or manufacture with intent to deliver equipment, instrument, apparatus and other paraphernalia for dangerous drugs, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain or conceal any dangerous drug and/or controlled precursor and essential chemical in violation of this Act.
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Section 11 of R.A. No. 9165 relevantly states:
Section 11. Possession of Dangerous Drugs. — 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 possess any dangerous drug in the following quantities, regardless of the degree of purity thereof: ASEcHI
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Otherwise, if the quantity involved is less than the foregoing quantities, the penalties shall be graduated as follows:
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(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from 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 such as, but not limited to, MDMA or "ecstasy", PMA, TMA, LSD, GHB, and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirements; or three hundred (300) grams or more but less than five (500) hundred grams of marijuana. x x x
The RTC and the CA prescribed 15 years and one day of imprisonment as the maximum of the indeterminate sentence in each case. Although the increment of one day was within the imposable penalty for the violations and, as such, was not legally erroneous, the Court deems it proper to delete the increment of one day in each case to conform with Talampas v. People, 15 where the Court pointed out as follows:
The Court finds to be unnecessary the increment of one day as part of the minimum term of the indeterminate sentence. It may be true that the increment did not constitute an error, because the minimum term thus fixed was entirely within the parameters of the Indeterminate Sentence Law. Yet, the addition of one day to the 10 years as the minimum term of the indeterminate sentence of Talampas may occasion a degree of inconvenience when it will be time for the penal administrators concerned to consider and determine whether Talampas is already qualified to enjoy the benefits of the Indeterminate Sentence Law. Hence, in order to simplify the computation of the minimum penalty of the indeterminate sentence, the Court deletes the one-day increment from the minimum term of the indeterminate sentence.
The RTC imposed subsidiary imprisonment in both cases. Subsidiary imprisonment is to be suffered by the convict who is unable to pay the fine because of his insolvency. The CA affirmed the imposition. Such imposition was legally unwarranted. The principal penalties in both cases involved imprisonment whose minimum was 12 years and one day, and the maximum was 15 years. Considering that the imprisonment was in excess of six years (the equivalent of the maximum incarceration under prision correccional under the Revised Penal Code), the deletion of subsidiary imprisonment is in order to accord with Article 39 (3) of the Revised Penal Code, which states:
ART. 39. Subsidiary penalty. — If the convict has no property with which to meet the fine mentioned in paragraph 3 of the next preceding article, he shall be subject to a subsidiary personal liability at the rate of one day for each eight pesos, subject to the following rules:
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3. When the principal penalty imposed is higher than prision correccional no subsidiary imprisonment shall be imposed upon the culprit.
xxx xxx xxx (bold underscoring supplied for emphasis)
WHEREFORE, the Court AFFIRMS the decision promulgated on January 16, 2017 subject to the MODIFICATION that petitioner ROSEMARIE PERAL y CERENADO is sentenced to suffer as follows:
(1) In Criminal Case No. 7582, the indeterminate sentence of TWELVE (12) YEARS and ONE (1) DAY, as minimum, to FIFTEEN (15) YEARS, as maximum, and to pay a fine of P100,000.00; and
(2) In Criminal Case No. 7583, the indeterminate sentence of TWELVE (12) YEARS and ONE (1) DAY, as minimum, to FIFTEEN (15) YEARS, as maximum, and to pay a fine of P300,000.00.
The petitioner shall further pay the costs of suit. (Martires, J., on official business.)
SO ORDERED."
Very truly yours,
(SGD.) WILFREDO V. LAPITANDivision Clerk of Court
Footnotes
1.Rollo, pp. 94-102; penned by Associate Justice Rosmari D. Carandang, with Associate Justice Mario V. Lopez and Associate Justice Myra V. Garcia-Fernandez concurring.
2.Id. at 12-13.
3.Id. at 13.
4.Id. at 94-95.
5.Id. at 95.
6.Id. at 95-96.
7.Id. at 97-98.
8.Id. at 16.
9.Id. at 101.
10.Id. at 99.
11.Id. at 100.
12.Id. at 100-101.
13.Id. at 124-125.
14.Id. at 99-101.
15. G.R. No. 180219, November 23, 2011, 661 SCRA 197, 205.